[00:00:03] Speaker 04: Case number 14-5319, Henry Kellogg Brown and Ruth Ink and Elle Petitioners. [00:00:09] Speaker 02: Mr. Ellwood for the petitioners, Mr. Cohn for the respondent. [00:01:27] Speaker 01: OK, let's go. [00:01:29] Speaker 05: As the court, John Elwood for Kellogg, Brown, and Root. [00:01:32] Speaker 05: For two main reasons, the district court erred clearly in ordering KBR to produce on waiver grounds documents, the COBC documents that this court previously found to be privileged. [00:01:43] Speaker 01: First, even if they- Can I just suggest that, remember, this is mandamus, right? [00:01:48] Speaker 01: So for you to prevail, you've got to show that the district court's error was clear and indisputable. [00:01:55] Speaker 05: Right, and I think that it is clear and indisputable. [00:01:58] Speaker 01: Okay, that's the case you need to make. [00:01:59] Speaker 05: Right, for two reasons. [00:02:00] Speaker 01: Not just that it's wrong. [00:02:02] Speaker 05: Right. [00:02:02] Speaker 01: But then it's clearly indisputable. [00:02:05] Speaker 05: Absolutely. [00:02:06] Speaker 01: OK, go ahead. [00:02:07] Speaker 05: And first of all, regardless of whether you view KBR's statements as a waiver, and I hope to get to that next, once KBR immediately disavowed the allegedly waiving inference, there was no basis for compelling disclosure of the documents. [00:02:24] Speaker 01: Is there a case that you can cite for that proposition? [00:02:27] Speaker 05: I assumed from the Second Circuit, Koch versus Koch from this court. [00:02:33] Speaker 01: Were those cases where a privilege had been misused as here, and then they attempted to withdraw it? [00:02:45] Speaker 05: First of all, we would dispute the narrative. [00:02:46] Speaker 01: Well, let's assume we think it was, because you went on to this argument. [00:02:50] Speaker 01: So I assume you went to this argument because you're assuming that the district court was correct on the first one. [00:02:55] Speaker 05: No, it's only because I think that the error is even clearer here. [00:02:59] Speaker 05: And since we're talking about clear error, I think this is a real outlier, the disavowal argument. [00:03:02] Speaker 01: Well, but for that to be clear error, I would expect you to find a case just exactly in point. [00:03:06] Speaker 01: Well, I think... It says, just in these circumstances, a court held that this was an error. [00:03:13] Speaker 01: Can you cite one? [00:03:14] Speaker 01: Because... What's the best case you've got? [00:03:16] Speaker 05: I think the best case we have are Simms and Koch. [00:03:19] Speaker 01: Okay, what are the facts of those? [00:03:21] Speaker 05: Because, well, in Simms... Yeah. [00:03:24] Speaker 05: And Sims was the case involving, I mean, where it was allegedly waving in a deposition, and he later disavowed that. [00:03:32] Speaker 01: In Koch, there was a case where it was... Is that a very specific case like this one, or just a general disavowal? [00:03:37] Speaker 05: Well, it was a specific disavowal. [00:03:40] Speaker 05: But I mean, the court was very clear there that it said that it was inexplicable that once he disavowed it, that there was no longer anything left for the other side to have to refute. [00:03:49] Speaker 05: And as this court said in Koch versus Cox, the point of the at-issue waiver is not to punish counsel. [00:03:56] Speaker 05: The point is to allow the other side to engage in argument that is based in part on attorney-client privilege material. [00:04:04] Speaker 05: And we immediately disavowed any such inference. [00:04:07] Speaker 05: Literally, in the very next pleading after Relator first raised it on February 18th, on February 20th, we said, we are not trying to draw any inference from the contents of the COBC documents. [00:04:18] Speaker 05: When the court then mused about it on March 11th, we said on the very following day in our first mandamus petition, we're not trying to draw that inference at all. [00:04:29] Speaker 05: So, I mean, we've said at every turn that it's not the inference we're trying to draw, and no court before has, to our knowledge, drawn an inference from a deposition. [00:04:44] Speaker 04: The question really concerned two things. [00:04:59] Speaker 05: The first half of the question, which was separated by 30 pages, all of which winds up as just three dots in the judge's opinion. [00:05:05] Speaker 05: But the first questioning was to establish that this was, in fact, attorney-client privilege material. [00:05:12] Speaker 05: We said we had an obligation to report if we discovered there was reasonable cause. [00:05:17] Speaker 05: And the point of the investigation was to determine whether we had reasonable cause. [00:05:21] Speaker 05: And the excerpted part was, isn't it true that after you've had investigations where it's turned up something, you paid the government, you disclosed it? [00:05:30] Speaker 05: And in those investigations, you did not turn over the reports. [00:05:34] Speaker 05: And why didn't you? [00:05:35] Speaker 05: Because they were attorney-client privilege. [00:05:37] Speaker 05: Skip ahead 30 pages. [00:05:39] Speaker 05: The second one is to, I think, was legitimately, and that's where he says, did you report anything here? [00:05:45] Speaker 05: And I think that is legitimately, you can ask them that in order to establish that you didn't just ignore these allegations, that you were not willfully blind, that you did something with them. [00:05:54] Speaker 05: And I think that the fact that they didn't make a disclosure is relevant. [00:05:59] Speaker 05: If they had made a disclosure, the other side would want to know that. [00:06:01] Speaker 05: The other side would want to know what was in the disclosure, so they could argue waiver, among other things, if there were privileged materials in it. [00:06:08] Speaker 05: But beyond that, they're not aware of any other court that has said you can waive in a deposition. [00:06:13] Speaker 05: We have a county of Erie, don't waive in a deposition. [00:06:16] Speaker 05: Sims says you don't waive in a deposition, so you use it. [00:06:18] Speaker 01: Sims, the council was pro se. [00:06:20] Speaker 05: Well, that's true, but they said that was further consideration. [00:06:24] Speaker 05: His pro se status was always only quote unquote further consideration. [00:06:27] Speaker 05: They said it was inexplicable because they said deposition, you don't waive in a deposition until you try to use that testimony. [00:06:34] Speaker 05: And here we say we never tried to use it. [00:06:37] Speaker 05: You know, they cite our footnote in the introduction of our summary judgment motion, which we disavowed any inference about what those documents said, the first occasion we could, literally one and two days later. [00:06:47] Speaker 05: So I mean, this case, the judges' rulings in this case are outliers at every step in saying you can't disavow. [00:06:54] Speaker 05: There are outliers in saying that you could waive this on deposition. [00:06:58] Speaker 04: Do you think you can't disavow, or are you not affected by disavow? [00:07:00] Speaker 05: You will, it is that you basically, your party doesn't have the opportunity to disavow an allegation. [00:07:07] Speaker 03: It seemed that the district court judge said the only way you can disavow is basically if you are going to disavow all your defenses and basically stipulate to a default judgment or something. [00:07:19] Speaker 05: That's right. [00:07:20] Speaker 05: That's the way he read Bittaker. [00:07:22] Speaker 05: But I think that is incorrect. [00:07:24] Speaker 05: And I mean, as one of the treatises notes that for a claim, defense, or argument, that the point is you can disavow that argument. [00:07:36] Speaker 05: It leaves all the other ones intact. [00:07:38] Speaker 05: It doesn't mean that you just have to take a default. [00:07:41] Speaker 05: And that is, I think, another area where this is the first court who's ever held that you've got to, you know, the options are basically, you know, default judgment or going ahead with a waiver that is based in part on a deposition, which again is a complete novelty. [00:07:56] Speaker 05: and on, you know, a footnote and a summary judgment motion that is never cited in the argument section of the brief. [00:08:03] Speaker 05: So I think that is, I think, the first area that we think is clear error is the fact that the fact that the judge is not... What about your opposition to the motion to compel? [00:08:14] Speaker 01: I'm sorry? [00:08:14] Speaker 01: What about your opposition to the motion to compel? [00:08:17] Speaker 05: Oh, the motion to compel, I encourage you all to look at it. [00:08:20] Speaker 05: I am. [00:08:20] Speaker 01: I'm looking at it right now. [00:08:22] Speaker 01: You took advantage. [00:08:24] Speaker 05: Right, because I think it's all leading up to the point which we're saying here. [00:08:28] Speaker 05: There are two statements in here which were excerpted from the judge's opinion. [00:08:33] Speaker 05: But we said KBR in the past made such disclosures. [00:08:37] Speaker 05: But the reason why we said that is for the next sentence. [00:08:39] Speaker 05: KBR cooperates in subsequent investigations. [00:08:43] Speaker 05: But KBR has always maintained a strict policy of refusing to waive privilege over its investigations. [00:08:48] Speaker 05: When it does disclose facts to government agencies, it always withholds the COBC reports themselves, et cetera. [00:08:53] Speaker 05: And then you go on to the next thing, which the judge did quote, with respect to the COBC investigation subject to the present motion to compel these practices were followed. [00:09:00] Speaker 05: Our point of saying this was to say we keep these documents privileged. [00:09:05] Speaker 05: And even when we make a disclosure, we don't turn that over to the government. [00:09:09] Speaker 03: We don't turn that over to the government. [00:09:10] Speaker 03: Were there ground rules established for the deposition of Mr. Heinrich? [00:09:16] Speaker 03: Heinrich? [00:09:18] Speaker 03: Because it seemed quite odd to notice a 30B6 deposition. [00:09:23] Speaker 03: I think it was topic Q that was all about these investigations, the COBC investigations, when [00:09:33] Speaker 03: they're all privileged. [00:09:34] Speaker 03: So what was the purpose of the deposition in the first place? [00:09:37] Speaker 05: I'm sorry, I'm not meaning to interrupt you, but the other side noticed that question and I think they wanted to see what they could get out of them. [00:09:45] Speaker 05: And when we asked our questions, it was literally to establish the factual predicate for asserting attorney-client privilege over those documents because this was all ongoing at the same time. [00:09:57] Speaker 05: their motion to compel was filed right around the time that we deposed Heinrich and then later filed our motion for summary judgment. [00:10:03] Speaker 05: So that was the point of much of the question was just to establish that this was a legal inquiry that we had lawyers overseeing and that we were trying to get to the bottom of this so we could provide legal advice from the in-house lawyers about whether to turn anything over to the government. [00:10:18] Speaker 05: Thank you. [00:10:22] Speaker 05: Let me see here. [00:10:24] Speaker 05: I think that this is a broad and unsettling rule for a couple of reasons. [00:10:31] Speaker 05: As I've already indicated, it is a novel rule. [00:10:34] Speaker 05: It is novel in the sense that all of the judgments, all of the components of the opinion under review are novel. [00:10:41] Speaker 05: And the Supreme Court in Mohawk said that novel decisions are one of the areas where mandamus remains available. [00:10:50] Speaker 05: And I think it is really unsettling for three reasons. [00:10:53] Speaker 05: First of all, in the disavowal, because there are a lot of defenses where, as one of the treatises says, the at-issue waiver is the most dangerous privilege principle, because you don't necessarily know when you're going to stumble into it. [00:11:08] Speaker 05: Under SAIC, for example, the fact that you have a compliance program in place is relevant to mens rea. [00:11:13] Speaker 05: So if you want to establish that you have a compliance program in place to introduce later, you know, you get that evidence out there in the deposition and they say, you know, if it's not that far to trip into under the judge's opinion, a waiver, which under his lights, is something you can't disavow. [00:11:30] Speaker 05: And those are two things that I think are incredibly damaging as the amicus brief that was lodged with this court attempted to outlie it. [00:11:40] Speaker 05: In addition to that, there is the second order, the December 17th, the second order from that day, which was another outlier in that it said that [00:11:50] Speaker 05: Basically, communications from assistance investigators working on behalf of attorneys were not privileged unless they were reporting communications from so-called real witnesses, you know, percipient witnesses, which is again another outlier and another thing that the Bride Coalition of Amiki said that it was unsettling to their use of investigators. [00:12:14] Speaker 05: There's one last thing that I really think it's important to address and that is that [00:12:18] Speaker 05: Justice must satisfy the appearance of justice, and we think that there is really a compelling case from the course of conduct here that the judge, you know, an impartial observer could say that he has abandoned his mantle as an impartial arbiter of arguments made by the parties, and he's become an inquisitor himself. [00:12:37] Speaker 05: There are, I mean, the last rounds of briefing were all not things that were raised by the other side, but were raised by the judge. [00:12:44] Speaker 05: For example, on remand from this court where the court held these documents for privilege, he said maybe they're not privileged on a different ground, a ground of his own devising. [00:12:52] Speaker 05: Maybe they were waived, he came up with his own ground of waiver involving the failure to give the government a privilege law. [00:13:01] Speaker 05: And finally... You're well over time, so finish your sentence. [00:13:05] Speaker 05: And in addition to that, the judge, who was supposed to be protecting us from prejudice, disclosed block quoted from privileged documents in two orders since the remand, including one order that began by noting that we were likely to appeal. [00:13:22] Speaker 05: So for that reason, we ask that the judge be granted. [00:13:27] Speaker 01: Okay, thank you. [00:13:33] Speaker 00: Good morning, Your Honors, if it may please the Court. [00:13:36] Speaker 00: I'd like to first quickly address two issues that were raised here. [00:13:42] Speaker 00: First, with respect to disavowal, what is critical about the cases is that the disavowal is all viewed at the intent at the time the [00:13:58] Speaker 00: issue giving rise to the waiver occurred. [00:14:02] Speaker 00: And in Sims, the Court of Appeals said it was clear that there was no intent on the part of Sims when he was deposed to waive his privilege. [00:14:12] Speaker 03: And in... Here's my question to you. [00:14:17] Speaker 03: Why was this topic even designated by you in your 30b6 deposition of Mr. Hyrie? [00:14:26] Speaker 03: Why is it a relevant and proper scope of inquiry to ask him questions about an investigation that is covered by attorney-client work privilege? [00:14:39] Speaker 00: Most important reason is that we filed our interrogatory response. [00:14:44] Speaker 00: Interrogatory response one, ask KBR to identify all the witnesses, provide us the contact information, and give us a summary of what you know that these witnesses had to say. [00:14:57] Speaker 00: We got nothing back in response. [00:14:58] Speaker 00: We didn't even get contact information. [00:15:00] Speaker 00: All we got was a list of names. [00:15:02] Speaker 00: And so we did our 36 notice of deposition with a lot of topics. [00:15:09] Speaker 00: KBR chose who to produce. [00:15:12] Speaker 00: We had no clue they were going to produce their attorney. [00:15:15] Speaker 03: Well, one of your topics is the investigation. [00:15:18] Speaker 03: So who would they produce other than the attorney who supervised the investigation? [00:15:22] Speaker 00: Well, if they wanted to produce someone who wouldn't waive the privilege, then they wouldn't produce their attorney. [00:15:28] Speaker 03: Well, anyone talking about it could presumably waive the privilege. [00:15:34] Speaker 00: And they did. [00:15:35] Speaker 00: That's the whole thing. [00:15:36] Speaker 03: So you can notice a deposition on a topic that's clearly privileged, and if they produce someone, then that's kind of tough? [00:15:48] Speaker 00: Well, that is true, but that's not what was happening here. [00:15:51] Speaker 00: What was happening here is we were in a search for information. [00:15:56] Speaker 00: Yes, there was this one topic that we noticed. [00:15:58] Speaker 00: However, [00:16:00] Speaker 00: KDR was very clear, and in the first half of the deposition during all my questioning, we got nothing and there was no basis for waiver. [00:16:08] Speaker 00: That's the end of the ballgame. [00:16:11] Speaker 00: We were ready to go home. [00:16:12] Speaker 00: Well, let me ask you this. [00:16:14] Speaker 03: Let me ask you this question. [00:16:16] Speaker 03: Every day in a courtroom somewhere in America, following type of questioning happens. [00:16:25] Speaker 03: Police officer says, I had a 911 call that there was a fight in a bar, two guys involved in a fight. [00:16:35] Speaker 03: I go to the bar, I talk to the officers who were there already investigating. [00:16:42] Speaker 03: Based on that, I direct them to arrest the defendant. [00:16:47] Speaker 03: The other guy wasn't arrested. [00:16:51] Speaker 03: Something like that happens every day. [00:16:54] Speaker 03: Any hearsay objections to that testimony would be overruled because the court would say that him just talking about the fact that he spoke to people who investigated and then made a determination that this guy would be arrested is not hearsay. [00:17:14] Speaker 03: Okay, and to the extent that there's any prejudice, it's minimal because we'll hear from the witnesses who saw what happened. [00:17:26] Speaker 03: So if that's the way that it works, how is this some sort of major damning inference for you that this guy testifies that we did investigations, in some investigations we make reports and we give refunds, etc. [00:17:45] Speaker 03: We did an investigation here and we didn't. [00:17:48] Speaker 03: How is that unlike what happens in court every day and that's not seen as any big deal at all? [00:17:55] Speaker 03: How is this some big waiver? [00:17:57] Speaker 00: Very good question. [00:17:58] Speaker 00: The answer is that in this case, the central focus of Cape York's claim [00:18:03] Speaker 00: was that Barker was an amateur auditor and he didn't have didn't know what he was doing. [00:18:08] Speaker 00: We KBR are the professionals. [00:18:10] Speaker 00: We did a big professional audit and we found that there was absolutely nothing. [00:18:15] Speaker 00: That was a and the district court made a decision. [00:18:18] Speaker 03: I read the summary judgment brief and they don't make that argument at all. [00:18:21] Speaker 03: Excuse me? [00:18:22] Speaker 03: They don't make that argument in their summary judgment brief. [00:18:24] Speaker 03: Their arguments are all about [00:18:26] Speaker 03: the contracts were properly procured, et cetera, et cetera. [00:18:30] Speaker 03: They don't rely upon Heinrich's statement to prove any point of their arguments. [00:18:37] Speaker 03: If they do, I want you to show it to me. [00:18:40] Speaker 00: There's two issues of waiver that go on. [00:18:43] Speaker 00: First, the waiver that occurs at the deposition is far different than what happens at when you're filing motion for summary judgment. [00:18:53] Speaker 00: In the deposition, you look at that independently. [00:18:55] Speaker 00: Is that... What did he waive? [00:18:58] Speaker 00: What did he waive? [00:18:59] Speaker 00: What product did he reveal? [00:19:03] Speaker 00: His ultimate conclusion that they were in compliance with their contract was necessarily and undeniably linked to his review of the COBC reports. [00:19:12] Speaker 00: They called him. [00:19:13] Speaker 00: They said, did you review the COBC reports? [00:19:18] Speaker 00: Why did you review them? [00:19:20] Speaker 00: He answered, I reviewed them with a specific purpose of determining whether a violation occurred. [00:19:26] Speaker 00: And then he was asked. [00:19:28] Speaker 00: Did you violate your COBC obligations? [00:19:32] Speaker 00: And he said, no. [00:19:33] Speaker 00: That wasn't the question. [00:19:35] Speaker 00: Yes, it was. [00:19:38] Speaker 00: The question is specifically, [00:19:43] Speaker 03: those have been thirty pages apart. [00:19:46] Speaker 00: No, on page 127, this is right where it is. [00:19:48] Speaker 03: Yeah, they asked him, there's a regulation that requires you to report fraud, et cetera, et cetera, et cetera. [00:19:55] Speaker 03: Did you follow it here? [00:19:57] Speaker 03: Yes. [00:19:58] Speaker 03: What is he supposed to say? [00:19:59] Speaker 03: No, I didn't follow the regulation. [00:20:02] Speaker 03: We never report fraud. [00:20:04] Speaker 00: These are not questions from me, so I'm not sure what he's supposed to say. [00:20:07] Speaker 00: But I can tell you this, [00:20:09] Speaker 00: He was specifically asked, why did you review these reports? [00:20:14] Speaker 00: And he said to make a determination. [00:20:16] Speaker 00: And then he was asked specifically what his ultimate determination was, and he gave it. [00:20:22] Speaker 00: His ultimate determination, necessarily and definitively, was based on his review of this. [00:20:28] Speaker 03: Okay, so how's that any different than the sergeant who says, I showed up at the scene, spoke to the officers, [00:20:34] Speaker 03: And I told them to arrest the defendant and let the other guy go. [00:20:37] Speaker 03: The difference, as far as whether that testimony is hearsay or not, the court says that that's not even offered for the truth. [00:20:53] Speaker 03: So why should I conclude that him testifying about, yeah, I did a report, all of a sudden injects the report into his testimony as if it's being submitted for the truth? [00:21:07] Speaker 00: Because White instructs that actual testimony from an attorney on the subject matter of the representation results in the application of the strict waiver doctrine. [00:21:17] Speaker 00: That's the answer. [00:21:19] Speaker 03: So if he testifies about the subject of the representation, so as soon as he started testifying that he conducted investigations, he's waived under White? [00:21:30] Speaker 01: I guess. [00:21:32] Speaker 01: That's really your answer? [00:21:33] Speaker 01: I didn't think that was your answer. [00:21:35] Speaker 00: If that's your answer, you're, you know. [00:21:38] Speaker 01: He got a problem if that's your only answer. [00:21:40] Speaker 00: No, when he gave his ultimate testimony. [00:21:42] Speaker 00: That's when the clearer definitive waiver occurs. [00:21:47] Speaker 00: What page is this ultimate testimony in the JA? [00:21:50] Speaker 00: He gives his ultimate testimony on 120 [00:21:59] Speaker 00: 132. [00:22:00] Speaker 00: Did KBR adhere to that contract clause? [00:22:04] Speaker 00: Answer, yes, we did. [00:22:05] Speaker 00: And again, on... Is that the way? [00:22:10] Speaker 00: That is a specific waiver, yes, because he's giving his ultimate conclusion. [00:22:16] Speaker 00: Right, because he's giving his ultimate conclusion that necessarily and definitively was based on his review of the COB report, because he also testified that he was the decision-maker-in-chief for KBR to make that determination, so you can't separate the two. [00:22:31] Speaker 00: And then he was specifically asked on 162, [00:22:34] Speaker 00: With respect to the matters that we have testified about and that are identified in the privilege log, which are the COBC reports, did KBR make a disclosure to the Department of Defense, Inspector General, that there was reasonable grounds to believe that a kickback had been paid or received? [00:22:51] Speaker 00: He answers, no. [00:22:52] Speaker 00: It was his specific duty. [00:22:54] Speaker 00: He was a vice president. [00:22:56] Speaker 03: So let me ask you this question. [00:22:59] Speaker 03: Is KBR allowed to have any [00:23:02] Speaker 03: uh... corporate representative testify did not commit fraud with respect to [00:23:13] Speaker 03: these allegations. [00:23:14] Speaker 00: Those are two separate issues. [00:23:16] Speaker 03: Answer that question. [00:23:17] Speaker 00: I will. [00:23:19] Speaker 00: If you get a witness who can testify who has not reviewed the COBC reports, of course, because they're not waiving it. [00:23:28] Speaker 03: So the witness who testifies without reviewing the investigation and says we didn't commit fraud, how are they competent to testify about it? [00:23:37] Speaker 00: Because they do what the 30 BC witness is supposed to do, is you go review all the facts and put everything together and provide your basis why that is true. [00:23:47] Speaker 03: Aren't the facts in the investigation? [00:23:49] Speaker 00: The facts of an investigation outside the privileged one. [00:23:53] Speaker 00: It's going to rely on the privileged one its way. [00:23:55] Speaker 03: So they have to do a new investigation to be competent to testify about it. [00:23:59] Speaker 03: They can't use the previous investigation. [00:24:03] Speaker 00: They can't use a witness based on that. [00:24:05] Speaker 00: because if that witness reviewed that report prior to testimony, I think you have a problem that they may have opened the door to require the production of the report just on that basis alone. [00:24:19] Speaker 00: But having the attorney who specifically had the legal obligation in the company to review the report made the determination and then have the [00:24:30] Speaker 00: KBR submit a material false representation to the district court on that very subject matter is such an extreme case of waiver that I believe that the standards can't be met. [00:24:45] Speaker 04: But the waiver did not occur when the decision was taken. [00:24:49] Speaker 04: No, it happened at the deposition itself. [00:24:55] Speaker 04: Absolutely. [00:24:59] Speaker 00: Right, I think that... The disavowal is... First, all the cases identify that you look at disavowal at the time the statement is made. [00:25:15] Speaker 00: And at the time the statement was made, KBR intended to use that testimony. [00:25:20] Speaker 00: They've scripted it. [00:25:23] Speaker 04: I don't know what they intended. [00:25:26] Speaker 04: It can't be based on it. [00:25:29] Speaker 04: there's no way to know what they intend to do. [00:25:31] Speaker 00: Well, no. [00:25:33] Speaker 04: What they look at is... They make a guess about if it's deposition that it's untimely or that it's ineffective for some others. [00:25:41] Speaker 00: I think there's two issues. [00:25:42] Speaker 00: One, who's the party who injected the waiver issue? [00:25:48] Speaker 00: In this case, it was the deposition testimony of KBR's counsel that resulted in the waiver of the [00:25:58] Speaker 04: Now, that doesn't seem to me to be answering the question I thought I asked you. [00:26:02] Speaker 04: Is it your position that the disavowal was untimely or that it's ineffective or some other way? [00:26:08] Speaker 00: The disavowal was untimely. [00:26:12] Speaker 00: ineffective because the waiver had already occurred. [00:26:16] Speaker 04: How soon after the deposition did they make the decision? [00:26:24] Speaker 00: The time frame doesn't matter. [00:26:27] Speaker 00: You just said it was untimely. [00:26:29] Speaker 00: If it's untimely, then the time frame does matter. [00:26:32] Speaker 00: Then let me clarify. [00:26:35] Speaker 00: Once the waiver happens, once the words are said, [00:26:40] Speaker 00: You can't go back and tell the court reporter to erase them out of the transcript. [00:26:44] Speaker 00: It was untimely at the moment they were said, is what I was trying to say. [00:26:52] Speaker 00: That's addressed in your case, Your Honor. [00:26:56] Speaker 04: Either they can be disavowed or they can't. [00:26:58] Speaker 00: No, I think if you look at your case in Ideal Electric, what you had was a waiver of the privilege. [00:27:10] Speaker 00: And this court said, if you want to, we're going to apply a strict waiver test on implied waiver. [00:27:22] Speaker 00: And if you want to withdraw the information, you have to dismiss the claim in the entirety. [00:27:32] Speaker 00: And so there is, if you want to proceed, so either dismiss the claim or in the entirety, there is no disavow. [00:27:45] Speaker 00: Other, once the waiver occurs. [00:27:48] Speaker 03: If you waive as to some small, you know, marginally relevant fact, the only way you can disavow is to, you know, give up all your defenses if you're a defendant. [00:28:03] Speaker 03: That's what ideal electric stands for. [00:28:05] Speaker 00: No, because there's a different standard for when an attorney testifies than when a defendant testifies. [00:28:09] Speaker 00: And white makes that very clear. [00:28:13] Speaker 00: And you can go up and say, you know, I'm innocent. [00:28:17] Speaker 00: That's not a waiver. [00:28:19] Speaker 00: What is a waiver is when you say, I'm innocent because I'm the attorney. [00:28:24] Speaker 00: I conducted an investigation. [00:28:27] Speaker 00: I conducted a review. [00:28:28] Speaker 00: I read it. [00:28:29] Speaker 00: I studied it. [00:28:30] Speaker 00: And I made an informed decision that there was no waiver. [00:28:33] Speaker 00: That's waiver. [00:28:34] Speaker 04: But if you have more than one defense and the attorney client [00:28:39] Speaker 04: information, protected information goes to only one defense, why would you have to disavow your entire defense as opposed to simply at most disavowing the defense as to which the attorney client is working? [00:28:52] Speaker 00: Because it's issue injection. [00:28:55] Speaker 00: You have to, and the issue that was injected was whether kickbacks were paid, essentially. [00:29:03] Speaker 00: So that's the subject matter of the testimony, that there was no well-founded evidence that kickbacks were paid. [00:29:16] Speaker 00: And as a result of that, we are entitled to an inference [00:29:21] Speaker 00: if they want to withdraw that testimony and they want to not engage in waiver, then we're entitled to that inference that kickbacks were paid and we move over to the damages issue. [00:29:37] Speaker 03: So if a document is inadvertently produced that's covered by the attorney-client privilege to claw it back, disavow [00:29:50] Speaker 03: under under your theory that has to be done immediately or it's lost forever. [00:29:56] Speaker 00: Um, my recollection of the case on this circuit is if you inadvertently disclosed your tough luck. [00:30:03] Speaker 03: Okay, so you wave all your defenses. [00:30:08] Speaker 00: You look at [00:30:10] Speaker 00: What is the subject matter of the waiver? [00:30:12] Speaker 00: And that is what you have waived. [00:30:14] Speaker 00: The subject matter of this waiver was kicked back. [00:30:17] Speaker 00: That's what they waived. [00:30:18] Speaker 00: They can't now come back and say, we didn't get the subject matter. [00:30:22] Speaker 03: Was it the subject matter of this waiver whether he made a determination to make a report based on reviewing a report, to make a report of fraud based on reviewing the investigation? [00:30:36] Speaker 00: Uh, no. [00:30:38] Speaker 00: The subject matter of his testimony was that we complied and there was no violation. [00:30:45] Speaker 00: That's the subject matter of his testimony. [00:30:46] Speaker 00: That's his ultimate conclusion that he gave. [00:30:48] Speaker 00: They did not violate the contract. [00:30:50] Speaker 03: You have... And who, again, can testify to that, competently? [00:30:56] Speaker 00: Who? [00:30:57] Speaker 00: The other 30 B-6 witnesses that we've since deposed. [00:31:02] Speaker 00: They didn't review the COBC report. [00:31:05] Speaker 03: And you would say that they would be adequately prepared to testify under 30B6 without reviewing the COBC report. [00:31:13] Speaker 03: They could just come in and say, best of my knowledge, from what I've heard, we complied with everything. [00:31:23] Speaker 03: And if we knew about fraud, we reported it. [00:31:27] Speaker 03: They could say that based on third-hand information. [00:31:33] Speaker 00: The question is, [00:31:35] Speaker 00: waiver and what you're asking now is the question is what I just asked you okay if a new if a fresh new witness is appearing for the first time [00:31:44] Speaker 00: And I asked them if they reviewed the COBC report in preparation for their deposition, I would ask the district court, we'd like to review the report so I can effectively cross to the end of the witness. [00:31:59] Speaker 00: I don't know what the answer to that is because that issue is not before us. [00:32:02] Speaker 00: But that would be my first objection and request to the district court. [00:32:07] Speaker 00: I think that from my general recollection, [00:32:12] Speaker 00: You use a document to prepare the witness. [00:32:16] Speaker 00: I think the other side is entitled to that document. [00:32:19] Speaker 00: I think that, you know, the attorneys are entitled to use that document to prepare the witness. [00:32:25] Speaker 00: You're just not entitled to show that document to the witness during the preparation. [00:32:30] Speaker 00: And there's a big difference here. [00:32:32] Speaker 00: One's being used for work product and attorney client privilege, and the other is being used for a testimonial purpose. [00:32:39] Speaker 03: So it would be fine if Mr. Heinrich [00:32:41] Speaker 03: testify. [00:32:43] Speaker 03: I never actually read the report. [00:32:45] Speaker 03: I just had somebody dictate it to me and I used it to prepare and I'm convinced after having that been told to me that there was nothing in the investigation that showed that there was any fraud. [00:33:04] Speaker 03: That would be fine. [00:33:05] Speaker 00: If Heinrich testified that he never reviewed the report, yes, it'd be fine. [00:33:10] Speaker 00: However, on page 11, he admits to having reviewed the original reports back in 2003 and 2004. [00:33:16] Speaker 00: So there's no question that he reviewed them. [00:33:18] Speaker 00: And he admits in his deposition that he reviewed them again. [00:33:21] Speaker 03: So it all turns on the fact that he reviewed them personally rather than somebody giving him a summary? [00:33:30] Speaker 00: Someone just preparing him for his deposition. [00:33:33] Speaker 00: Yes, because he was the decision maker for KBR. [00:33:35] Speaker 00: He was their chief legal counsel on the issue, and he testified on the core requirement that he... So KBR's mistake here is that they produced somebody who had first-hand knowledge of the investigation. [00:33:49] Speaker 03: They should have produced somebody with second or third-hand knowledge. [00:33:52] Speaker 00: Absolutely. [00:33:53] Speaker 00: That was a critical mistake. [00:33:55] Speaker 00: And they elicited explicit testimony. [00:33:57] Speaker 03: And that's the way 30b6 depositions are supposed to happen? [00:34:01] Speaker 03: You produce the least knowledgeable person to testify about the topic? [00:34:06] Speaker 00: No, you produce the person the corporation wants to produce. [00:34:12] Speaker 00: And understand that all of these, the entire waiver issue and all these questions have nothing to do with anything that [00:34:22] Speaker 00: Mr. Barco did. [00:34:24] Speaker 00: We rested our questions. [00:34:26] Speaker 00: We didn't have a case to move forward on at that point. [00:34:31] Speaker 00: Cave Yard Council stood up and, with a prepared set of questions, delved into his prior review of the COBO, the reports, looked at the [00:34:47] Speaker 00: and asked him did he make a prior determination, and he said yes, and asked him what his ultimate conclusion is as of today, and he gave that one as well. [00:34:58] Speaker 00: He testified on the core, on the core substance of the privileged material. [00:35:05] Speaker 00: Not on a, not on a tangential issue, but on the core, on the whole body of the entire confidential communication [00:35:16] Speaker 00: The beginning to end, in order for him to give his ultimate conclusion, it was based on the entire document. [00:35:24] Speaker 00: And because he had first-hand knowledge, acknowledged reading it beforehand, acknowledged reading it in preparation of his deposition, and acknowledged... Tell me again why you noticed the deposition, this deposition topic. [00:35:38] Speaker 03: What was your purpose? [00:35:40] Speaker 00: We wanted to... [00:35:43] Speaker 00: One, if someone had knowledge of the investigative report, we didn't have the names of the people who had even been investigated. [00:35:52] Speaker 00: We didn't have the subject matter. [00:35:53] Speaker 00: This was just a preliminary deposition to try to get the first base. [00:35:57] Speaker 00: If we had gotten to that, we would have moved on to substantive depositions of individuals. [00:36:03] Speaker 00: But we were stymied and the judge noted that in his decisions that our discovery efforts were stymied. [00:36:12] Speaker 03: So you noticed this topic so that they would tell you what they investigated and who they talked to? [00:36:18] Speaker 00: That's what you expected to get out of this to get as much unprivileged information as possibly could. [00:36:24] Speaker 00: That's that's the purpose of that. [00:36:25] Speaker 00: Yeah, that was the purpose of that question. [00:36:28] Speaker 00: Not to get privileged. [00:36:29] Speaker 00: We knew going in. [00:36:30] Speaker 00: I mean, there was a lot of dialogue between council. [00:36:32] Speaker 00: Let me think. [00:36:33] Speaker 03: Well, what do you think was unprivileged information that you would be entitled to about the investigation? [00:36:40] Speaker 00: At that point in time, we understood that the information individual people knew about [00:36:53] Speaker 00: about the subject that were about the contract, who had read the contract documents, but instead they produced a witness who had no first-hand knowledge other than his knowledge of the COBC report. [00:37:11] Speaker 03: So he couldn't sit and say, well, I... You noticed that the topic, the topic that you noticed, I think it was Q, [00:37:19] Speaker 03: reads as follows. [00:37:21] Speaker 03: Any investigation or inquiry, internal or external, formal or informal, of Mr. Gerlach, DNP, or any of the matters identified in topics A through O above, the scope shall include knowledge of everyone who participated in the investigation. [00:37:40] Speaker 03: That was the topic that I presume you or somebody working with you drafted. [00:37:45] Speaker 03: So tell me what non-privileged information you believe that you were entitled to seek based on that topic that you propounded. [00:37:58] Speaker 00: One, there was another investigation conducted by Penny Battles. [00:38:02] Speaker 00: as part of the human resources that we knew about, that there was documents produced in Discovery, and I was under the impression that that was part of a formal investigation outside the COBC. [00:38:17] Speaker 00: And so that was an important area of inquiry and trying to figure out... So when you said any investigation or inquiry, you meant something other than the COBC investigations? [00:38:30] Speaker 00: No, I meant I wanted someone to be produced with knowledge of all the investigations that... Including the COBC investigation, right? [00:38:42] Speaker 03: uh... yes since it's any investigation exactly so so we need propounded uh... an interrogatory seeking information about the c o b c investigation that it was done by council [00:38:59] Speaker 00: It was broad enough to include the COB investigation, but it was to include all investigations. [00:39:05] Speaker 00: And at that point in time, a determination of whether the COB investigation was privileged or not had not been determined. [00:39:12] Speaker 01: So it's... So your theory is that at that point, the defense counsel should have asserted the privilege at that point? [00:39:19] Speaker 00: Exactly, and they did to all our questions, and we were shut down. [00:39:23] Speaker 00: If defense counsel sat down and never asked a question, we wouldn't be here today. [00:39:27] Speaker 00: So the only reason we're here today is because defense counsel opened the door, not only opened the door, uh, elicited explicit testimony from the attorney that they intended to use in their summary judgment. [00:39:37] Speaker 04: I wonder about the explicit attitude you're using there, attitude you often speak, but what you're attached to is [00:39:47] Speaker 04: relative case, we conducted an investigation and we didn't report anything. [00:39:52] Speaker 04: Did he really say anything more than that? [00:39:53] Speaker 00: Yes, he said why the investigation was conducted and that he knew that. [00:39:58] Speaker 04: I mean, that's not private. [00:40:00] Speaker 00: That he made a determination, that he made a determination that they didn't have to make a report. [00:40:08] Speaker 00: And that determination was necessary. [00:40:11] Speaker 04: That goes back to what I first asked you, that he said, [00:40:17] Speaker 00: I made the determination that we did not have to report it. [00:40:22] Speaker 00: He said, me. [00:40:23] Speaker 04: So that's a waiver. [00:40:25] Speaker 04: The attorney's not in prison. [00:40:27] Speaker 00: When the attorney says, I made a determination on behalf of the company that we didn't have to investigate it, that's a waiver. [00:40:36] Speaker 03: And remember- At the same time that he testifies, we never make those reports themselves. [00:40:43] Speaker 03: available to the government because they're privileged. [00:40:50] Speaker 03: Right, because that's part of his testimony, too. [00:40:53] Speaker 00: Yes. [00:40:54] Speaker 00: And that's why he should not be talked about the COBC report. [00:40:58] Speaker 00: Because in other words, when they talk to the government, they don't mention the COBC. [00:41:02] Speaker 00: They say, we want to make a disclosure. [00:41:05] Speaker 00: Here, they said the COBC report. [00:41:07] Speaker 03: Oh, so the government didn't know that they had a COBC program, that they had a compliance program? [00:41:12] Speaker 00: Government did not know they conducted a COBC investigation with respect to the contracts in this case. [00:41:20] Speaker 00: even though that they did file a subpoena on that. [00:41:25] Speaker 00: But the government never knew. [00:41:27] Speaker 00: And I think White gets pretty clear and says actual testimony from an attorney, which is unquestionably what we have here, on the subject matter of the representation [00:41:43] Speaker 00: His explicit subject matter of representation was whether or not KBR was required to make a disclosure under the anti-kickback statute, and he testified on that specific subject matter and gave his ultimate conclusion on that subject matter. [00:42:01] Speaker 00: I don't, you know, what you're saying is the only thing he didn't give were the facts that we wanted originally. [00:42:09] Speaker 00: The only thing we wanted in the deposition was someone who could actually give us the underlying facts. [00:42:15] Speaker 00: So they produced a witness incapable of giving us the underlying facts, which they claimed attorney-client privilege. [00:42:21] Speaker 00: And the only thing they give is their privileged communication from this witness to the company saying, I've reviewed all the facts and there's no reason to report. [00:42:39] Speaker 01: No more questions. [00:42:39] Speaker 01: Let me ask you about the disavowal. [00:42:45] Speaker 01: I understand your point about determining at the moment that it happened, but just from a policy point of view, if, as I understand their disavowal, if the disavowal means that the defendant can't rely on these reports or the attorney's conclusions about what the report said or the fact that they would normally report to the government if they found a problem, but in this case they didn't, if they can't rely on any of that, [00:43:16] Speaker 01: What's the harm to you? [00:43:22] Speaker 01: Doesn't that put you back where you would have been before, according to you, the privilege was abused? [00:43:28] Speaker 00: First on the strict waiver standard. [00:43:31] Speaker 01: Don't give me the strict thing. [00:43:32] Speaker 01: I understand that. [00:43:33] Speaker 01: I know what the cases say. [00:43:34] Speaker 01: I'm just asking from a policy point of view to get this right. [00:43:40] Speaker 01: What's the harm [00:43:42] Speaker 01: to you if this avowal puts you back to where you would have been prior to this deposition? [00:43:52] Speaker 00: Because the first line of attack during our case in Chief would be KBR. [00:44:00] Speaker 00: Did you submit a false representation on your COBC investigation because you wanted to mislead this jury? [00:44:12] Speaker 00: Let me rephrase that. [00:44:18] Speaker 00: A key area of cross-examination is going to be that KBR submitted a material false representation in an attempt [00:44:29] Speaker 00: to mislead the facts concerning whether true evidence existed as to whether kickbacks have been paid. [00:44:37] Speaker 00: And we would ask the jury to draw an inference from that that they lacked credibility. [00:44:45] Speaker 00: And in order to adequately cover that round of inquiry, we need to know, and if the report [00:44:55] Speaker 00: is produced, we can go to, you know, the specific examples and say, look, this one, X, Y, and Z. That's not the question, though. [00:45:05] Speaker 03: You're answering the question of how our case would be better if we got the report. [00:45:10] Speaker 03: The question was, if the waiver was disavowed, how are you any worse off than you were then [00:45:20] Speaker 01: Then if it had never happened, then he and Heinrich had never testified to any of this. [00:45:28] Speaker 00: We're worse off because there's specific factual inferences that we can draw from his testimony. [00:45:35] Speaker 01: Well, no, no, no. [00:45:36] Speaker 01: You have to assume, my question assumes that he never testified about this. [00:45:41] Speaker 00: If he never testified, there would be no waiver. [00:45:45] Speaker 00: However, he did testify. [00:45:48] Speaker 00: It's the fact that he testified that results in the waiver. [00:45:54] Speaker 01: You might have said to me, well look, you've got to do this. [00:45:57] Speaker 01: You can't allow [00:45:59] Speaker 01: disavow because that allows defendants to try this. [00:46:05] Speaker 01: And if they fail, they can then disavow. [00:46:08] Speaker 01: And if you really want to protect the privilege, you need to say, look, if you try something like this, you lose the privilege. [00:46:14] Speaker 01: OK, I could have understood that. [00:46:16] Speaker 01: I think that is a P argument we make in our brief. [00:46:20] Speaker 01: So it's an incentive, right? [00:46:26] Speaker 00: Well, that's the whole, you know, when I keep on raising strict waiver, what I'm really referring to is this court's mindset of the, of the, not wanting to allow to use this privileged process as a way to strict waivers. [00:46:45] Speaker 01: I got you, but no, but this is never, this particular situation. [00:46:49] Speaker 01: where, let's assume you're right, that there was a complete abuse of the privilege here. [00:46:55] Speaker 01: Let's just assume for purposes of my question, total abuse of the privilege, completely inconsistent with all of our case law. [00:47:03] Speaker 01: My simple question is, what's the harm, setting aside the incentive arguments you and I were just talking about, trying to take away any incentive to misuse of privilege? [00:47:16] Speaker 01: If they disavow it and can't make this argument at all, what's the harm to the plan? [00:47:25] Speaker 01: Other than the fact that you may have lost a great opportunity to cross-examine them and talk to the jury about this document. [00:47:35] Speaker 01: If you go back to where you were at the beginning, prior to the testimony, what's the harm? [00:47:41] Speaker 00: In every waiver situation, if you go back to the beginning, before the waiver occurred, there is no harm. [00:47:46] Speaker 00: And so you can't have a blanket disavow standard. [00:47:50] Speaker 00: What you look at is Sims. [00:47:52] Speaker 00: The leading case, you're looking at disavow. [00:47:54] Speaker 00: And there was five factors they looked at. [00:47:56] Speaker 00: Sims never injected the issue of his emotional state. [00:48:00] Speaker 00: They injected the issue of Heinrich's testimony. [00:48:05] Speaker 00: The risk that some independent decision maker will accept the privilege holder's representations. [00:48:10] Speaker 00: They got a false inference in front of the judge. [00:48:15] Speaker 00: The third factor was the testimony given in the absence of counsel. [00:48:19] Speaker 00: No, the testimony was given by counsel in this case. [00:48:22] Speaker 00: The fourth was the issue giving rise to the waiver introduced by the non-waving party. [00:48:28] Speaker 00: Yes, KBR, after we were shut down with our questioning, KBR introduced the evidence. [00:48:33] Speaker 00: And fifth, the Waving Party attempted to use a privilege as both a sword and a shield. [00:48:38] Speaker 00: And the answer again is yes. [00:48:39] Speaker 00: So of the five factors that are the core [00:48:46] Speaker 00: evaluation under sins, every last one of them goes in our favor. [00:48:51] Speaker 00: So the question is, did the court abuse its discretion in deciding that disavowal was not appropriate in this case? [00:48:58] Speaker 00: And we say no. [00:48:59] Speaker 04: Let me just ask you, and I know you've been asked the same thing over and over, but you're not doing a real good job of directly answering, so I don't feel too guilty. [00:49:06] Speaker 04: What is your best case from this circuit for this strict waiver proposition? [00:49:13] Speaker 00: The strict waiver is every case... No, no, no, no, no. [00:49:19] Speaker 00: It can't be every case if I'm asking you for your best case. [00:49:24] Speaker 00: You're not really going to do a good job of directly answering what we're asking. [00:49:27] Speaker 00: Okay, the best case is white and ideal election. [00:49:31] Speaker 00: What's the language from? [00:49:33] Speaker 00: white white says actual testimony from an attorney uh... on the subject matter of uh... the representation that's not a complete no no i'm sure it has that phrase in there actual testimony from an attorney give me a complete sentence i'd have to pull out the case and read it it's in our brief i hope you've read it i've read it multiple times [00:49:57] Speaker 00: And in my more lengthy notes, I have the full site. [00:50:03] Speaker 04: I don't think the phrase strict waiver appears in what it does. [00:50:08] Speaker 00: No, it cites to Perryman and Rasiel Chase. [00:50:13] Speaker 00: There's a case in this circuit for strict waiver. [00:50:18] Speaker 00: There is [00:50:19] Speaker 00: But you look at ideal electric, and ideal electric applies, there's only one line of holdings in this circuit. [00:50:30] Speaker 00: If a waiver occurs, it's final. [00:50:33] Speaker 00: There is not a single decision that says if a waiver is identified that it's not final. [00:50:40] Speaker 00: There's no- Do we have one that expresses that you can't disavow? [00:50:44] Speaker 00: No. [00:50:45] Speaker 00: There's no decision that says that you can't expressly disavow. [00:50:49] Speaker 03: Why don't I read the sentence, the whole sentence that you were paraphrasing from White? [00:50:58] Speaker 03: It's at 887F2 at page 271. [00:51:09] Speaker 03: says, however, pretrial disclosures have been found to waive the privilege only where a defendant disclosed the substance of privilege documents or permitted actual testimony by his attorney before an investigative body. [00:51:28] Speaker 00: Is that the sentence you were paraphrasing? [00:51:31] Speaker 00: And the second sentence after that? [00:51:33] Speaker 03: Here in contrast, White never released any substantive information about his attorney's review of the arrangement with Finati and did not refer to any particular instance of review. [00:51:44] Speaker 00: Right. [00:51:44] Speaker 00: So the two specific things are actual testimony from the attorney, not refer to any particular instance of review. [00:51:52] Speaker 00: You've got actual testimony from the attorney in this case, and the testimony is specifically testified about the particular instance of review. [00:52:02] Speaker 03: It's not just actual testimony. [00:52:04] Speaker 03: In that case, they're talking about by an attorney before the investigative body where he's he's disclosing the substance. [00:52:13] Speaker 00: This is an investigative member. [00:52:15] Speaker 00: It's criminal, and it's an early on investigation. [00:52:19] Speaker 00: So this is much closer to the trial and phase. [00:52:25] Speaker 00: So it's even much more imperative in this case. [00:52:29] Speaker 00: And this is in a deposition. [00:52:31] Speaker 00: There wasn't even a transcript of the other. [00:52:34] Speaker 00: of the other event. [00:52:36] Speaker 00: So this is much more on an investigation. [00:52:42] Speaker 00: And we were conducting an investigation. [00:52:45] Speaker 00: And we do sit in the shoes of the government. [00:52:47] Speaker 00: And we were conducting that investigation on behalf of the government as well. [00:52:52] Speaker 00: So there was an investigative nature associated with the False Claims Act. [00:52:57] Speaker 00: to begin with. [00:53:00] Speaker 00: And there's no doubt that he referred to a particular instance of review and testified that it was his responsibility within the company to provide the ultimate answer as to whether a report had to be made. [00:53:16] Speaker 00: In this case, not only do you have the testimony of the [00:53:20] Speaker 00: of what was down to the witness itself, Heinrich, who is... Let me ask you a question. [00:53:33] Speaker 03: Here's my concern. [00:53:37] Speaker 03: Perhaps my former life as somebody who used to do these types of investigations influences my concern. [00:53:49] Speaker 03: If you're going to have a compliance program within a company, somebody has to administer it. [00:53:58] Speaker 03: Most companies have their lawyers administer it. [00:54:04] Speaker 03: If the lawyers administer the program and oversee the investigations, I think you would concede, based on the prior mandamus case and Upjohn, that that's work product privilege. [00:54:19] Speaker 03: So if the company that maintains a compliance program has to post somebody to testify the 30B6 deposition or at trial about the fact that they have a compliance program in that [00:54:37] Speaker 03: pursuant to that compliance program, they investigate some things, they don't investigate other things, and based on those investigations, they report some things to the government and other things that they don't report. [00:54:49] Speaker 03: Who can testify about it other than the lawyer? [00:54:54] Speaker 00: Any other employee of the company, a 32-B6 witness, can testify about anything. [00:55:00] Speaker 00: I mean, you don't have that firsthand knowledge to be a 36-year-old. [00:55:03] Speaker 03: Okay, so if anybody else testifies about it, then they review the reports, et cetera, then there's no waiver of a privilege? [00:55:13] Speaker 03: No. [00:55:13] Speaker 00: Well, let's look at it this way. [00:55:18] Speaker 00: In white, if white testified, I read a report my lawyer [00:55:24] Speaker 00: prepared, and it exonerated me of wrongdoing. [00:55:28] Speaker 00: He waived the privilege, right? [00:55:30] Speaker 00: And so if you get KBR's attorney to say, I read the report that was produced for me intentionally for my purpose to decide whether a violation has occurred, and based on that report, I've determined there was no violation, that's waived the privilege. [00:55:47] Speaker 01: So the distinction in your mind then is Judge Wilkins' specific question to you was that if a company has a compliance program that's managed by its attorney, and that attorney testifies that we have a compliance program, we report in some cases and not in other cases, that wouldn't be a waiver, right? [00:56:12] Speaker 00: under, there's a whole line of wave injection. [00:56:16] Speaker 00: It would be a waiver under the Cox wave injection. [00:56:20] Speaker 01: I thought your point here was that they went beyond that and that they testified, he testified not just that they had a program, but that they report instances to the government where they find a violation. [00:56:34] Speaker 01: They don't report when they find no violation. [00:56:37] Speaker 01: Here they did a study and they didn't report. [00:56:39] Speaker 01: I thought that's what your point was. [00:56:41] Speaker 00: That is my point. [00:56:42] Speaker 00: Yes, absolutely. [00:56:45] Speaker 00: Because that's the core, and he makes that saying, referencing back to the privilege law. [00:56:50] Speaker 01: So you then, the key point here is that the lawyer stated [00:56:57] Speaker 01: responded to, stated in his deposition that after doing an investigation he found no violation and then they moved for summary judgment based on that, right? [00:57:10] Speaker 01: Correct. [00:57:10] Speaker 01: That's your case. [00:57:11] Speaker 01: That is our case. [00:57:13] Speaker 01: That's our best case. [00:57:16] Speaker 04: I'm sorry to prolong, but this is redundant. [00:57:21] Speaker 04: Can you give me one sentence that explains what you mean by quickly? [00:57:25] Speaker 00: What do you mean by what? [00:57:26] Speaker 04: Strict waiver. [00:57:27] Speaker 04: You keep telling us there's a strict waiver. [00:57:29] Speaker 04: You can't tell me where it is in the circuit. [00:57:33] Speaker 04: Give me one sentence that tells me what the doctor needs. [00:57:37] Speaker 00: Strict waiver is used in Levin. [00:57:44] Speaker 00: What you have is Biddecker talks about express waiver. [00:57:48] Speaker 00: Are you giving me any work off for telling me what strict waiver is in your phrase? [00:57:51] Speaker 00: Yes, and strict waiver in my phrase is in order to protect the crown jewels, if you open any little door that gives an inkling of what's behind in the safe, you've waived. [00:58:06] Speaker 00: That's strict waiver. [00:58:09] Speaker 01: Thank you. [00:58:11] Speaker 01: Thank you. [00:58:13] Speaker 01: So I think Mr. Elwin is out of time. [00:58:16] Speaker 01: You can have three minutes if you'd like it. [00:58:28] Speaker 05: I think one point came out between the questioning by Judge Wilkins and Sentel and the comment by my brother, Mr. Cohn, where he asserted that we injected the issue. [00:58:40] Speaker 05: And I think it's important to keep in mind that each of the statements that Mr. Heinrich made were nonprivileged statements. [00:58:48] Speaker 05: And that, indeed, each of them was about a fact that the other side elicited first. [00:58:52] Speaker 05: I'll give you the record sites. [00:58:53] Speaker 05: It's PETF, page A131. [00:58:56] Speaker 05: on page A-235, those are just the ones specifically talking about whether a report was made to the government afterwards. [00:59:02] Speaker 05: And to clarify, Mr. Heinrich never testified that I did the examination here and I concluded there was nothing, so that's what we reported. [00:59:09] Speaker 05: All he said was, you know, we had an investigation. [00:59:13] Speaker 05: No report was made. [00:59:14] Speaker 01: But he did testify that under company practice, when they do an investigation and they find a problem, they report it. [00:59:21] Speaker 01: And when they don't find a problem, they don't. [00:59:23] Speaker 01: And in this case, they didn't. [00:59:25] Speaker 05: uh... and those two facts were separated by thirty pages the first fact that they were put together in your motion for summary judgment in your opposition to work they were put together well they were put together in opposition in order to make the point that even when we find something we don't turn over these documents we don't we didn't try to make any sort of inference there about what the conclusion is but in any event i think the important thing to remember out of all of this is that these are awfully fine points to enforce in a deposition [00:59:55] Speaker 05: that, you know, if somebody said, aha, he could have gone up to this point without waiving it, but because he asked that one additional question, and the way he asked that that was a waiver. [01:00:04] Speaker 05: And that has never been held before, and that is why there's always been the principle that you can disavow something when somebody points it out. [01:00:10] Speaker 05: It's not, you don't have to disavow it at the moment you say it. [01:00:12] Speaker 05: You can disavow it when somebody else points it out. [01:00:14] Speaker 01: But in this case, his call was it was used in the later motions. [01:00:17] Speaker 05: Well, again, I disagree that it was used in the opposition to the motion to compel. [01:00:22] Speaker 05: All we were saying there was that even when we have something to disclose, we don't turn over these documents because they're privileged. [01:00:30] Speaker 05: And it was, again, only used in the introduction in a footnote. [01:00:35] Speaker 05: I would hate to stand up here and rely on something that I only raised in the introduction in a footnote. [01:00:41] Speaker 05: But I think that this shows the kind of harm of the [01:00:45] Speaker 05: labor theory because we are here a year later still arguing about labor whereas under the general principle that you can disavow this case would have ended on February 20th 2014 which is the day when we said we're not trying to draw any inference from the COBC documents and you can just you know forget about that. [01:01:06] Speaker 05: And I think with that, I will wrap it up except to say that it was the Spahn treatise that says that this is the most dangerous principle to add issue waiver for the reason we outlined here. [01:01:17] Speaker 05: Which treatise? [01:01:19] Speaker 05: Spahn, S-P-A-H-N, which refers to it as the most dangerous privilege principle because [01:01:24] Speaker 05: it's not always that clear when you're about to step over. [01:01:27] Speaker 05: And it is unsettling to the law, as pointed out by Amiti, that we have both a withdrawal of the traditional rule that you can disavow and the idea, as pointed out in the County of Erie and the Sims case and the Gardiner case, that depositions aren't really a place where a waiver was made. [01:01:44] Speaker 05: As the Sims case said, deposition, quote, deposition testimony in a civil action might never come to the attention of the decision maker, unquote, which is why it doesn't result in a waiver. [01:01:54] Speaker 05: And if there are no further questions, thank you. [01:01:56] Speaker 01: Okay, thank you both. [01:01:58] Speaker 01: Case is submitted.