Washington, D.C.  June 27, 2014. Today the D.C. Circuit court issued a decision in the case of In re: Kellogg Brown & Root, Inc., et al., finding certain reports produced during internal corporate investigations were covered under the attorney-client privilege even though the documents show employees believed there was contracting fraud taking place during the Iraq War.  The Court granted a “writ of mandamus” and reversed the lower court’s ruling that had ordered KBR’s internal review of the fraud allegations to be produced in a False Claims Act case.

The underlying case concerns a whistleblower complaint filed by a former KBR employee,  Mr. Harry Barko, on behalf of U.S. taxpayers seeking damages for KBR falsely charging the government for illegal contracting practices during the War in Iraq.  The documents in question concerned an in-house review of allegations raised by employees who observed improper contracting practices and reported fraud to KBR’s investigators.  The lower court, which had ordered the release of the documents, also ruled that these documents in question were “eye openers” and supported Mr. Barko’s claims that taxpayers were overcharged by KBR.

Mr. Stephen M. Kohn, one of Mr. Barko’s attorneys, issued the following statement:

Mr. Barko will file an appeal of this decision. The court incorrectly issued a writ of mandamus upholding KBR’s claim of privilege.  The documents at issue demonstrate illegal contracting practices and should not be kept secret from the public.  KBR obtained billions of dollars in government contracts to support the Iraq War effort.  The lower court, which reviewed the documents prior to issuing its decision, correctly held that these materials were not covered under the attorney client privilege.

We are confident that upon further appeal the position argued by KBR will be reversed.


The lower court’s decision authorizing the release of the documents, and explaining how the documents demonstrated KBR contracting violations is linked here.

The Court of Appeals ruling is linked here.

The briefs and pleadings in this case are available online here.