Company records and communications are typically subject to disclosure in government investigations. They may be protected from disclosure if they are protected by the attorney client privilege or attorney-work product doctrine. However, invocation of these privileges is not automatic, as confirmed in a May 4 ruling by the U.S. States Court of Appeals for the Fifth Circuit. In EEOC v. BDO USA, LLP, the Court of Appeals issued a ruling clarifying the use of a privilege log to invoke the protections of the attorney-client privilege when responding to an agency’s request for documents as part of an investigation of employment discrimination claims.

The Court of Appeals reversed the trial court, and held that the defendant’s use of a privilege log to shield many documents and communications from the Equal Employment Opportunity Commission (EEOC) was not sufficient to establish that the attorney-client privilege protected these communications (with the corporation, its in- house counsel and outside counsel) from disclosure. The EEOC had made several requests for this information, which were rejected, forcing the EEOC to subpoena these records, followed by filing an enforcement action in the trial court.

The Court of Appeals ruled that the trial court (and the presiding Magistrate) erred when they held that the log’s cataloged communications were “per se” privileged, and returned the case to the trial court for “a determination consistent with this opinion.” The Court of Appeals noted that the log itself was too vague to enable a court to determine whether a sphere of confidentiality existed, and that an in camera review will be necessary to resolve the issue.

Federal government records, including business records submitted to the government, are subject to disclosure under the federal Freedom of Information Act (FOIA). However, FOIA exempts nine categories of government records from this disclosure obligation. A May 9 ruling by the U.S. Court of Appeals for the District of Columbia in AquAlliance v. U.S. Bureau of Reclamation discusses the scope of Exemption 9. Exemption 9 provides that there is no duty to disclose “geological and geophysical information, data, including maps, concerning wells.”

AquAlliance is identified as a non-profit organization concerned with protecting the Northern California ecosystem and watersheds. The Department of Interior’s Bureau of Reclamation “oversees water resource management across the United States.” The Bureau of Reclamation’s Central Valley Project is described as the “largest federal water management project in the country,” serving 20 million people and 7 million acres of farm land.

AquAlliance, concerned about the impact of water transfer applications routinely processed by the Bureau of Reclamation, filed a FOIA request seeking all documents related to water transfer applications filed in 2013 and 2014. The Bureau of Reclamation largely complied, but withheld or redacted information relating to water-well construction, completion, depth, and location.

AquAlliance then filed an FOIA action in the District Court. The District Courtgranted the Government’s motion for summary judgment, based on its reading of the plaint text of Exemption 9. The Court of Appeals affirmed the ruling, rejecting AquAlliance ’s contention that this exemption, if properly understood, only protected oil and gas well information.