United States: Implied Waiver Of Privilege In Internal Investigations: Barko Court Compels Production Of Internal Investigation Documents, Again

On November 20, 2014, the District Court for the District of Columbia once again ordered Kellogg, Brown and Root ("KBR") to produce all documents prepared as part of an internal investigation.  The District Court's decision comes after the D.C. Circuit, in an opinion that was welcome news for in-house counsel, found that the documents prepared during an internal investigation were protected by the attorney-client privilege since one of the "significant purposes" of the communications was to obtain or provide legal advice.  On remand, the District Court nonetheless ordered KBR to produce the documents because it found that, under the doctrine of implied waiver, KBR waived the privilege by placing in dispute what otherwise would have been privileged matters when it represented to the Court that the internal investigation resulted in no evidence of fraud.1


In June 2005, plaintiff-relator Henry Barko, a former contract administrator for KBR in Iraq, filed a qui tam False Claims Act ("FCA") lawsuit against Halliburton and its former subsidiary, KBR.  Barko alleged that KBR fraudulently inflated the costs of construction services on military bases in Iraq and passed on those costs to the U.S. Government.  From 2004 to 2006, before Barko's complaint was unsealed, Halliburton, pursuant to its Code of Business Conduct ("COBC"), investigated these allegations.  During discovery, Barko requested production of documents related to this internal investigation.  KBR confirmed that documents responsive to Barko's request existed but withheld them on attorney-client privilege and work-product protection grounds.

March 2014:  The District Court Finds the Attorney-Client Privilege Did Not Apply to KBR's Internal Investigation Documents and Compels Production

The District Court's earlier decision had ordered KBR to produce internal investigation documents because it found that the documents were created for a business purpose, i.e., compliance with regulatory disclosure requirements, and not to obtain legal advice.2 The District Court's order was widely criticized because internal investigations are often conducted with dual purposes:  to comply with business or regulatory requirements and to seek legal advice.  Moreover, internal investigations, even if conducted in great measure to meet business or regulatory requirements, may also be intended to reveal risks of future litigation.

As we noted in a previous blog post, it is likely that the District Court's in camera review provided an impetus for its decision to order production of the documents.  The Court termed KBR's investigation reports "eye-openers" because, in its view, the reports contained both direct and circumstantial evidence of fraud.

June 2014: The D.C. Circuit Vacates the District Court's Order and Finds That Internal Investigation Documents Are Protected by the Attorney-Client Privilege Where at Least One Significant Purpose of the Communications Is to Seek Legal Advice

On June 27, 2014, the D.C. Circuit vacated the District Court's order requiring the production of the internal investigation documents.3  The Court held the proper test for determining attorney-client privilege is "whether obtaining or providing legal advice was one of the significant purposes of the attorney-client communication."  Using this test, the privilege would apply to an internal investigation regardless of whether it was conducted pursuant to company policy or legal requirements, as long as one significant purpose was to obtain legal advice.

November 2014: The District Court Finds KBR Waived the Attorney-Client Privilege and Compels It to Produce Internal Investigation Documents

In its November 2014 order, the District Court held that KBR could not now "hide" behind the attorney-client privilege (which the D.C. Circuit had held existed) where the company had placed the contents of the investigation's report at issue.  The Court concluded that KBR impliedly waived the attorney-client privilege because its motion for summary judgment "intentionally put the contents of the COBC investigation at issue when it represented that its internal investigation of Barko's allegations yielded no reasonable grounds to believe fraud may have occurred."4

The Court determined that KBR put the contents of the COBC investigation files at issue at Rule 30(b)(6) depositions.  The deponent testified that he reviewed the investigation files in preparation for the deposition.  KBR's attorney blocked Barko's attempts to question the deponent regarding what reports and evidence supported KBR's decision not to provide notice of potential kickbacks or fraud to the Department of Defense.  Then, KBR's attorney examined his own 30(b)(6) witness and solicited statements to the effect that if a KBR investigation yielded evidence of fraud or kickbacks, KBR always reported that to the government.  Since KBR had provided no such notice, the clear implication was that no wrongdoing was found in the investigation.

KBR later used the witness' statements in its statement of material undisputed facts its motion for summary judgment.  According to the Court, KBR thereby "injected the COBC contents into the litigation by itself soliciting [its witness'] Rule 30(b)(6) testimony."5 Thus, the Court concluded that "fairness dictates that all the documents in question be produced so that [plaintiff is] able to examine the documents to challenge whether the withheld documents actually support the inferences that [defendants'] attorneys suggested to this Court."6

Using the same fairness considerations, the Court also found that KBR waived the attorney-client privilege when its witness examined COBC documents to refresh his recollection before testifying as KBR's Rule 30(b)(6) witness.  The Court emphasized that the COBC documents "have almost no attorney opinion materials; instead investigator-taken statements and investigator reports predominate."7  In addition, the Court found that KBR's testimony and repeated suggestion that the COBC documents did not contain any evidence of fraud weighed in favor of disclosure.8 Using this fairness analysis, the Court held that disclosure was required under Federal Rule of Evidence 612, which allows an opposing party to inspect writings a witness used to refresh his memory.  The Court noted, however, that "[i]n most cases, Rule 30(b)(6) witnesses who have examined privileged materials before testifying will not waive the privilege."9

Immediately after the Court's Opinion and Order, KBR filed a Motion for Reconsideration.  On December 17, 2014, the District Court denied KBR's motion for reconsideration, denied KBR's motion for certification of an interlocutory appeal, and denied a stay of the Court's November 20, 2014 order pending the disposition of KBR's mandamus position.  The Court did, however, grant a seven day stay of the order so that KBR could file an emergency motion under Circuit Rule 27(f).10  On December 19, 2014, KBR filed for an emergency stay as well as a mandamus petition to vacate the court's November 20, 2014 and December 17, 2014 orders.  The Court of Appeals granted the administrative stay of the orders; briefing on the issue is scheduled to be completed February 23, 2015.  Meanwhile, the District Court denied KBR's motion to stay all proceedings, allowing Barko to continue with depositions.11

Conclusion and Lessons

The District Court's order signals that companies need to carefully consider revealing internal investigation findings in litigation.  However discretely or summarily presented, such statements could have the unintended effect of waiving privilege.  Relying on such waiver, the DistrictCourt in Barko managed to reach its original result – compelling KBR to produce internal investigation documents – despite the Circuit Court's broad application of the attorney-client privilege.  A court's "fairness" analysis is very flexible and fact-dependent, and may skew in favor of finding a waiver of privilege, and thus disclosure (as in Barko), of the entire investigative file.  Barko, if it stands, teaches that companies must completely avoid making arguments to a court, or elsewhere to third parties (e.g. in presentations to the government), that rely on the conclusions of internal investigations if they determine those investigations must remain privileged.


1.United States ex rel. Barko v. Halliburton Co., 1:05-CV-1276, Opinion & Order (D.D.C. Nov. 20, 2014) ("Nov. 20, 2014 Order").

2.United States ex rel. Barko v. Halliburton Co., 1:05-CV-1276, 2014 WL 1016784 (D.D.C. Mar. 6, 2014) vacated sub nom. In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014).

3.In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014).

4.Nov. 20, 2014 Order at 10.

5.Id. at 21.

6.Id. at 23.

7.Id. at 25.

8.Id. at 25-26.

9.Id. at 26.

10.United States ex rel. Barko v. Halliburton Co., 1:05-CV-1276, Opinion & Order (D.D.C. Dec. 17, 2014).

11.United States ex rel. Barko v. Halliburton Co., 1:05-CV-1276, Opinion & Order (D.D.C. Jan. 10, 2015).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
3 Dec 2018, Other, Los Angeles, United States

National Contract Management Association’s Government Contract Management Symposium

20 Feb 2019, Seminar, Orange, United States

The annual seminar addressing changes and developments in state and federal wage and hour laws is a unique one-day program and hundreds of California employers, personnel managers, controllers, attorneys, payroll managers, and supervisors attend each year.

21 Feb 2019, Seminar, Orange, United States

The seminar is designed to provide a guide to Human Resource Officials, Personnel Specialists, Consultants, Supervisors and other management officials through the ever-increasing maze of state and federal employment discrimination laws.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions