Recent Decision Underscores Need for Involvement of Counsel in Internal Investigations

A recent federal court decision raises concerns about the ability of companies to maintain privilege over materials generated in connection with internal investigations. The case, United States ex rel. Barko v. Halliburton Company et al., No. 1:05-CV-1276 (D.D.C. Mar. 6, 2014), involved allegations by a qui tam relator that his employer committed abuses in connection with government contracts for military support in Iraq. The relator sought to compel documents related to investigations into the same alleged misconduct performed by his employer pursuant to its Code of Business Conduct (COBC). The court ordered the company to produce the documents, reasoning they were not privileged because the investigators were not attorneys and the investigations were performed “pursuant to regulatory law and corporate policy rather than for the purpose of obtaining legal advice.” Prior to its ruling, the court inspected the requested investigation reports and deemed them “eye-openers” that revealed direct and circumstantial evidence of wrongdoing, reported to the company’s lawyers after an internal investigation.

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