"Preserving Attorney-Client Privilege in Internal Investigations: Risks and Challenges Remain After D.C. Circuit’s High-Profile Decision in Barko"

In today's increasingly heightened enforcement environment, internal investigations have become more prevalent, as companies seek to prevent and mitigate improper conduct.  One of the most difficult tasks in conducting internal investigations is preserving the attorney-client privilege.  A failure to preserve the privilege can have devastating consequences. 

This Stroock Special Bulletin examines the recent trial court and appellate decisions in In re: Kellogg Brown & Root, Inc., which addressed a discovery dispute between the parties in a qui tam False Claims Act case, as to whether the defendant, Kellogg Brown & Root, Inc. should be compelled to produce responsive documents relating to investigations that the company conducted under its Code of Business Conduct, and which illustrate the challenges companies face in maintaining privilege in an internal investigation.