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Legal Report November 2015


Investigations. Documents produced during an internal corporate investigation are protected by attorney-client privilege and do not have to be disclosed to a whistleblower, a federal appeals court ruled.

The ruling stems from a False Claims Act complaint filed by Harry Barko, a former Kellogg Brown & Root (KBR) subcontracts administrator, alleging that KBR and other subcontractors inflated costs and took kickbacks to defraud the U.S. government while under military contract in Iraq.

During the discovery process, Barko sought documents related to KBR's prior internal investigation overseen by KBR's legal department into the alleged fraud.

KBR, however, refused to turn the documents over. Instead, it argued that the internal investigation was conducted to obtain legal advice and the documents were protected by attorney-client privilege.

Barko pressed his argument with the court, saying the internal investigation documents were unprivileged business records that he was entitled to discover. The court ruled in his favor, explaining that KBR's internal investigation was "undertaken pursuant to regulatory law and corporate policy, rather than for the purpose of obtaining legal advice," and the documents were not protected by attorney-client privilege.

The court ordered KBR to produce the documents Barko had requested. KBR appealed the lower court's decision, and the U.S. Court of Appeals for the District of Columbia Circuit ruled in its favor. The appeals court found that KBR had conducted the internal investigation "pursuant to its code of business conduct," and the documents are protected by attorney-client privilege, according to the written opinion.

Allowing the district court's ruling to stand, the appeals court said, would "ring alarm bells in corporate general counsel offices throughout the country about what kinds of descriptions of investigatory and disclosure practices could be used by an adversary to defeat all claims of privilege and protection of an internal investigation."

And these alarm bells would be well founded, the court explained. "If all it took to defeat the privilege and protection attaching to an internal investigation was to notice a deposition regarding the investigations, we would expect to see such attempts to end-run these barriers to discovery in every lawsuit in which a prior internal investigation was conducted relating to the claims," the opinion said. (In Re. Kellogg Brown & Root, Inc., U.S. Court of Appeals for the District of Columbia Circuit, No. 14-5319, 2015)

Firearms. A man can openly carry a legally-owned pistol into his daughter's elementary school because the school district does not have the legal authority to create a local weapons policy prohibiting firearms, according to a Michigan case.

In September 2013, Kenneth Herman went to Edgerton Elementary to get a copy of his daughter's bus schedule. Harmon has a concealed pistol license (CPL) and was openly carrying a pistol. During his visit to the school, he spoke with the principal of the school, Kate Mitchell, who did not mention the pistol.

While at the school, Herman noticed a sign that said the school was a weapon-free zone. He sent an e-mail to the district superintendent asking for a meeting, where he informed school officials that he believed the sign had been posted without legal authority and contrary to state law.

Under Michigan law, individuals cannot carry concealed pistols into schools or onto school property, unless the fire­arm is inside a vehicle. Carrying a concealed pistol within a building—with or without a CPL—is illegal, except for individuals that meet certain exception criteria.

However, there is no Michigan law making it illegal to openly carry pistols on school property. Instead, most districts have adopted policies that make schools gun-free zones.

Two days after his initial visit to Edger­ton, Herman went to the school to pick his daughter up and was again openly carrying a pistol. While there, school officials called the police and asked Herman to leave. Herman complied, and the school district later notified parents of the incident.

Herman then met with school administrators and board members in an attempt to change the weapons policy. However, he was informed that the elementary school—part of the Clio Area School District—followed the Genesee County Intermediate School District's policy of prohibiting open carry of firearms on school grounds.

Throughout the remainder of the fall semester, Herman made several attempts to pick up his daughter from school or visit for school functions, but was denied access because he was openly carrying a pistol. On one occasion, Herman was allowed to enter the school but was later asked to leave and told that if he entered again while openly carrying, the police would be summoned and he'd be charged with trespassing.

Herman, along with nonprofit Michigan Open Carry, then filed suit against the school district, demanding that it change its weapons policy because it was a violation of state law. The district argued, however, that state law allows school districts to create policies to safeguard students, thus allowing them to prohibit firearms.

Genesee Circuit Judge Archie Hayman ruled in favor of Herman, explaining that school districts do not have the legal authority to create local weapons policies. By attempting to create the policy, Hayman said the district was intruding upon the lawmaking authority of the state.

The school district plans to appeal the ruling in Michigan's Court of Appeals. (Michigan Open Carry, Inc., and Kenneth Herman v. Clio Area School District, Mich­igan Seventh Circuit Court for the Genesee County Civil Division, No. 104373-CZ, 2015)​


Workplace participation. The U.S. Equal Employment Opportunity Commission (EEOC) released a report on the changes to the demographics of the American workforce since 1965.

The report shows that since 1966—when African-Americans, Hispanics, and Asian-Americans each made up less than 1 percent of senior-level positions—the participation rates for all three groups have increased by five to seven times. Additionally, the participation rate of women in professional positions, which require bachelor or graduate degrees or professional certifications, has risen from approximately 14 percent in 1966 to more than 53 percent in 2013.

However, women and minorities remain segregated in lower-paying positions. Hispanics make up 20.5 percent of service workers and 29.2 percent of laborers, while only 5.7 percent are in the professionals category. African-Americans had similar numbers, making up 23.3 percent of service workers and 18.7 percent of laborers, but only 7.6 percent of professionals.

"Despite notable progress in diversity and inclusion in the workplace over the past half century, this report highlights continued job segregating by race and gender, with women and people of color disproportionately occupying lower- paying positions," said EEOC Chair Jenny R. Yang in a statement.

Violent extremism. House Homeland Security Committee Chair Michael McCaul (R-TX) introduced legislation that would create a U.S. Department of Homeland Security (DHS) Office for Countering Violent Extremism.

The bill (H.R. 2899) authorizes $10 million for the DHS secretary to establish the office through 2020 to coordinate the department's efforts to counter violent extremism by identifying risk factors that contribute to violent extremism in U.S. communities and their potential remedies; identifying populations targeted by violent extremist propaganda, messaging, or recruitment; and managing DHS outreach and engagement efforts to at-risk communities.

The measure also requires the office to create a counter-messaging program to combat violent extremism that can be leveraged on new and existing Internet platorms and other technologies, such as social media.

The bill has five Republican cosponsors and was referred to the House Homeland Security Committee.

Vehicle cybersecurity. Senators Ed Markey (D-MA) and Richard Blumenthal (D-CT) introduced a bill that directs the National Highway Traffic Safety Administration (NHTSA) and the Federal Trade Commission (FTC) to create federal standards to secure vehicles.

S. 1806, the Security and Privacy in Your Car Act of 2015, instructs the NHTSA and FTC to create vehicle performance standards that require all access points in vehicles to be equipped with reasonable measures to protect against hacking attacks, all collected information from the vehicle to be secured to prevent un­wanted access, and all vehi­cles to be equipped with technology that can detect, report, and stop hacking attempts in real-time.

S. 1806 has been referred to the Senate Commerce, Science, and Transportation Committee.​



Citizenship. Australia's Parliament is considering legislation that would strip citizenship from dual nationals for taking up arms against Australia.

The Australian Citizenship Amendment (Allegiance to Australia) automatically strips dual nationals of their Australian citizenship if they engage in terrorist activity, if they go overseas to fight for foreign armies classified as enemies of Australia or designated as terrorist organizations, or if they are convicted of terrorism by an Australian court.

The individual's Australian citizenship would be rescinded regardless of how he or she became a citizen—including if the individual became a citizen at birth. Once a dual national's citizenship has been revoked, the individual can never become an Australian citizen again.

The measure has been referred to the House of Representatives Joint Committee on Intelligence and Security.


Cybersecurity. China proposed a draft law that would require Internet companies to register users' real names, localize data, and aid government surveillance.

The China Network Security Law would require companies to restrict online anonymity, to store user data in China, and to monitor and report to the government undefined network security incidents.

Critics of the draft law have raised concerns that it will require companies to adopt inadequate safeguards to protect privacy and to engage in censorship.