In 2014, the D.C. Circuit adopted a very favorable privilege standard — protecting communications if "one significant . . . purpose" was corporations' need for legal advice, even if that was not the communications' "primary purpose." In re Kellogg Brown & Root, Inc ., 756 F.3d 754, 760 (D.C. Cir. 2014). Now a different panel of D.C. Circuit judges dealing with the same internal corporate investigation has taken a privilege-friendly approach to two more peripheral privilege issues — granting another petition for writ of mandamus. In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S. App. LEXIS 14016 (D.C. Cir. Aug. 11, 2015).
In the first holding, the appellate court found that the district court had erroneously applied Federal Rule of Evidence 612. That rule allows courts to order the production of otherwise privileged documents which refreshed a witness's recollection upon reviewing them before testifying — "'if the court decides that justice requires'" disclosure. Id. at *11. The plaintiff sought production of documents KBR's Rule 30(b)(6) deponent had reviewed before testifying. The court explained that trial courts undertake the "justice requires" analysis only if the witness's document review refreshed her recollection — implying that the plaintiff had not satisfied that prerequisite. The court then held that even if the balancing "justice requires" test had been appropriate, the district court "failed to give due weight to the privilege and protection attached to the internal investigation materials." Id. at *15.
The D.C. Circuit's privilege-friendly decision should remind lawyers of Rule 612's possible counter-intuitive effect. Even showing undeniably privileged internal corporate communications to a corporate employee preparing to testify can forfeit the privilege if (1) the documents refresh the witness's recollection, and (2) the court finds that "justice requires" the documents' production to the adversary. Next week's Privilege Point will discuss the D.C. Circuit's other holding.