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DC Circuit Rules Internal Investigation Documents Protected from Disclosure in FCA Cases

In a ruling that reversed the decision of a lower court, the D.C. Circuit recently determined that specific documents detailing internal audits are to be considered protected from disclosure under attorney-client privilege rules.

The district court’s initial ruling had called for KBR, Inc. to produce various documents as evidence. The circuit court’s reversal, however, came because the court believed allowing such a disclosure would “inject uncertainty” into how attorney-client privilege should be applied in such cases.

Multiple rulings provide clarity

This is the second time the D.C. Circuit has addressed the protection of these documents, with the court having issued a writ of mandamus in June 2014. At that time, the court ruled the district court judge had not applied the correct legal standards when he ordered KBR to hand over 89 of its internal reports. After correcting the matter and clarifying the precedent on which the judge had been operating, the court remanded the issue back to the lower court for additional proceedings.

However, the district court still ordered the documents to be disclosed, even after the appellate court remanded the case, concluding privilege had been waived earlier in the case. The D.C. Circuit again ruled that the judge misunderstood how to apply the correct standard to its legal analysis of the case. The fact that the appellate court ruled not once, but twice, against the district court shows the strength of the protections in place for attorney-client privilege in communications.

To learn more about attorney-client privilege in communications and how it could impact a whistleblower claim, consult a knowledgeable Dallas attorney with Whistleblower Law for Managers.

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