In this blog and subsequently in an article on the subject under the aegis of the American Health Lawyers Association that can be found at http://www.lexology.com/library/detail.aspx?g=b68c51ae-2bdb-490e-ac3d-02c351a19310 EBG analyzed the DC Circuit’s decision in In re Kellogg Brown & Root, 2014 U.S. App. LEXIS 12115 (D.C. Cir. 2014). The DC Circuit’s holding reinforces the protections established by the Supreme Court 30 years ago in Upjohn Co. v. United States, 449 U.S. 383 (1981), that afford privilege to confidential employee communications made during a corporation’s internal investigation led by company lawyers.
Given the fact that this case is getting wide notice and that courts in other jurisdictions are actively considering similar privilege claims, it might be helpful to know that, on September 2, 2014, all nine active judges of the DC Circuit (now tilting decidedly liberal, given recent Obama appointments) rejected en banc consideration of the case. That strong statement from an influential court is worth noting with reference to the increasing number of challenges to privilege brought by plaintiffs’ attorneys and the government.