Internal Investigations

Whether documents prepared in connection with an internal investigation are protected from disclosure by the attorney-client privilege or work-product doctrine is a topic of continuing interest and current debate.  On March 6, 2014, the U.S. District Court for the District of Columbia filed a much-publicized opinion in United States ex rel. Barko v. Halliburton Co., No. 1:05-cv-1276, that held that internal investigation materials were not protected from disclosure by the attorney-client privilege or work-product doctrine because the investigation was not conducted in anticipation of litigation or to obtain legal advice.  As colleagues in Perkins Coie’s government contracts practice aptly cautioned, the Barko decision erodes critical protections against such disclosure offered by the attorney-client privilege and work-product doctrine. Fresh on the heels of Barko, just this week, the family of Joe Paterno argued in a Pennsylvania court that documents generated by former FBI director Louis Freeh’s law firm in its investigation into the Jerry Sandusky sex abuse scandal were not protected by the attorney-client privilege.  At the same time, New Jersey lawmakers are seeking to compel disclosure of outside counsel’s materials from the internal investigation regarding the New Jersey Governor’s involvement in the “Bridgegate” scandal.  Barko will likely embolden even greater numbers of litigants, as well as the government, to compel the production of sensitive information regardless of attorney-client and work-product protections.
Continue Reading Cause for Alarm? Protecting Internal Investigations from Disclosure after Barko