ACC believes that the rulings below are contrary to the purposes of the attorney-client privilege and threaten to seriously erode the protection of the privilege in internal investigations by companies into alleged employee misconduct. To begin with, the decision below contravenes the D.C. Circuit’s earlier appellate ruling in the same case that “communications made by and to non-attorneys serving as agents of attorneys in internal investigations are routinely protected by the attorney-client privilege.” In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758 (D.C. Cir. 2014). In addition, the lower court’s expansive implied-waiver ruling is unsupported by law, fundamentally unfair and would have significant adverse policy consequences. In particular, the court’s unpredictable standard creates a substantial risk that conscientious companies will inadvertently waive the privilege, permitting their adversaries to use the products of their internal investigations against them in litigation. Because of the harsh consequences that may result from waiver of the privilege, the district court erred in refusing to allow the defendant company the choice of retracting the statements at issue to avoid a finding of an implied waiver.
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