David K. Colapinto, Michael David Kohn|dcd|U.S. EX REL. BARK... -- eLawyers

Filed: Nov. 20, 2014
Latest Update: Nov. 20, 2014

Summary: OPINION & ORDER [Resolving Doc. 154] JAMES S. GWIN , UNITED STATES DISTRICT JUDGE : In this qui tam case, Plaintiff-Relator Harry Barko disputes the attorney-client privilege and attorney work product claims made by Defendants Kellogg Brown & Root Services, Inc., KBR Technical Services, Inc., Kellogg, Brown & Root Engineering Corporation, Kellogg, Brown & Root International, Inc., and Halliburton Company (collectively "KBR") regarding certain documents. KBR has submitted these documents a

[Resolving Doc. 154]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:

In this qui tam case, Plaintiff-Relator Harry Barko disputes the attorney-client privilege and attorney work product claims made by Defendants Kellogg Brown & Root Services, Inc., KBR Technical Services, Inc., Kellogg, Brown & Root Engineering Corporation, Kellogg, Brown & Root International, Inc., and Halliburton Company (collectively "KBR") regarding certain documents.

KBR has submitted these documents along with three privilege logs for in camera review. The first privilege log deals with Code of Business Conduct (COBC) investigation reports. The second and third privilege logs primarily cover other documents that KBR claims attorney-client privilege or work product protection for, though these logs also contain six documents related to the COBC. KBR has filed a motion for a protective order as to the documents in Privilege Logs # 2 and 3.1 Barko opposes this motion.2

For the reasons below, the Court GRANTS IN PART and DENIES IN PART KBR's motion for a protective order.3 Appendix A, a chart based on Privilege Logs # 2 and 3 as provided by KBR, contains a complete list of the documents KBR has withheld or redacted along with the Court's ruling on KBR's claims of privilege and work product protection.

I. Legal Standards and Introduction

After reviewing the documents referenced in the second and third privilege logs, the Court grants some of KBR's claims of privilege or protection, but denies others.

In general, the attorney-client privilege shelters confidential communications between an attorney and client, including their agents, made with a primary purpose of seeking or providing legal advice.4 A "primary purpose" is defined as "one of the significant purposes" of the communication.5 The attorney-client privilege, like all privileges, is in derogation of the truth-seeking process, and is therefore to be construed strictly.6 The party asserting privilege bears the burden of demonstrating that it applies.7

Work product protection attaches to "documents and tangible things that are prepared in anticipation of litigation or for trial."8 In this circuit, a document is prepared "in anticipation of litigation" if "`in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.'"9 This standard both requires a subjective belief that litigation was a real possibility and requires that the belief be objectively reasonable.10

Broadly speaking, there are three categories of documents the Court concludes have been improperly withheld. In the first, the attorney's merely incidental connection to the documents combines with other factors to convince the Court that the documents neither had a significant purpose of seeking or providing legal advice nor were prepared in anticipation of litigation. In the second, the Court concludes that the material is neither privileged nor protected because it discloses only that an attorney was consulted and the general topic of the consultation, but not the substance of those communications. In the third, the Court concludes that numerous litigation hold notices are not privileged as they were not intended to be kept confidential and are not protected work product because they merely describe KBR's document retention practices.

II. Documents with Attorneys as Incidental Recipients11

In the first category of documents that the Court concludes are subject to disclosure, KBR attorneys were merely copied on or were added recipients of emails that were not sent for the purpose of seeking or providing legal advice. As noted above, in order for a communication to be sheltered by the attorney-client privilege, it must have a "primary purpose" — defined as "one of the significant purposes" — of either obtaining or providing legal advice.12 Parties, including corporations, may not shield otherwise discoverable documents from disclosure by including an attorney on a distribution list.13 Thus, the fact that an attorney either is copied on or is one of multiple recipients of an email does not on its own support a claim of attorney-client privilege.

KBR's privilege logs claim that the documents described in this section request, provide, or discuss legal advice, or convey information for the purpose of obtaining legal advice. The Court, however, concludes after its in camera examination that these were not "one of the significant purposes" of these documents. The attorneys were merely incidental recipients of communications made for ordinary business purposes — not for obtaining or providing legal advice. Moreover, none of the other employees involved in the communications were acting as agents of attorneys for the purposes of providing legal advice or gathering information to allow the attorneys to provide legal advice. The communications are thus outside the scope of the attorney-client privilege.

These documents also do not qualify for work product protection. Just as these communications lacked a "significant purpose" of seeking or providing legal advice, they were not prepared "in anticipation of litigation." As described above, the documents in question consist of ordinary business communications between non-attorneys with an attorney or attorneys as additional recipients. In the same way that the addition of an attorney to a distribution list does not transform the documents into requests for legal advice, it does not transform them into documents prepared in anticipation of litigation.

III. Documents Reflecting That a Consultation Occurred14

Another subset of documents for which the Court concludes that neither attorney-client privilege nor work product protection apply are those that reference communications with attorneys without disclosing the contents of those communications. The underpinning of this holding is that the mere fact of consultation with a lawyer about an issue is generally neither privileged nor protected.15 Attorneys thus may properly cross-examine witnesses about whether they spoke to their attorneys about their testimony prior to taking the stand at trial or during a break in a deposition, so long as they do not inquire into the specific content of the conversation between attorney and client. Similarly, a consultation with a lawyer does not make underlying facts privileged, even though the substance of the discussion about those facts would be.16

Thus, documents that show one corporate employee telling another to consult a lawyer on a general topic without conveying the specific content of the desired communication are no more immune to production than a witness's statement that he discussed that broad topic with his or her attorney prior to testifying at a trial. By the same token, documents that reflect only that a non-attorney spoke to or received advice from an attorney and then acted are discoverable because they do not reflect privileged communications.17 Neither the fact of the consultation nor the eventual action taken are protected from disclosure, and the fact that clients sometimes choose not to follow their attorneys' advice prevents such documents from implicitly disclosing any more than the general nature of the confidential communications sheltered by the attorney-client privilege.18 Thus, these types of documents must be disclosed.19

IV. Litigation Holds20

The last major category of documents the Court considers are litigation hold notices. These emails were sent from KBR's CEO and Vice President of the Legal Department to large groups of individuals, such as "[a]ll KBR employees," instructing them to preserve certain documents in connection with government investigations. Although some decisions from other courts have found that these types of documents are covered by the attorney-client privilege or work product doctrine,21 the Court concludes that the particular litigation hold notices at issue here are discoverable, though the question is a close one.

The cornerstone requirement of the attorney-client privilege is intent to keep the communication confidential. That is, "[t]he circumstances must indicate that the communicating persons reasonably believed that the communication would be confidential."22 In the corporate context, this requires that internal corporate communications be shared no more widely than necessary to implement the lawyer's advice. Typically, this means that the attorney-client privilege only covers a lawyer's communications with officers and employees with the responsibility for acting on the lawyer's advice.23 Sharing of otherwise confidential information within a corporation — even if the sharing is only with employees — can result in loss of the privilege if the sharing goes beyond this "need-to-know limitation."24

Crucially, the litigation hold notices at issue here were sent to large groups such as "all KBR employees." Furthermore, follow-up emails encouraged employees to share some of the litigation hold notices with other employees who may not have received or read the first notice. No warning was given that these notices should be disseminated no more widely than necessary. No directive was issued telling employees not to discuss the litigation hold notices outside the company. KBR has thus failed to demonstrate its intent to keep these communications confidential, and the attorney-client privilege does not apply.25

Whether these documents are protected by the attorney work product doctrine is an even closer call. As stated above, work product protection attaches to "documents and tangible things that are prepared in anticipation of litigation or for trial."26 This protects the work of an attorney (or a person acting at the direction of an attorney) from being disclosed to opposing counsel, so that the attorney is free to "prepare his legal theories and plan his strategy without undue burden and needless interference."27

It is not clear that these litigation hold notices and follow-up emails represent protected attorney work product. A party may discover the steps the opposing party has taken to preserve relevant information.28 The notices were sent from KBR's CEO to large groups of employees, and can fairly be said to merely describe KBR's document retention practices, rather than relate any attorney's preparations for litigation. Thus, it is not clear that these documents are attorney work product at all.

Furthermore, there is little concern about prejudicing KBR's counsel's ability to prepare for litigation if these litigation hold notices are disclosed. This is simply not the type of preparation that is intended to be protected by the privilege, especially given today's liberal standards for conducting discovery where companies have a duty to preserve electronic documents.29 An attorney cannot complain that his preparations for trial have been unfairly affected by his opponent receiving information about document retention practices to which he is entitled.

In addition, other decisions that have found litigation hold notices to be shielded from disclosure have noted that these documents are often unlikely to lead to the discovery of admissible evidence as required by Rule 26.30 The litigation hold documents at issue here, however, reflected that KBR had "disclosed to the government the possibility that one or two of [its] former employees may have received `kick backs' from a selected contractor and [it is] cooperating with the appropriate authorities as they conduct this investigation."31 Other litigation hold documents said KBR had received a subpoena from the Department of Defense. The documents that KBR shared with the Department of Defense in response to this subpoena are themselves discoverable.32 These litigation hold notices are likely to provide Plaintiff-Relator Barko with information about what steps KBR took to comply with these subpoenas. Since the litigation hold notices here are themselves relevant, this case is distinguishable from those considering more generic litigation holds.

The Court recognizes that this is a close decision. Other cases that have considered these sorts of documents have reached the opposite conclusion and found them to be privileged or protected work product. But after inspecting these particular litigation hold notices, the Court finds that they are distinguishable from the generic case, and are therefore discoverable.

V. Remaining Documents

After its in camera review, the Court concludes that the remaining documents are covered by either the attorney-client privilege or work product doctrine. Accordingly, the Court concludes that KBR has made the necessary showing of "good cause" to support a protective order as to these documents.

VI. Conclusion

For the reasons listed above, and as indicated in footnotes 11, 14, 19, and 20, as well as in Appendix A, the Court GRANTS IN PART and DENIES IN PART KBR's motion for a protective order. KBR has previously appealed the compelled production of other documents in this case. The Court intends to direct this case towards resolution. For that reason, the Court orders Barko not to disclose the contents of the documents. If Barko intends to use or refer to the documents in subsequent filings in this case, the Court orders that such filings be made under seal. This order will remain in effect unless modified or lifted by the Court.

IT IS SO ORDERED

APPENDIX A

Privilege Doc. Date Description Ruling
Log No.

2 1 8/9/2001-8/13/2001 E-mail chain with KBR counsel regarding guaranty Privileged and/or work product.
agreement for LOGCAP proposal.

2 12 10/1/2007 Document from KBR Law Department regarding Not privileged or protected.
document preservation directive and possible employee Litigation hold notice not intended
interviews. to be confidential and not attorney
work product.

2 13 4/29/2008 E-mail from Bill Utt and counsel to all KBR employees Not privileged or protected.
regarding document preservation directive for all Litigation hold notice not intended
activities under LOGCAP III and outside inquiries. to be confidential and not attorney
work product.

2 14 5/25/2004 E-mail chain seeking and obtaining legal advice from Privileged and/or work product.
corporate counsel relating to D&P B-6 Man Camp
dispute.

2 15 5/25/2004 Duplicate of #14 above. Privileged and/or work product.

2 16 6/2/2004 Redacted e-mail chain requesting and discussing legal Not privileged or protected. Only
advice from corporate counsel relating to D&P B-6 Man reflects that consultation with
Camp dispute. [Redacted and produced as attorney occurred, not the
KBR-BARKO-018116-018119] substance of the communication.

2 17 5/3/2004 Redacted e-mail chain requesting legal advice from Not privileged or protected. For
corporate counsel relating to D&P B-6 Man Camp some parts, attorney only an
dispute. [Redacted and produced as incidental recipient. For other
KBR-BARKO-018326-018331] parts, only reflects that consultation
with attorney occurred, not the
substance of the communication.

2 18 2/10/2006 E-mail chain with corporate counsel requesting and Privileged and/or work product.
receiving legal advice about D&P B-6 Man Camp dispute
and DCAA audit.

2 19 1/31/2006 E-mail to corporate counsel for purposes of receiving Privileged and/or work product.
legal advice about D&P B-6 Man Camp dispute and
DCAA audit.

2 20 1/4/2006 Memorandum produced at request of corporate counsel in Privileged and/or work product.
order to obtain legal advice concerning EAMAR contract
termination.

2 21 1/4/2006 Duplicate of #20 above. Privileged and/or work product.

2 22 1/4/2006 Duplicate of #20 above. Privileged and/or work product.


2             23       1/7/2003               Redacted e-mail chain seeking and providing legal advice         Redacted portion is privileged
                                              from corporate counsel concerning corporate registration         and/or work product.
                                              in Jordan and the agentrelationship with D&P. [Redacted
                                              and produced as KBR-BARKO-35697-35700]

2             24       8/27/2004              Redacted e-mail conveying legal communications and               Redacted portion is privileged
                                              requests for information from outside counsel at Vinson          and/or work product.
                                              & Elkins. [Redacted and produced as KBR-BARKO-035716-035717]

2             25       1/7/2003               Duplicate of #23 above.                                          Redacted portion is privileged
                                                                                                               and/or work product.

2             26       5/4/2004               Redacted e-mail chain requesting and providing legal             Not privileged or protected, except
                                              advice and conveying information to counsel for the              for the email on page 3 of the
                                              purpose of obtaining legal advice about EAMAR contract           document from Michael Hatch
                                              termination. [Redacted and produced as                           dated May 4, 2004. That email
                                              KBR-BARK0-035720-035721]                                         may be redacted as it is a privileged
                                                                                                               communication from an attorney.
                                                                                                               The rest are communications where
                                                                                                               attorneys were mere incidental
                                                                                                               recipients.


2             27       7/28/2004              E-mails among counsel and KBR investigator and                   Redacted portion is privileged
                                              security personnel acting at direction of counsel regarding      and/or work product.
                                              allegations in the e-mail produced at
                                              KBR-BARKO-032706-10 to be considered as part of
                                              internal investigation CBC-KBR-2004-002148.

2             28       1/20/2003              E-mail chain seeking and discussing legal advice from            Privileged and/or work product
                                              corporate counsel Chris Heinrich and Peter Arbour
                                              concerning corporate registration in Jordan and D&P
                                              sponsor-agent relationship.

2             29       1/14/2003              E-mail chain seeking and obtaining legal advice from             Privileged and/or work product.
                                              corporate counsel Chris Heinrich concerning corporate
                                              registration in Jordan and D&P sponsor-agent
                                              relationship.

2             30       3/13/2005              E-mail chain seeking and obtaining legal advice from             Privileged and/or work product.
                                              corporate counsel Chris Heinrich and Peter Arbour
                                              concerning corporate registration in Jordan and D&P
                                              sponsor-agent relationship.

2             31       1/17/2003              E-mail chain seeking and obtaining legal advice from             Privileged and/or work product.
                                              corporate counsel Chris Heinrich concerning corporate
                                              registration in Jordan and D&P sponsor-agent
                                              relationship.


2             32       1/14/2003              E-mail chain seeking and obtaining legal advice from             Privileged and/or work product.
                                              corporate counsel Chris Heinrich concerning corporate
                                              registration in Jordan and D&P sponsor-agent
                                              relationship.

2             33       1/20/2003              E-mail chain seeking and obtaining legal advice from             Privileged and/or work product.
                                              corporate counsel Chris Heinrich and Peter Arbour
                                              concerning corporate registration in Jordan and D&P
                                              sponsor-agent relationship.

2             34       1/13/2003              E-mail chain seeking legal advice from corporate counsel         Privileged and/or work product.
                                              Chris Heinrich concerning corporate registration in Jordan
                                              and D&P sponsor-agent relationship.

2             35       1/16/2003              Form prepared at direction and with assistance of                Privileged and/or work product.
                                              corporate counsel for review by corporate counsel Chris
                                              Heinrich of D&P sponsor-agent relationship in Jordan.


2             36       1/13/2003              E-mail chain seeking and obtaining legal advice from             Partially privileged. The two
                                              corporate counsel Chris Heinrich and Peter Arbour                emails on page 1 of the
                                              concerning corporate registration in Jordan and D&P              document — from Bill Courtney
                                              sponsor-agent relationship.                                      dated January 13, 2003, and from
                                                                                                               Tod Nickles dated January 13,
                                                                                                               2003 — are not privileged or
                                                                                                               protected, as an attorney is only an
                                                                                                               incidental recipient, and in any
                                                                                                               event they do not seek or provide
                                                                                                               legal advice. The rest of the emails
                                                                                                               in the document are privileged
                                                                                                               communications that may be
                                                                                                               redacted.

3             1        7/5/2004               Redacted e-mail chain seeking legal advice from                  Redacted portion is privileged
                                              corporate counsel concerning EAMAR employees in Iraq.            and/or work product.
                                              [Redacted and produced as KBRBARKO-E000351]

3             2        4/26/2004              E-mail chain seeking and obtaining legal advice from             Privileged and/or work product.
                                              corporate counsel Chris Heinrich and Michael Hatch
                                              concerning corporate registration in Jordan and
                                              D&P sponsor-agent relationship.

3 3 5/25/2004 E-mail chain seeking and receiving legal advice from Privileged and/or work product.
corporate counsel concerning D&P B-6 Man Camp
dispute.

3 4 6/6/2004 E-mail seeking legal advice from corporate counsel Privileged and/or work product.
Michael Hatch concerning corporate registration in Jordan
and D&P sponsor-agent relationship.

3 7 4/19/2004 Redacted e-mail chain seeking and obtaining legal advice Redacted portion is privileged
from corporate counsel related to EAMAR contract and/or work product.
termination. [Redacted and produced as
KBR-BARKO-E024697]

3 8 4/19/2004 Redacted e-mail containing legal advice from corporate Redacted portion is privileged
counsel related to EAMAR contract termination. and/or work product.
[Redacted and produced as KBR-BARKO-E024703]

3 9 4/19/2004 Redacted e-mail chain seeking and obtaining legal advice Redacted portion is privileged
from corporate counsel related to EAMAR contract and/or work product.
termination. [Redacted and produced as
KBR-BARKO-E024709.]

3 10 5/3/2004 Redacted e-mail chain requesting and discussing legal Not privileged or protected. For
advice from corporate counsel relating to D&P B-6 Man some parts, attorney only an
Camp dispute. [Redacted and produced as incidental recipient. For other
KBR-BARKO-E004777] parts, only reflects that consultation
with attorney occurred, not the
substance of the communication.

3 11 6/6/2004 E-mail chain containing legal advice from corporate Privileged and/or work product.
counsel concerning corporate registration in Jordan and
D&P sponsor-agent relationship.

3 12 8/19/2004 E-mail chain containing document preservation directive Not privileged or protected.
in # 6 above with additional legal advice from corporate Litigation hold notice not intended
counsel. to be confidential and not attorney
work product.

3 15 10/3/2004 Redacted e-mail conveying legal advice from corporate Not privileged or protected. Any
counsel Michael Hatch regarding investigation into D&P communications with attorney not
employee treatment. [Redacted and produced as for purpose of seeking or providing
KBR-BARKO-E024874] legal advice.

3 17 3/27/2004 E-mail chain concerning investigation and seeking legal Redacted portion is privileged
advice from corporate counsel concerning EAMAR and/or work product.
termination. [Redacted and produced as
KBR-BARK0-36812]

3 18 8/19/2004 E-mail chain containing document preservation directive Not privileged or protected.
from Andy Lane and corporate counsel for all activities Litigation hold notice not intended
under LOGCAP III and outside inquiries. to be confidential and not attorney
work product.

3 20 5/4/2004 Redacted e-mail chain requesting legal advice from Not privileged or protected. For
corporate counsel relating to D&P B-6 Man Camp some parts, attorney only an
dispute. [Redacted and produced as incidental recipient. For other
KBR-BARKOE005522] parts, only reflects that consultation
with attorney occurred, not the
substance of the communication.

3 21 4/7/2004 E-mail sent to corporate counsel for purposes of obtaining Privileged and/or work product.
legal advice about EAMAR contract termination.

3 22 7/6/2004 E-mail chain seeking and obtaining legal advice about Privileged and/or work product.
corporate registration in Jordan and discussing scheduling
COBC training in Jordan.

3 23 6/9/2004 E-mail chain seeking legal advice from corporate counsel Not privileged or protected. Only
concerning EAMAR employees in Iraq. [Redacted and reflects that consultation with
produced as KBR-BARKO-036816] attorney occurred, not the
substance of the communication.


3             24       5/3/2004               Redacted e-mail chain requesting legal advice from               Not privileged or protected. For
                                              corporate counsel relating to D&P B-6 Man Camp                   some parts, attorney only an
                                              dispute. [Redacted and produced as KBR-BARKOE005747]             incidental recipient. For other
                                                                                                               parts, only reflects that consultation
                                                                                                               with attorney occurred, not the
                                                                                                               substance of the communication.

3             25       5/3/2004               Redacted e-mail chain requesting legal advice from               Not privileged or protected. For
                                              corporate counsel relating to D&P B-6 Man Camp                   some parts, attorney only an
                                              dispute. [Redacted and produced as KBR-BARKOE025227]             incidental recipient. For other
                                                                                                               parts, only reflects that consultation
                                                                                                               with attorney occurred, not the
                                                                                                               substance of the communication.


3            26        4/7/2004               E-mail sent to corporate counsel discussing legal advice         Not privileged or protected, except
                                              from corporate counsel Chris Heinrich about EAMAR                for three sentences in the first
                                              contract termination. [Redacted and produced as                  paragraph of the email on page 1 of
                                              KBR-BARKO-E02533]                                                the document from Larry Kosowski
                                                                                                               dated April 7, 2004. Of the five
                                                                                                               sentences in that paragraph, the
                                                                                                               first and last are not privileged or
                                                                                                               protected. The middle three
                                                                                                               sentences are privileged and
                                                                                                               therefore may be redacted.
                                                                                                               Otherwise, attorney is only an
                                                                                                               incidental recipient.

3             27       5/8/2004               E-mail to corporate counsel seeking legal advice about           Privileged and/or work product.
                                              D&P B-6 Man Camp dispute.

3             28       5/8/2004               E-mail to corporate counsel seeking legal advice about           Privileged and/or work product.
                                              D&P B-6 Man Camp dispute.

3             29       5/8/2004               Draft notice document related to D&P B-6 Man Camp                Privileged and/or work product.
                                              dispute prepared by George Covelli sent to corporate
                                              counsel Michael Hatch for legal review (attached to #28
                                              above).

3 30 5/6/2004 Draft notice document related to D&P B-6 Man Camp Privileged and/or work product.
dispute prepared by George Covelli sent to corporate
counsel Michael Hatch for legal review (attached to #28
above).

3 31 7/6/2004 E-mail chain seeking and obtaining legal advice about Privileged and/or work product.
corporate registration in Jordan.

3 32 5/3/2004 Redacted e-mail chain requesting legal advice from Not privileged or protected. For
corporate counsel relating to D&P B-6 Man Camp some parts, attorney only an
dispute. [Redacted and produced as KBR-BARKO-E006496] incidental recipient. For other
parts, only reflects that consultation
with attorney occurred, not the
substance of the communication.

3 33 4/7/2004 Redacted e-mail chain seeking and obtaining legal advice Redacted portion is privileged
from corporate counsel related to EAMAR contract and/or work product.
termination. [Redacted and produced as
KBR-BARKO-E025440]

3 35 8/6/2004 E-mail containing document preservation directive from Not privileged or protected.
Andy Lane and corporate counsel for all activities under Litigation hold notice not intended
LOGCAP III and outside inquiries. to be confidential and not attorney
work product.

3 36 5/3/2004 Redacted e-mail chain requesting legal advice from Not privileged or protected. For
corporate counsel relating to D&P B-6 Man. Camp some parts, attorney only an
dispute. [Redacted and produced as KBR-BARKO-E006876] incidental recipient. For other
parts, only reflects that consultation
with attorney occurred, not the
substance of the communication.

3 37 6/2/2004 Redacted e-mail requesting and discussing legal advice Not privileged or protected. Only
from corporate counsel relating to D&P B-6 Man Camp reflects that consultation with
dispute. [Redacted and produced as KBR-BARKO-E025960] attorney occurred, not the
substance of the communication.

3 38 6/1/2004 Weekly report by corporate counsel on his investigations, Privileged and/or work product.
litigation preparation, and contract issues.

3 44 7/4/2004 Redacted e-mail chain seeking legal advice from Redacted portion is privileged
corporate counsel concerning EAMAR employees in Iraq. and/or work product.
[Redacted and produced as KBR-BARKO-E001500]

3 45 7/5/2004 Redacted e-mail chain seeking legal advice from Redacted portion is privileged
corporate counsel concerning EAMAR employees in Iraq. and/or work product.
[Redacted and produced as KBRBARKO-E030965]

3 46 4/16/2004 E-Mail chain seeking and containing legal advice from Privilege and/or work product.
corporate counsel concerning corporate registration in
Jordan and D&P sponsor-agent relationship.

3 47 11/22/2004 Statement provided to KBR investigator as part of Code Privilege and/or work product.
of Business Conduct investigation conducted at the
direction of corporate counsel.

3 48 5/8/2004 Duplicate of #28, above. Privilege and/or work product.

3 49 5/8/2004 Duplicate of #29, above. Privilege and/or work product.

3 49.1 5/6/2004 Duplicate of #30, above. Privilege and/or work product.

3 50 5/25/2004 E-Mail chain seeking and receiving legal advice from
corporate counsel concerning D&P B-6 Man Camp
dispute. Privilege and/or work product.

3 51 7/26/2004 Redacted e-mail chain containing legal advice from Redacted portion is privileged
corporate counsel concerning corporate registration in and/or work product.
Jordan and D&P sponsor-agent relationship. [Redacted
and produced as KBR-BARKO-E030970]

3 52 5/24/2004 E-Mail chain seeking and containing legal advice from Privilege and/or work product.
corporate counsel concerning corporate registration in
Jordan and D&P sponsor-agent relationship.

3 53 5/16/2004 E-mail to corporate counsel seeking legal advice about Privileged and/or work product.
D&P B-6 Man Camp dispute.

3 54 5/16/2004 Draft notice document related to D&P B-6 Man Camp Privileged and/or work product.
dispute prepared by George Covelli sent to corporate
counsel Michael Hatch for legal review (attached to #53
above).

3 55 4/7/2004 E-mail seeking legal advice from corporate counsel Privileged and/or work product.
concerning EAMAR termination.

3 56 5/5/2004 Redacted e-mail chain requesting legal advice from Not privileged or protected. For
corporate counsel relating to D&P B-6 Man Camp some parts, attorney only an
dispute. [Redacted and produced as KBR-BARKO-E008621] incidental recipient. For other
parts, only reflects that consultation
with attorney occurred, not the
substance of the communication.

3 57 1/19/2005 Redacted e-mail legal advice from corporate counsel Not privileged or protected. Only
Michael Hatch relating to Heston and D&P water well reflects that consultation with
contracts. [Redacted and produced as KBR-BARKO-E017577] attorney occurred, not the

3 58 8/19/2004 E-mail chain containing document preservation directive Not privileged or protected.
from Andy Lane and corporate counsel for all activities Litigation hold notice not intended
under LOGCAP III and outside inquiries. to be confidential and not attorney
work product.

3 60 5/29/2004 E-mail seeking legal advice from corporate counsel Privileged and/or work product.
concerning D&P B-6 Man Camp dispute.

3 61 5/8/2004 Draft D&P B-6 Man Camp termination for convenience Privileged and/or work product.
letter prepared by George Covelli sent to corporate
counsel Michael Hatch for legal review (attached to #60
above).

3 62 5/3/2004 Redacted e-mail chain requesting legal advice from Not privileged or protected. For
corporate counsel relating to D&P B-6 Man Camp some parts, attorney only an
dispute. [Redacted and produced as KBR-BARKO-E008905] incidental recipient. For other
parts, only reflects that consultation
with attorney occurred, not the
substance of the communication.

3 64 7/6/2004 E-mail chain seeking and obtaining legal advice about Privileged and/or work product.
corporate registration in Jordan and discussing scheduling
COBC training in Jordan.

3 65 4/19/2004 Duplicate of #7, above. [Redacted and produced as Redacted portion is privileged
KBR-BARKO-E027482] and/or work product.

3 66 4/19/2004 Duplicate of #7, above. [Redacted and produced as Redacted portion is privileged
KBR-BARKO-E027508] and/or work product.

3 70 5/4/2004 Redacted e-mail chain requesting legal advice from Not privileged or protected. For
corporate counsel relating to D&P B-6 Man Camp some parts, attorney only an
dispute. [Redacted and produced as KBR-BARKO-E009645] incidental recipient. For other
parts, only reflects that consultation
with attorney occurred, not the
substance of the communication.

3 72 5/3/2004 Redacted e-mail chain requesting legal advice from Not privileged or protected. For
corporate counsel relating to D&P B-6 Man Camp some parts, attorney only an
dispute. [Redacted and produced as KBR-BARKO-E009701] incidental recipient. For other
parts, only reflects that consultation
with attorney occurred, not the
substance of the communication.

3 73 5/3/2004 Redacted e-mail chain seeking and obtaining legal advice Redacted portion is privileged
from corporate counsel related to EAMAR contract and/or work product.
termination. [Redacted and produced as
KBR-BARKO-E028011]

3 74 7/5/2004 Duplicate of #1, above. [Redacted and produced as Redacted portion is privileged
KBR-BARKO-E009778] and/or work product.

3 75 6/9/2004 Duplicate of #23, above. [Redacted and produced as Not privileged or protected. Only
KBR-BARKO-E002416] reflects that consultation with
attorney occurred, not the
substance of the communication.

3 76 5/25/2004 E-mail giving legal advice from corporate counsel Privileged and/or work product.
concerning D&P B-6 Man Camp dispute.

3 77 5/3/2004 Redacted e-mail chain requesting legal advice from Not privileged or protected. For
corporate counsel relating to D&P B-6 Man Camp some parts, attorney only an
dispute. [Redacted and produced as KBR-BARKOE-010087] incidental recipient. For other
parts, only reflects that consultation
with attorney occurred, not the
substance of the communication.

3 78 6/9/2004 Duplicate of #23, above. [Redacted and produced as Not privileged or protected. Only
KBR-BARKO-E028203] reflects that consultation with
attorney occurred, not the
substance of the communication.


3             79       5/6/2004               Redacted e-mail to corporate counsel seeking legal advice        Redacted portion is privileged
                                              relating to the EAMAR contract termination. [Redacted            and/or work product.
                                              and produced as KBR-BARKO-E028220]

3             80       5/3/2004               Redacted e-mail chain seeking and obtaining legal advice         Redacted portion is privileged
                                              from corporate counsel related to EAMAR contract                 and/or work product.
                                              termination. [Redacted and produced as
                                              KBR-BARKO-E028223]

3             81       5/3/2004               Redacted e-mail chain seeking and obtaining legal advice         Redacted portion is privileged
                                              from corporate counsel related to EAMAR contract                 and/or work product.
                                              termination. [Redacted and produced as
                                              KBR-BARKO-E028260]

3             82       5/2/2004               Redacted e-mail chain seeking and obtaining legal advice         Redacted portion is privileged
                                              from corporate counsel related to EAMAR contract                 and/or work product.
                                              termination. [Redacted and produced as
                                              KBR-BARKO-E028263]

3             83       5/2/2004               Redacted e-mail chain seeking and obtaining legal advice         Redacted portion is privileged
                                              from corporate counsel related to EAMAR contract                 and/or work product.
                                              termination. [Redacted and produced as
                                              KBR-BARKO-E028268.]

3 84 5/2/2004 Redacted e-mail chain seeking and obtaining legal advice Redacted portion is privileged
from corporate counsel related to EAMAR contract and/or work product.
termination. [Redacted and produced as
KBR-BARKO-E028227]

3 85 5/2/2004 Redacted e-mail chain seeking and obtaining legal advice Redacted portion is privileged
from corporate counsel related to EAMAR contract and/or work product.
termination. [Redacted and produced as
KBR-BARKO-E028229]

3 86 5/2/2004 Redacted e-mail chain seeking and obtaining legal advice Redacted portion is privileged
from corporate counsel related to EAMAR contract and/or work product.
termination. [Redacted and produced as
KBR-BARKO-E028271]

3 87 5/2/2004 Duplicate of #83, above. [Redacted and produced as Redacted portion is privileged
KBR-BARKO-E028273.] and/or work product.

3 88 5/1/2004 Redacted e-mail chain seeking and obtaining legal advice Redacted portion is privileged
from corporate counsel related to EAMAR contract and/or work product.
termination. [Redacted and produced as
KBR-BARKO-E028277]

3 89 4/24/2004 E-mail sent to corporate counsel discussing legal advice Not privileged or protected.
from the corporate counsel about payments to EAMAR. Attorney only an incidental
recipient.

3 90 4/21/2004 Redacted e-mail seeking legal advice from corporate Redacted portion is privileged
counsel related to EAMAR contract termination. and/or work product.
[Redacted and produced as KBR-BARKO-E028282]

3 91 4/19/2004 Redacted e-mail chain seeking and containing legal Redacted portion is privileged
advice from corporate counsel related to EAMAR and/or work product.
contract termination. [Redacted and produced as
KBR-BARKO-E028286]

3 92 4/19/2004 Duplicate of #7, above. [Redacted and produced as Redacted portion is privileged
KBR-BARKO-E028289] and/or work product.

3 93 4/19/2004 Duplicate of #9, above. [Redacted and produced as Redacted portion is privileged
KBR-BARKO-E028295] and/or work product.

3 94 4/7/2004 Duplicate of #21, above. Redacted portion is privileged
and/or work product.

3 95 4/10/2004 E-mail chain seeking and obtaining legal advice from Privileged and/or work product.
corporate counsel concerning corporate registration in
Jordan and D&P sponsor-agent relationship.

3 96 5/25/2004 E-mail chain giving legal advice from corporate counsel Privileged and/or work product.
concerning D&P B-6 Man Camp dispute.

3 97 5/25/2004 E-mail chain seeking and receiving legal advice from Privileged and/or work product.
corporate counsel concerning D&P B-6 Man Camp
dispute.

3 98 Summary of cure notice review by corporate counsel Privileged and/or work product.
Michael Hatch containing legal advice about D&P B-6
Man Camp dispute.

3 99 4/26/2004 E-mail chain seeking and obtaining legal advice from Privileged and/or work product.
corporate counsel Chris Heinrich and Michael Hatch
concerning corporate registration in Jordan and D&P
sponsor-agent relationship.

3 100 5/23/2004 Draft stop-work order related to D&P B-6 Man Camp Privileged and/or work product.
dispute prepared by George Covelli sent to Michael Hatch
for legal review (attached to KBR-BARKO-036809).

3 101 11/22/2004 Duplicate of #47, above. Privileged and/or work product.

3 102 5/8/2004 Duplicate of #28 above. Privileged and/or work product.

3 103 5/8/2004 Duplicate of #29, above. Privileged and/or work product.

3 104 11/24/2004 E-mail among counsel and KBR investigator acting at Privileged and/or work product.
direction of counsel in response to Code of Business
Conduct hotline reports and status of internal
investigation as directed.

3 105 8/19/2004 Duplicate of #58, above. Not privileged or protected.
Litigation hold notice not intended
to be confidential and not attorney
work product.

3 106 8/2/2004 E-mail containing document preservation directive from Not privileged or protected.
corporate counsel for all activities under LOGCAP III and Litigation hold notice not intended
outside inquiries. Duplicate of #19, above. to be confidential and not attorney
work product.

3 107 5/24/2004 E-mail chain seeking and containing legal advice from Privileged and/or work product.
corporate counsel concerning corporate registration in
Jordan and D&P sponsor-agent relationship.

3 108 6/11/2004 E-mail chain seeking and obtaining legal advice from Privileged and/or work product.
corporate counsel Chris Heinrich and Michael Hatch
concerning corporate registration in Jordan and D&P
sponsor-agent relationship.

3 109 5/3/2004 Redacted e-mail chain seeking and obtaining legal advice Redacted portion is privileged
from corporate counsel related to EAMAR contract and/or work product.
termination. [Redacted and produced as
KBR-BARKO-E029184]

3 110 4/7/2004 E-mail seeking and obtaining legal advice from corporate Privileged and/or work product.
counsel concerning EAMAR termination.

3 111 5/16/2004 Duplicate of #53, above. Privileged and/or work product.

3 112 5/16/2004 Duplicate of #54, above. Privileged and/or work product.

3 113 8/1/2004 E-mail chain containing document preservation directive Not privileged or protected.
from Randy Harl and corporate counsel for all activities Litigation hold notice not intended
under LOGCAP III and outside inquiries. to be confidential and not attorney
work product.

3 114 8/19/2004 E-mail containing document preservation directive from Not privileged or protected.
Andy Lane and corporate counsel for all activities under Litigation hold notice not intended
LOGCAP III and outside inquiries, including additional to be confidential and not attorney
instructions from Chris Heinrich. work product.

3 115 8/2/2004 E-mail chain containing document preservation directive Not privileged or protected.
from Randy Harl and corporate counsel for all activities Litigation hold notice not intended
under LOGCAP III and outside inquiries. to be confidential and not attorney
work product.

3 116 5/13/2004 E-mail containing document reservation directive from Not privileged or protected.
Randy Harl and corporate counsel for all activities under Litigation hold notice not intended
LOGCAP III and outside inquiries. to be confidential and not attorney
work product.

3 117 9/14/2004 E-mail containing document preservation directive from Not privileged or protected.
Andy Lane and corporate counsel for all activities under Litigation hold notice not intended
LOGCAP III and outside inquiries. to be confidential and not attorney
work product.

3 118 3/18/2005 E-mail to corporate counsel seeking legal advice related Privileged and/or work product.
to D&P B-6 Man Camp termination.

3 119 Memo sent to corporate counsel for the purpose of Privileged and/or work product.
obtaining legal advice regarding potential partial
termination for default of D&P on B6 Man Camp
(attached to #118 above).

3 120 4/9/2004 E-mail chain seeking and obtaining legal advice from Privileged and/or work product.
corporate counsel Chris Heinrich and Michael Hatch
concerning corporate registration in Jordan and D&P
sponsor-agent relationship.


3             121      4/7/2004               E-mail sent to corporate counsel discussing legal advice         Not privileged or protected, except
                                              from corporate counsel Chris Heinrich about EAMAR                for three sentences in the first
                                              contract termination. [Redacted and produced as                  paragraph of the email on page 1 of
                                              KBR-BARKO-036842]                                                the document from Larry Kosowski
                                                                                                               dated April 7, 2004. Of the five
                                                                                                               sentences in that paragraph, the
                                                                                                               first and last are not privileged or
                                                                                                               protected. The middle three
                                                                                                               sentences are privileged and
                                                                                                               therefore may be redacted.
                                                                                                               Otherwise, attorney is only an
                                                                                                               incidental recipient.

3             122      4/12/2004              E-mail chain seeking and obtaining legal advice from             Privileged and/or work product.
                                              corporate counsel Chris Heinrich and Michael Hatch
                                              concerning corporate registration in Jordan and D&P
                                              sponsor-agent relationship.

3             123      5/25/2004              Duplicate of #50 above.                                          Privileged and/or work product.

3             124      4/10/2004              E-mail chain seeking and obtaining legal advice from             Privileged and/or work product.
                                              corporate counsel Chris Heinrich and Michael Hatch
                                              concerning corporate registration in Jordan and D&P
                                              sponsor-agent relationship.

3 125 Duplicate of #98 above. Privileged and/or work product.

3 126 7/22/2004 Redacted e-mail chain seeking and obtaining legal advice Redacted portion is privileged
from corporate counsel relating to subcontractor dispute and/or work product.
with EAMAR and Drilco. [Redacted and produced as
KBR-BARKO-E029895]

3 127 6/10/2004 E-mail chain seeking and obtaining legal advice from Privileged and/or work product.
corporate counsel Chris Heinrich and Michael Hatch
concerning corporate registration in Kuwait and Jordan
and D&P sponsor-agent relationship.

3 128 6/5/2004 E-mail chain seeking and receiving legal advice from Privileged and/or work product.
corporate counsel concerning corporate registration in
Jordan, D&P sponsor-agent relationship, and D&P B-6
Man Camp dispute.

3 129 7/26/2004 Redacted e-mail providing legal advice from corporate Redacted portion is privileged
counsel concerning corporate registration in Jordan and and/or work product.
D&P sponsor-agent relationship. [Redacted and produced
as KBR-BARKO-E030982]

3 130 4/9/2004 E-mail seeking legal advice from corporate counsel Chris Privileged and/or work product.
Heinrich and Michael Hatch concerning corporate
registration in Jordan and D&P sponsor-agent
relationship.

3 131 4/19/2004 E-mail chain seeking and obtaining legal advice from Privileged and/or work product.
corporate counsel Chris Heinrich and Michael Hatch
concerning corporate registration in Jordan and D&P
sponsor-agent relationship.

3 132 5/25/2004 Duplicate of #3, above. Privileged and/or work product.

3 133 2/11/2005 Redacted e-mail containing legal advice from corporate Not privileged or protected. Only
counsel relating to Heston and D&P water well contracts. reflects that consultation with
[Redacted and produced as KBR-BARKO-E032911] attorney occurred, not the
substance of the communication.

3 134 9/17/2004 Weekly report by corporate counsel on his investigations, Privileged and/or work product.
litigation preparation, and contract issues.

3 135 4/8/2005 Weekly report by corporate counsel on his investigations, Privileged and/or work product.
litigation preparation, and contract issues.

3 136 4/15/2005 Weekly report by corporate counsel on his investigations, Privileged and/or work product.
litigation preparation, and contract issues.


3             137      4/16/2004              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             138      4/22/2005              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             139      4/23/2004              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             140      4/29/2005              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             141      4/30/2004              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             142      8/6/2004               Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             143      8/12/2005              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             144      8/13/2004              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             145      8/27/2004              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.


3             146      12/15/2004             Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             147      2/4/2005               Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             148      2/11/2005              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             149      2/18/2005              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             150      2/28/2005              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             151      1/14/2005              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             152      1/21/2005              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             153      1/28/2005              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             154      7/1/2005               Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.


3             155      7/8/2005               Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             156      7/9/2004               Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             157      7/16/2004              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             158      7/23/2004              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             159      7/30/2004              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             160      6/3/2005               Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             161      6/4/2004               Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             162      6/10/2005              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             163      6/11/2004              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.


3             164      6/17/2005              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             165      6/17/2004              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             166      6/24/2005              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             167      3/4/2005               Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             168      3/11/2005              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             169      3/18/2005              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             170      3/25/2005              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             171      5/6/2005               Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             172      5/7/2004               Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.


3             173      5/13/2005              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             174      5/14/2004              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             175      5/20/2005              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             176      5/21/2004              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             177      5/27/2005              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             178      5/28/2004              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             179      11/12/2004             Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             180      1/2004                 Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3             181      10/1/2004              Weekly report by corporate counsel on his investigations,        Privileged and/or work product.
                                              litigation preparation, and contract issues.

3 182 10/15/2004 Weekly report by corporate counsel on his investigations, Privileged and/or work product.
litigation preparation, and contract issues.

3 183 10/31/2004 Weekly report by corporate counsel on his investigations, Privileged and/or work product.
litigation preparation, and contract issues.

3 184 3/29/2004 E-mail seeking and obtaining legal advice from corporate Redacted portion is privileged
counsel concerning EAMAR termination. [Redacted and and/or work product.
produced as KBR-BARKO-036848]

3 185 4/17/2004 Redacted e-mail seeking and obtaining legal advice from Redacted portion is privileged
corporate counsel concerning corporate registration in and/or work product.
Jordan and D&P sponsor-agent relationship. [Redacted
and produced as KBR-BARKO-E030985]

3 186 6/27/2006 E-mail from security investigator acting at direction and Privileged and/or work product.
under supervision of counsel to KBR employee to a KBR
employee concerning internal investigation conducted at
the direction of corporate counsel and forwarding a draft
statement for the employee.

3 187 6/7/2006 Draft statement from security investigator acting at Privileged and/or work product.
direction and under supervision of counsel to employee
(attached to #284 above).

3 188 7/16/2004 Weekly report by corporate counsel on his investigations, Privileged and/or work product.
litigation preparation, and contract issues.

3 189 5/29/2004 E-mail seeking legal advice from corporate counsel Privileged and/or work product.
concerning D&P B-6 Man Camp dispute.

3 190 5/28/2004 Draft termination for convenience related to D&P B-6 Privileged and/or work product.
Man Camp dispute prepared by George Covelli sent to
corporate counsel Michael Hatch for legal review.

3 191 7/15/2004 Redacted e-mail chain containing legal advice from Redacted portion is privileged
corporate counsel concerning corporate registration in and/or work product.
Jordan and D&P sponsor-agent relationship. [Redacted
and produced as KBR-BARKO-E031008]

3 192 3/18/2005 Duplicate of #118, above. Privileged and/or work product.

3 193 Memo from Clif Taylor to Michael Hatch describing Privileged and/or work product.
partial termination for default of D&P on B6 Man Camp
attached to e-mail to counsel.

3 194 5/25/2004 Duplicate of #97, above. Privileged and/or work product.

3 195 Duplicate of #98 above. Privileged and/or work product.

3 196 3/29/2004 E-mail chain concerning investigation and seeking legal Redacted portion is privileged
advice from corporate counsel concerning EAMAR and/or work product.
termination. [Redacted and produced as
KBR-BARKO-36852]

3 197 4/21/2004 Redacted e-mail seeking legal advice from corporate Redacted portion is privileged
counsel related to EAMAR contract termination. and/or work product.
[Redacted and produced as KBR-BARKO-E030596.]

3 198 4/12/2004 E-mail chain seeking and obtaining legal advice from Privileged and/or work product.
corporate counsel Chris Heinrich and Michael Hatch
concerning corporate registration in Jordan and D&P
sponsor-agent relationship.

3 201 6/5/2004 E-mail chain seeking and receiving legal advice from Privileged and/or work product.
corporate counsel concerning corporate registration in
Jordan, D&P sponsor-agent relationship, and D&P B-6
Man Camp dispute.

3 202 5/25/2004 E-mail chain involving Michael Hatch offering legal Privileged and/or work product.
advice relating to D&P subcontract dispute. Duplicate of
#97, above.

3 203 4/13/2004 E-mail chain between corporate counsel concerning Privileged and/or work product.
corporate registration in Jordan.

3 204 4/1/2004 E-mail chain seeking and containing legal advice from Privileged and/or work product.
corporate counsel concerning corporate registration in
Jordan and D&P sponsor-agent relationship.

3 205 2/28/2005 Redacted e-mail from corporate counsel providing legal Redacted portion is privileged
advice concerning EAMAR contract termination. and/or work product.
[Redacted and produced as KBR-BARKOE-051571]

3 206 4/19/2004 Duplicate of #8, above. [Redacted and produced as Redacted portion is privileged
KBR-BARKO-E052342] and/or work product.

3 207 4/19/2004 Duplicate of #7, above. [Redacted and produced as Redacted portion is privileged
KBR-BARKO-E053570] and/or work product.

3 208 4/19/2004 Redacted e-mail chain to and from corporate counsel Redacted portion is privileged
providing legal advice concerning EAMAR contract and/or work product.
termination. Duplicate of #9, above. [Redacted and
produced as KBR-BARKO-E056165]

3 209 6/2/2004 Redacted e-mail chain seeking legal advice from Not privileged or protected. Only
corporate counsel concerning D&P B-6 Man Camp reflects that consultation with
dispute. [Redacted and produced as KBR-BARKO-E048069] attorney occurred, not the
substance of the communication.


3             210      5/24/2004              E-mail chain seeking and containing legal advice from            Privileged and/or work product.
                                              corporate counsel concerning corporate registration in
                                              Jordan and D&P sponsor-agent relationship.

FootNotes

1. Doc. 154. In the time since these privilege logs were produced, Plaintiff-Relator Barko has disclaimed any challenge to KBR's assertion of privilege over a number of documents. See Doc. 154-7. Specifically, Plaintiff-Relator does not seek the production of Documents 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11 in Privilege Log # 2 or Documents 5, 6, 13, 14, 16, 19, 34, 39, 40, 41, 42, 43, 59, 63, 67, 68, 69, 71, 199 and 200 from Privilege Log # 3. (The Court notes that the document numbers specified by Plaintiff-Relator in Doc. 154-7 refer to an older privilege log. The document numbers given by the Court in this footnote and throughout this opinion refer to the corresponding documents contained in the privilege logs produced for in camera inspection.) Because Plaintiff-Relator does not seek production of these documents, the Court will not rule on whether or not they are privileged as the issue is moot.

2. Doc. 162.

3. Plaintiff-Relator Barko has suggested that the Court should deny the protective order in its entirety because KBR failed to comply with the requirement of Rule 26(c)(1) that the motion "include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action." See Doc. 162 at 1-2. The Court finds that this possible technical deficiency does not prevent it from deciding the merits of KBR's assertions of privilege. First, the Court is aware from numerous filings that the parties have been engaged in ongoing discussions regarding their discovery disputes. See, e.g., Doc. 154 at 2-3. Second, and more importantly, KBR would not have waived any applicable privileges by failing to comply with this requirement. KBR produced these documents for in camera inspection at the Court's instruction so the Court could evaluate KBR's assertions of privilege. Doc. 148. Because the Court would have to make its decisions regardless of whether or not KBR had moved for a protective order, the issue raised by Plaintiff-Relator is largely unimportant.

4. In re Kellogg Brown & Root, Inc., 756 F.3d 754, 757 (D.C.Cir.2014) (internal citations omitted).

5. Id. at 760.

6. See United States v. Nixon, 418 U.S. 683, 710 & n. 18, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974).

7. In re Subpoena Duces Tecum Issued to Commodity Futures Trading Comm'n, 439 F.3d 740, 750 (D.C.Cir.2006).

8. Fed.R.Civ.P. 26(b)(3)(A).

9. United States v. Deloitte LLP, 610 F.3d 129, 137 (D.C.Cir.2010) (quoting In re Sealed Case, 146 F.3d 881, 884 (D.C.Cir.1998)).

10. In re Sealed Case, 146 F.3d at 884.

11. This section's analysis applies to Document 89 in Privilege Log # 3 and some of the claimed redactions in Document 17 in Privilege Log # 2 and Documents 10, 20, 24, 25, 32, 36, 56, 62, 70, 72, and 77 in Privilege Log # 3. Other claimed redactions in Document 17 in Privilege Log # 2 and Documents 10, 20, 24, 25, 32, 36, 56, 62, 70, 72, and 77 in Privilege Log # 3 are covered by the analysis in Section III.

This section's analysis also applies to certain portions of other documents, for which the Court approves limited redactions:

• Document 26 in Privilege Log # 2 is not privileged, except for the email on page 3 of the document from Michael Hatch dated May 4, 2004. That email may be redacted as it is a privileged communication from an attorney. The rest of KBR's redactions covered communications where attorneys were mere incidental recipients, and were thus improper. • Document 36 in Privilege Log # 2 is partially privileged. The two emails on page 1 of the document — from Bill Courtney dated January 13, 2003, and from Tod Nickles dated January 13, 2003 — are not privileged, as an attorney is only an incidental recipient, and in any event they do not seek or provide legal advice. However, the rest of the emails in the document are privileged communications that may be redacted. • Documents 26 and 121 in Privilege Log # 3 are not privileged, except for three sentences in the first paragraph of the email on page 1 of the document from Larry Kosowski dated April 7, 2004. Of the five sentences in that paragraph, the first and last are not privileged. The middle three sentences are privileged and may be redacted.

12. In re Kellogg Brown & Root, Inc., 756 F.3d 754, 760 (D.C.Cir.2014).

13. Minebea Co. v. Papst, 228 F.R.D. 13, 21 (D.D.C.2005) ("`A corporation cannot be permitted to insulate its files from discovery simply by sending a "cc" to in-house counsel.'" (quoting USPS v. Phelps Dodge Refining Corp., 852 F.Supp. 156, 163-64 (E.D.N.Y.1994))).

14. This section's analysis applies to Document 16 in Privilege Log # 2 and Documents 23, 37, 57, 75, 78, 133, and 209 in Privilege Log # 3. It also applies to some of the claimed redactions in Document 17 in Privilege Log # 2 and Documents 10, 20, 24, 25, 32, 36, 56, 62, 70, 72, and 77 in Privilege Log # 3. Other claimed redactions in those documents are covered by Section II.

15. United States v. Legal Servs. for New York City, 249 F.3d 1077, 1081 (D.C.Cir.2001) ("Courts have consistently held that the general subject matters of clients' representations are not privileged. Nor does the general purpose of a client's representation necessarily divulge a confidential professional communication, and therefore that data is not generally privileged. To be sure, there are exceptions, but as always the burden of demonstrating the applicability of the privilege lies with those asserting it." (internal citations omitted)).

16. See, e.g., Edward J. Imwinkelried, The New Wigmore: Evidentiary Privileges § 6.7.1 (2014) ("[P]rivileges protect only communications, not the facts stated in the communication, facts learned by virtue of the relationship; the fact that something was omitted in a communication; the fact that there was a communication; the time of, date of, or participants in the communication; the fact that [a] layperson has retained a professional, such as an attorney; or the general nature or topic of the communication such as a `tax' or `criminal' matter. Although what the attorney and client say about their chosen topic is privileged, conceived at a high level of abstraction the topic itself is unprivileged." (citations omitted)).

17. See Restatement (Third) of Law Governing Lawyers § 69 (2000) ("A communication ... is any expression through which a privileged person ... undertakes to convey information to another privileged person and any document or other record revealing such an expression."). Because these actions are not "communications," they are not privileged.

18. It is of no moment that some of these emails also copied an attorney. Given the generality of the issues discussed, it seems likely that the intent of the sender of the email was simply to alert the attorney that a confidential communication would be forthcoming in the future. In any event, the burden of establishing privilege is on the party opposing production, and KBR has not established that these documents were shielded confidential communications to an attorney rather than unsheltered directions to another employee to talk to an attorney about a general topic.

19. On a related but slightly different note, the Court also concludes that to the degree that Document 15 in Privilege Log # 3 reveals communications to or from an attorney, it does so for the purpose of seeking business advice. Because the communication contained in this document does not have either seeking or providing legal advice as one of its significant purposes, it must be disclosed.

20. The analysis in this section applies to Documents 12 and 13 in Privilege Log # 2 and Documents 12, 18, 35, 58, 105, 106, 113, 114, 115, 116, and 117 in Privilege Log # 3.

21. E.g., Muro v. Target Corp., 250 F.R.D. 350, 360 (N.D.Ill.2007).

22. Restatement (Third) of Law Governing Lawyers § 71 cmt. c (2000). See also id. at § 71 ("A communication is in confidence ... if, at the time and in the circumstances of the communication, the communicating person reasonably believes that no one will learn the contents of the communication except a privileged person...."); Restatement (Third) of Law Governing Lawyers § 70 (2000) ("Privileged persons ... are the client (including a prospective client), the client's lawyer, agents of either who facilitate communications between them, and agents of the lawyer who facilitate the representation."); Chubb Integrated Sys. Ltd. v. Nat'l Bank of Washington, 103 F.R.D. 52, 67 (D.D.C.1984) ("Confidentiality is the dispositive factor in deciding whether a communication is privileged."); Hearn v. Rhay, 68 F.R.D. 574, 579 (E.D.Wash. 1975) ("However, the privilege is limited to communications expressly intended to be confidential, and some showing of an intention of secrecy must be made; the mere relation of attorney and client does not raise a presumption of confidentiality.").

23. Edward J. Imwinkelried, The New Wigmore: Evidentiary Privileges, § 6.12.4 (2014) (citing, among other things, Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) and Restatement (Third) of Law Governing Lawyers § 73 cmt. g (2000)).

24. Id. at n.162 & accompanying text (2014); see id. at n.164 & accompanying text ("However, there is a waiver when the entity circulates the written material to any wider circle of persons, even if the circle consists entirely of persons who are also employees or agents of the organization." (internal quotation marks omitted)).

25. The notices did contain a header describing them as "Privileged & Confidential." This designation is not, however, controlling. This type of boilerplate labeling, without any more detailed instruction about the scope of the confidentiality, is not a concrete direction to employees to avoid disclosing the substance of the document. Moreover, follow-up emails encouraging employees to share the notice amongst themselves would destroy whatever confidentiality may have existed.

26. Fed.R.Civ.P. 26(b)(3)(A).

27. Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 91 L.Ed. 451 (1947).

28. E.g., In re eBay Seller Antitrust Litig., No. C 07-01882 JF (RS), 2007 WL 2852364, at *2 (N.D.Cal. Oct. 2, 2007).

29. Even in the eBay Seller case, where the court ultimately did not compel the production of the litigation hold notices, the Court noted that whether attorney-client privilege or work product protection applied was "far from certain." Id. at *2 n. 3.

30. See, e.g., Gibson v. Ford Motor Co., 510 F.Supp.2d 1116, 1123-24 (N.D.Ga.2007).

31. Doc. 184 at 2.

32. See Doc. 203 (compelling production of these documents).

Source: Leagle

U.S. EX REL. BARKO v. HALLIBURTON CO., 74 F.Supp.3d 183 (2014)

OPINION & ORDER

[Resolving Doc. 154]

I. Legal Standards and Introduction

II. Documents with Attorneys as Incidental Recipients11

III. Documents Reflecting That a Consultation Occurred14

IV. Litigation Holds20

V. Remaining Documents

VI. Conclusion

APPENDIX A

FootNotes

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U.S. EX REL. BARKO v. HALLIBURTON CO., 74 F.Supp.3d 183 (2014)

OPINION & ORDER

[Resolving Doc. 154]

I. Legal Standards and Introduction

II. Documents with Attorneys as Incidental Recipients11

III. Documents Reflecting That a Consultation Occurred14

IV. Litigation Holds20

V. Remaining Documents

VI. Conclusion

APPENDIX A

FootNotes

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