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Appeals Court Confirms that Results of Internal Investigation are Privileged

July 2014

On June 27, 2014, the United States Court of Appeals for the District of Columbia Circuit issued a decision in In re: Kellogg Brown & Root, Inc., an important ruling which confirms the application of the attorney-client privilege to corporations within the business setting as set forth by the Supreme Court over thirty years ago in Upjohn Co. v. United States. In Kellogg Brown & Root, the D.C. Circuit vacated a district court’s decision that denied the protection of the attorney-client privilege to documents created during the course of an internal investigation by the company’s in-house lawyers. Recognizing that the district court’s decision had generated substantial uncertainty about the scope of the attorney-client privilege in the business setting, the Court held that the attorney-client privilege applied to documents generated during an internal investigation provided that obtaining legal advice was one of the significant purposes of the internal investigation.

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