Internal Investigations

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In 1657, mathematician Blaise Pascal commented in a letter to his church leaders “I have made this longer than usual because I did not have time to make it shorter.” More than 100 years later, another Frenchman, Napoleon Bonaparte, offered a similar remark to his valet as he prepared to head out for battle. “Dress me slowly,” he said, “I’m in a hurry.” The irony of the quotations makes people smile, but few quibble with their underlying truthfulness. Often, the more in a hurry you are, the more you need to slow down.
Continue Reading Using “Prospective Hindsight” To Identify And Mitigate Risks During A Crisis

In 2012, the Penn State Lions went 8-4 on the field, passing 3,283 yards, rushing 740 yards, and scoring 349 points. This credible performance earned it a respectable 38th ranking out of the 124 schools in the NCAA’s Division I Football Bowl Subdivision. But few will remember Penn State’s athletic performance in 2012. What people will remember instead is that 2012 was the year the University’s Special Investigative Counsel issued its report into the actions of Penn State Coach Gerald Sandusky.
Continue Reading From the Big Easy to the Big Ten, And Beyond: What the Process of Reforming the New Orleans Police Department Can Teach Colleges and Universities

On November 20, 2014, the District Court for the District of Columbia once again ordered Kellogg, Brown and Root (“KBR”) to produce all documents prepared as part of an internal investigation.  The District Court’s decision comes after the D.C. Circuit, in an opinion that was welcome news for in-house counsel, found that the documents prepared during an internal investigation were protected by the attorney-client privilege since one of the “significant purposes” of the communications was to obtain or provide legal advice.  On remand, the District Court nonetheless ordered KBR to produce the documents because it found that, under the doctrine of implied waiver, KBR waived the privilege by placing in dispute what otherwise would have been privileged matters when it represented to the Court that the internal investigation resulted in no evidence of fraud.[1]
Continue Reading Implied Waiver of Privilege in Internal Investigations: Barko Court Compels Production of Internal Investigation Documents, Again

In a trio of speeches given at separate events on September 17, 2014, Department of Justice (“DOJ”) officials announced new initiatives and points of emphasis in the Government’s ongoing efforts to hold corporations and corporate officers criminally liable in the aftermath of the 2008 financial crisis.  Among the issues addressed by Assistant Attorney General Leslie Caldwell, Principal Deputy Assistant Attorney General Marshall Miller, and Attorney General Eric Holder were increased coordination between the Civil and Criminal Divisions on qui tam False Claims Act (“FCA”) cases, an emphasis on corporations’ cooperation in prosecuting culpable individuals, and the importance of whistleblowers and cooperating witnesses in the government’s investigations.
Continue Reading Recent Remarks By Officials Reinforce DOJ’s Focus On Criminal Fraud Investigations And Prosecutions Of Culpable Individuals

This article was originally published by Bloomberg Law.

In a much-anticipated decision, the D.C. Circuit clarified the general test for the applicability of the attorney-client privilege in internal investigations. In re Kellogg Brown & Root, Inc., 14-5505, 2014 WL 2895939 (D.C. Cir. June 27, 2014). The court unanimously rejected the district court’s holding that a communication is privileged only if it would not have been made “but for” the purpose of seeking legal advice. Although a few district courts have followed this narrow “but for” test, corporate counsel rightfully feared that other courts would follow suit and narrow the protection generally afforded to internal investigations that are often done to comply with regulatory or business requirements and to seek legal advice. In rejecting the “but for” test, the D.C. Circuit looked to the lessons learned from Upjohn Co. v. United States, 449 U.S. 383, 392 (1981) and broadly held that communications in internal investigations are privileged not only where the single primary purpose of an investigation is to provide legal advice, but also if that is “one of the significant purposes” of the investigation.Continue Reading Attorney-Client Privilege Protection in Internal Investigations Upheld by D.C. Circuit: Good News for Corporate Counsel

On March 6, 2014, the District Court for the District of Columbia issued an opinion in United States ex rel. Barko v. Halliburton Company et al. that should serve as a wake-up call for all companies conducting internal compliance investigations to evaluate whether those investigations are structured in a manner to maximize the protections of the attorney-client privilege and work product doctrines.  The court ordered Kellogg, Brown and Root (“KBR”), a Halliburton subsidiary, to produce documents related to an internal Code of Business Conduct (“COBC”) investigation.  The court found that these documents were not protected under the attorney-client privilege or the work product doctrine because the investigation was conducted to comply with Federal Acquisition Regulation (“FAR”) Mandatory Disclosure requirements and internal policy “rather than for the purpose of obtaining legal advice.”  Critical to the court’s reasoning was that the investigation was conducted by non-lawyers without the involvement of the legal department.
Continue Reading Proceed with Caution: D.C. District Court Says Attorney-Client Privilege and Work Product Doctrine Do Not Survive Internal Fraud Investigation Conducted by Non-Attorneys

A CEO receives an anonymous call claiming that someone is stealing company trade secrets or that an employee is taking kickbacks from a vendor.  A GC gets a call from the HR director who has an employee accusing the company of submitting false bills to a government agency.  You are served by a government agency with a subpoena seeking records indicating a criminal investigation is underway for violations of environmental laws, insider trading, tax laws or fraud. Your company receives a credible threat of litigation.  These are all real scenarios that occur daily in companies of all sizes all over the world.  They trigger critical internal investigations that require substantial time and resources.  Regardless of the nature of the investigation, it is vital that it be conducted efficiently, with clear direction and attention to preservation of the attorney-client privilege.  This article sets out best practices for doing so.
Continue Reading Corporate Internal Investigations: Best Practices

By David Gallacher 

Last month we wrote about a provision in the proposed 2013 National Defense Authorization Act (“NDAA”) that would have given the Defense Contract Audit Agency (“DCAA”) statutory authority to demand a company’s internal audit reports in order to audit the efficacy of a company’s internal business systems. Surprisingly, the authorization, as originally proposed, was modified in the final legislation. While Congress directed DCAA to issue new guidance regarding auditor access to internal audit reports, Congress stopped short of giving DCAA actual authority to demand such reports. As such, contractors will remain at loggerheads with DCAA auditors who try to exceed their statutory authority.Continue Reading Smash & Grab Redux – Congress Seems to Give DCAA Permission But Forgets to Give It Authority

By David Gallacher 

The Defense Contract Audit Agency (“DCAA”) has long sought access to contractors’ internal audit reports in connection with the routine audit of contractors’ business systems. Contractors have, in most cases, successfully resisted requests for such access on the grounds that DCAA has no statutory authority to request such documents. But that may soon change. Section 843 of the Senate version of the 2013 National Defense Authorization Act (S. 3254) would grant DCAA broad access to contractor internal audit information.Continue Reading Smash & Grab – DCAA Poised to Gain Access to Contractor Internal Audit Reports