In re: Kellogg Brown & Root, No. 14-5319 (D.C. Cir. 2015)
Annotate this CaseKBR seeks a second writ of mandamus challenging the district court's conclusion that: (1) the Code of Business Conduct (COBC) documents at issue must be produced under Federal Rule of Evidence 612 on the theory that KBR waived attorney-client privilege and work product protection, and (2) KBR waived attorney-client privilege and work product protection for the COBC documents under the doctrine of “at issue” waiver. The court concluded that the district court’s Rule 612 ground for its production order was clear error because there was no basis for the fairness balancing test it conducted and, even had there been, the test failed to give due weight to the privilege and protection attached to the internal investigation materials. The district court may not, in resolving the motion for summary judgment, make any inference in KBR’s favor based on the contents of the privileged documents. The court further concluded that even a cursory review of the compelled documents shows that the December 17 order would require KBR to produce materials that are attorney-client privileged. In addition, the order compelled disclosure of numerous mental impressions of the investigators, based on a clearly erroneous finding that such conclusions were only “background materials” and therefore fact work product. The court granted the writ of mandamus, concluding that the writ will correct the legal error in this case and resolve the dispute over production of the COBC documents in favor of KBR.
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