The full U.S. Court of Appeals for the D.C. Circuit on Tuesday declined to hear a dispute over whether Kellogg Brown & Root Services Inc. should be forced to disclose certain internal documents to a whistleblower. A three-judge panel earlier ruled for the contractor, shielding the information.
Attorneys Michael Kohn, Stephen Kohn and David Colapinto, who represent whistleblower Harry Barko in his False Claims Act lawsuit against KBR, in July asked the full D.C. Circuit to review the panel ruling. The panel—D.C. Circuit judges Thomas Griffith, Brett Kavanaugh and Sri Srinivasan—said the information can remain confidential under the attorney-client privilege. The business community heralded the panel decision, which overturned a trial judge’s order that KBR must release the information.
No D.C. Circuit judge requested a vote on Barko’s full-court petition, the court said in its order Tuesday. Stephen Kohn said he intends to take the dispute to the U.S. Supreme Court. “It’s a setback for independent compliance programs,” he said.
The KBR papers concern an investigation into whether the company and a subcontractor, Daoud & Partners Inc., maintained an inappropriate relationship that involved kickbacks. Daoud built and staffed laundry facilities in Iraq for the U.S. military.
Barko’s lawyers warned in their petition to the full D.C. Circuit that if the court didn’t vacate the three-judge panel’s ruling “it will result in an explosion of emergency petitions for writs of mandamus seeking immediate interlocutory review of discovery rulings on privilege claims and result in efforts to extend the unprecedented standard adopted by the panel to other jurisdictions.”
KBR’s lawyers weren’t convinced. They said in a court filing that the ruling wouldn’t “open the floodgates to interlocutory privilege appeals.” The company’s lawyers include solo practitioner John Faust and Vinson & Elkins partners John Elwood and Craig Margolis, counsel Tirzah Lollar and associates Jeremy Marwell and Joshua Johnson.
“We’re gratified, but not surprised,” Elwood said of the D.C. Circuit’s decision on Barko’s full-court petition.