My law partner Mike Sterling forwarded this summary of a recent qui tam movant’s motion to compel contractors to product documents relating to their codes of business conduct investigations. It’s an important issue for any government contractor.
Here’s Mike’s summary:
Recently, the District Court for the District of Columbia granted a qui tam relator’s motion to compel contractors to produce documents relating to the contractor’s code of business conduct investigations. United States ex rel. Barko v. Halliburton Co., No. 1:05-cv-1276 (D.D.C. Mar. 6, 2014) According to the court, neither the attorney-client privilege nor the work product doctrine prevented disclosure. The relator sought almost 100 documents related to internal audit and fraud investigations conducted by one of the contractors. The disputed documents, were reviewed by the court reviewed in camera and described as “eye-openers.” The documents showed that a subcontractor received preferential treatment and evidence of pay-offs from the subcontractor to steer business to the company. Also, the subcontractor continued to receive subcontracts despite unsatisfactory performance, failure to complete projects and repeated double-billing. Investigation documents can be protected from disclosure only under certain circumstances. The court will consider several factors including the existence of a written code of business conduct that is followed by the company, a request for legal advice, attorney oversight of the investigation, written instructions from the attorney to any investigators, Upjon Warnings to all current and former employees explaining that the interviews are for the purpose of providing legal advice to the company, restrictive labels on documents, reports addressed to the attorney and a documented threat of litigation. Every company should have a written code of business conduct, and investigations should be planned with care.