In his capacity as a subcontract administrator for KBR, Barko witnessed his company allegedly overcharging the federal government for services and filed a lawsuit under the False Claims Act on behalf of the government to recover penalties for those offenses (1). Since then, it’s been a wild ride for Harry Barko.
Needless to say, KBR and Halliburton have not been cooperative. They’ve fought Barko’s case in every way imaginable, even going so far as to claim that company documents he sought in discovery are protected by attorney-client privilege.
Barko’s Attorney-Client Privilege Roller Coaster Ride
Initially, U.S. District Judge James Gwin agreed with him and ordered KBR to hand over the documents Barko requested. (2) KBR petitioned for a writ of mandamus to have the ruling overturned. The District of Columbia Circuit Court of Appeals agreed with KBR and said the company did not have to give Barko the requested documents.
The essence of this dispute is in the nature of the documents. The U.S. Chamber of Commerce and the Association of Corporate Counsel filed a friend-of-the-court brief in support of KBR, stating that ruling in favor of whistleblowers would result in businesses not being able to keep corporate information confidential (3).
This battle has been brewing all year, with parties filing motions, petitions, and appeals back and forth to get some closure on whether or not KBR’s precious corporate documents can be admitted as evidence to help Barko win his case (4). In July, Barko petitioned for a rehearing en banc, but was denied (5).
After going round and round over the nature of the documents in question, Gwin finally ruled on November 20, 2014, for reasons different than the ones that were earlier overturned, that KBR must turn over its documents to Barko. However, he also ordered Barko not to disclose the contents of the documents (6).
In classic stalling fashion, KBR vowed to appeal that ruling too (7). Gwin essentially granted the company a reprieve, giving Barko another setback (8). The battle continues.
What All This Is Leading Up To
It’s pretty clear that the documents Barko has been seeking, 89 of them in all, are incriminating. Why else would KBR be fighting so hard to keep them from being admitted as evidence?
Barko’s attorneys – Kohn, Kohn, & Colapinto, LLP – argue that KBR is trying to hide the truth of their misdeeds by hiding behind attorney-client privilege. KBRs representation —John P. Elwood, Vinson & Elkins, LLP — argues that attorney-client privilege must be protected at all costs.
It’s quite possible that taxpayers may get screwed in the end because corporations have license carte blanche to admit guilt so long as they do so to their attorneys and no one else. Oh, that’s not really anything new, is it?
But, hold onto your hat because it may get worse. An article at Bloomberg BNA comes to this stark conclusion:
Although KBR won the privilege battle, the dispute demonstrates that a significant purpose of an internal investigation must be for counsel to render legal advice; moreover, counsel must direct and control the investigation ….
Ultimately, corporations are best protected when counsel conduct and control investigations, communications are treated in a confidential manner … and it is documented that legal advice was a significant purpose of the investigation. (7)
In other words, companies accused of wrongdoing can skirt the law just by handing over every document they own to legal counsel and let the briefs run the business for awhile because “legal and business purposes are not mutually exclusive”.
References & Image Credits:
(1) United States ex rel., Harry Barko v. Halliburton, et. al.
(2) Opinion & Order dated March 11, 2014
(3) The National Law Journal
(4) Kohn, Kohn, & Colapinto, LLP
(5) Petition of Harry Barko for Rehearing En Banc
(6) Opinion & Order dated November 20, 2014
(7) Bloomberg BNA
(9) Wikipedia: KBR
(10) US Courts