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United States ex rel. Barko v. Halliburton Co.

United States District Court, D. Columbia.

March 11, 2014

UNITED STATES OF AMERICA ex rel. HARRY BARKO, Plaintiff-Relator,
v.
HALLIBURTON COMPANY et al., Defendants

Page 163

[Copyrighted Material Omitted]

Page 164

For HARRY BARKO, United States of America ex rel, Plaintiff: Anthony C. Munter, LEAD ATTORNEY, PRICE BENOWITZ, LLP, Washington, DC; David K. Colapinto, Michael David Kohn, Stephen M. Kohn, LEAD ATTORNEYS, KOHN, KOHN & COLAPINTO, LLP, Washington, DC.

For HALLIBURTON COMPANY, KELLOGG BROWN & ROOT SERVICES, INC., KELLOGG BROWN & ROOT SERVICES, INC., KBR TECHNICAL SERVICES INC, KELLOGG BROWN & ROOT ENGINEERING CORPORATION, KELLOGG BROWN & ROOT INTERNATIONAL, INC., A Delaware Corporation, KELLOGG BROWN & ROOT INTERNATIONAL, INC., A Panamanian Corporation; And any other entities doing business under the name Kellogg Brown and Root, KELLOG BROWN & ROOT, Defendants: Craig D. Margolis, LEAD ATTORNEY, Alden Lewis Atkins, Tirzah S. Lollar, VINSON & ELKINS, L.L.P., Washington, DC; John Martin Faust, LEAD ATTORNEY, LAW OFFICES OF JOHN M. FAUST, PLLC, Washington, DC; John Randall Warden, U.S. DEPARTMENT OF JUSTICE, Criminal Division, Washington, DC.

For DAOUD & PARNTERS INC., Defendant: Daniel H. Bromberg, LEAD ATTORNEY, QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP, Redwood Shores, CA; Christine H. Chung, PRO HAC VICE, QUINN EMANUEL URQUHART & SULLIVAN LLP, San Francisco, CA; Christopher Tayback, Scott L. Watson, PRO HAC VICE, QUINN EMANUEL URQUHART & SULLIVAN LLP, Los Angeles, CA.

For UNITED STATES OF AMERICA, Movant: Beverly Maria Russell, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

OPINION

Page 165

OPINION & ORDER

[Resolving Docs. 151 & 152]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE.

In its March 6, 2014 Opinion and Order, the Court granted Plaintiff-Relator Barko's motion to compel the production of 89 documents. The KBR Defendants had withheld the documents on the basis of attorney-client privilege or attorney work-product protection grounds.[1] In ordering the production, the Court found that these documents were ordinary business records and were created to satisfy United States defense contractor requirements. The Court found the documents were not created to obtain or receive legal advice. [2]

The KBR Defendants now ask the Court to certify this issue for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) and to stay the March 6 Order pending appellate review.[3] In the alternative, the KBR Defendants request that this Court stay its March 6 Order pending the filing and disposition of a petition for writ of mandamus to the U.S. Court of Appeals for the District of Columbia Circuit--or, at a minimum, until the D.C. Circuit rules on an emergency motion to stay pursuant to Federal Rule of Appellate Procedure 8(a).[4] The KBR Defendants also ask the Court to seal its March 6 Opinion and Order.[5]

KBR's fear of producing the documents is understandable. Before being ordered to produce the documents for in camera review, KBR filed a motion for summary judgment and filed a statement of facts that KBR represented could not be disputed.[6] But KBR's COBC business documents are replete with contrary evidence. In its motion for summary judgment, KBR makes factual representations directly opposite its own COBC reports.

A. Motion for Certification for Interlocutory Appeal

In granting a request for an interlocutory appeal, a district court must certify that the order involves " a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." [7] The Supreme Court in Mohawk Industries, Inc. v. Carpenter said that these conditions are " most likely to be satisfied when a privilege ruling involves a new legal question or is of special consequence." [8]

The Court finds that defendants fail to satisfy the high standard required for an interlocutory appeal. " Mere disagreement, even if vehement, with a court's ruling does not establish a substantial ground for difference of opinion sufficient

Page 166

to satisfy the statutory requirements for an interlocutory appeal." [9]

First, the KBR Defendants fail to show the order involves a " new legal question or is of special consequence." [10] The issue of whether the attorney-client privilege or the work product doctrine applies to documents created as part of an internal compliance investigation is not new or novel.[11] Rather, as the Supreme Court stated in Upjohn Co. v. United States, the outcome in any particular circumstance must be determined on a " case-by-case basis" and depends on the particular circumstances of the case.[12]

Moreover, the issue is not one of " special consequence." This case concerns discrete issues related to a long-passed KBR contract and the administration of that contract. This Court's finding that the documents were not attorney client privileged or work product privileged was not a close question. But even if the issue had been difficult, attorney client privilege decisions are fact-dependent. Nothing makes review of the privilege decision especially important to other cases. Each attorney-client privilege ruling turns on its own facts. That ...


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