Ground breaking case opening door to FCA Defendants’ Hidden Legal Advice. A noteworthy decision was handed down by a federal judge in Georgia on August 29, 2014 concerning a hospital’s waiver of the attorney client privilege. See Barker v. Columbus Reg’l Healthcare Sys., Case No. 4:12-cv-108 (CDL). There, the court held that a defendant who does nothing more than say it intends to show at trial that it believed its conduct was “lawful” waived the attorney client privilege for all records and communications relating to that issue. In other words, according to Barker, a defendant does not have to specifically and expressly assert the “reliance on advice of counsel” affirmative defense to trigger the waiver. The court reasoned that FCA defendants cannot use a claim of good faith intent as a sword to prevail at trial while simultaneously using the attorney client privilege as a shield to withhold contrary legal advice.
This ruling is a potential game changer for relators attempting to get discovery from FCA defendants, especially on the issue of a defendant’s “knowing” violation of the False Claims Act. If Barker case is followed widely, it will allow relators to obtain “all of the information at [a defendant’s] disposal when it made the decision to [act as it did],” including all communications to and from all attorneys, not just the selective memos the defendants may want relators and the Government to see.