Fluor’s disclosure to the government about its investigation, as required by a regulation, didn’t constitute a waiver of attorney-client privilege, the U.S. Court of Appeals for the Fourth Circuit said Wednesday in a nonprecedential opinion granting a writ of mandamus.
The court initially granted the writ in a March 13 order.
A district court’s conclusion that Fluor waived privilege by making statements in the disclosure only a lawyer could make was “clearly and indisputably incorrect,” the court said.
The fact that the disclosure covered the same topic as the internal investigation, or that it made the disclosure under advice of counsel, doesn’t mean Fluor disclosed privileged communications, the court said.
Fluor’s statements merely described general conclusions about the employee, the court said.
The district court’s view of privilege could also force contractors to err on the side of making vague or incomplete disclosures in the future, the court added.
Fluor investigated an alleged conflict of interest involving an employee and Relyant LLC, a company Fluor planned to award a contract. Fluor told the government it believed the employee had a conflict of interest due his financial interest in a potential subcontractor.
The employee sued Fluor for wrongful termination and defamation, and sought copies of Fluor’s files regarding the internal investigation.
Fluor sought a writ of mandamus after the district court ordered production, the court said.
Judges Albert Diaz, Stephanie D. Thacker, and Allison Jones Rushing served on the court’s panel.
Arnold & Porter Kaye Scholer LLP represented Fluor.
The case is In re Fluor Intercontinental Inc., 4th Cir., No. 20-1241, unpublished 3/25/20.