D.C. Circuit Court Clarifies Scope of Attorney-Client Privilege in Internal Investigations

July 7, 2014

On June 27, 2014, the United States Court of Appeals for the District of Columbia Circuit issued an opinion clarifying the application of the attorney-client privilege in internal investigations.

In In re Kellogg Brown & Root, Inc., ________ (June 27, 2014) (available here), the D.C. Circuit rejected a narrow construction of the Supreme Court’s seminal Upjohn decision, which held that the attorney-client privilege protects confidential employee communications made in a company’s internal investigation. The District Court had previously issued an order limiting the application of the attorney-client privilege to internal investigations whose primary purpose was to obtain legal advice. Recognizing that internal investigations are often motivated by many equally important factors, the Court of Appeals reversed the District Court and held that the attorney-client privilege applies if obtaining legal advice was a significant purpose of the investigation “even if there were also other purposes[.]” Id. at 7-8.

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