Think That Internal Investigation Is Protected? Think Again
A recent district court ruling that documents produced during internal compliance investigations are not protected could have important implications for laboratories and other health care providers. A March 6 ruling in the U.S. District Court of the District of Columbia concerning a discovery request by a qui tam plaintiff relator compelled the defendants in the […]
A recent district court ruling that documents produced during internal compliance investigations are not protected could have important implications for laboratories and other health care providers. A March 6 ruling in the U.S. District Court of the District of Columbia concerning a discovery request by a qui tam plaintiff relator compelled the defendants in the case to produce documents related to an internal Code of Business Conduct (COBC) investigation that the defendants considered protected under attorney-client privilege and work product doctrine. The defendants in the Department of Defense (DOD) False Claims Act case include Kellogg Brown & Root Services Inc., KBR Technical Services Inc., Kellogg Brown & Root Engineering Corp., Kellogg Brown & Root International Inc., and Halliburton Co. (KBR). The relator is Harry Barko. Barko sought documents related to internal audits and investigations into the alleged misconduct by KBR that were conducted as part of the organization’s compliance program, which requires internal controls such as the COBC. Compliance programs are mandatory for companies contracting with the DOD. In its written response to the request for documents, KBR said it was withholding documents related to the request by Barko. The court, after opposition was filed, ordered KBR to produce the documents for an in-camera review, meaning that the court would review the documents in private. After said review, the court labeled the COBC reports as “eye-openers.” Mandatory Compliance Program Investigations The important aspect of this case for health care companies is that the case concerns investigations conducted as part of a compliance program. The investigations that were conducted, including interviews of employees, were conducted as part of KBR’s compliance program, which includes similar elements as are included in all health care compliance programs. The court ruled that since the investigations were routine ongoing corporate compliance investigations required by regulatory law and corporate policy they were not protected. They would have been conducted in any case, whether or not legal advice was being sought. The COBC investigations were a result of KBR’s need to comply with government regulations. The interviews with employees were carried out by a nonattorney. Similar arguments were made by the court to overcome the work product protections. As a result, the relator Barko was granted access to all 89 documents relating to the COBC investigation. Takeaway: This case changes the climate for health care companies required to implement compliance programs. Laboratories and other providers should carefully consider how to react to findings of internal audits and investigations conducted as a result of the requirements of those programs.