privilege

Catch a Waive

By Barry Barnett on August 13, 2015

No privilege?

A district judge ruled that Kellogg Brown & Root could not withhold the results of a probe that it had conducted, with the help of lawyers, into allegations that it defrauded the U.S. Military in Iraq by inflating costs and paying kickbacks. The judge reasoned that KBR made inquiry and put together a report of its findings not for the purpose of getting legal advice — in which case the attorney-client privilege would apply — but “to try to comply with KBR’s obligation to report improper conduct to the Department of Defense” — in which case the privilege would not apply. “Firms Can Hide Routine Probe Details by Using Lawyers, D.C. Circuit Holds“, July 27, 2014.Continue Reading Catch a Waive

Firms Can Hide Routine Probe Details by Using Lawyers, D.C. Circuit Holds

By Barry Barnett on July 27, 2014

A happy outcome for counsel

All you in-house lawyers out there might want to raise a hearty cheer for the D.C. Circuit. Outside counsel may want to clap also. For a panel of the appeals court held in In re Kellogg Brown & Root, Inc., No. 14-5055 (D.C. Cir. June 27, 2014), that you can convert mandatory…

Hey Nonny Nonny

By Barry Barnett on June 1, 2012

For people who lose a claim of confidential lawyer-client communication or work product privilege, the normal rule gives them a scary option if they want to contest the loss in a higher court. They must defy the order, which directs them to produce the documents or furnish the information, and thus stand in contempt of…

Giving Docs to Feds Waives Privilege, Ninth Circuit Holds

By Barry Barnett on April 18, 2012

The lawyer you hired to help you with lawsuits over the rights to Superman runs off with documents that you say contain top-secret attorney work product and attorney-client communications.

Worse, the lawyer gives a copy of the to your opponent, D.C. Comics. You report the theft to the Federal Bureau of Investigation. A grand jury…

Giving Papers to Ecuadorian Court Expert Waived any Privilege, Third Circuit Holds

By Barry Barnett on February 7, 2011

The strange case started almost two decades ago in New York. On the motion of Texaco — later Chevron — it wound up in Lago Agrio, Ecuador.

In it, a group of Ecuadorians claimed that Texaco/Chevron's oil and gas operations in their home land caused bad problems. The court in Lago Agrio named an expert to help figure…

Work Product Woes

By Barry Barnett on June 30, 2010

Blawgletter got some excellent feedback about our last post — on the D.C. Circuit's ruling this week that the lawyer work product doctrine protects a third-party auditor's memo to the extent it reports ideas that a lawyer birthed in anticipation of a lawsuit.

We doubted the court got it right. At least one of you agreed with…

Work Product Shield Survives Disclosure to Auditors, D.C. Circuit Rules

By Barry Barnett on June 30, 2010

You, the trial lawyer, tell Jimmy, your client's outside auditor, many of your Deep Thoughts about how to handle a thorny federal income tax issue that will likely produce a lawsuit with the Internal Revenue Service.

Jimmy records his own Deep Thoughts in a memo to the file. He includes yours also.

You didn't tell…

Seventh Circuit Denies Mandamus to Protect Claim of Privilege

By Barry Barnett on March 3, 2010

The Seventh Circuit today turned back Whirlpool's effort to stop the hand-over of documents it claimed fell within its attorney-client privilege. The panel noted that, in Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599 (2009) (post here), the Court barred appeals from pretrial orders that breached a claim of privilege. The panel also…

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