Federal Court In Georgia Orders Health Care Provider To Produce Privileged Documents In False Claims Act Action

Last month, a federal district court in Georgia ordered Columbus Regional Healthcare System to turn over communications protected by the attorney-client privilege in a decision that could have a chilling effect on requests for legal advice, if misunderstood. In U.S. ex rel. Barker v. Columbus Regional Healthcare System, Inc., No. 4:12-cv-108 (CDL), 2014 WL 4287744 (M.D. Ga. Aug. 29, 2014), the court ruled that defendant Columbus Regional impliedly waived the attorney-client privilege with respect to past communications with counsel about the legality of its conduct under the False Claims Act (FCA), Stark Law, and Anti-Kickback Statute, merely by pleading good faith in its answer to the complaint.

Overview of the Attorney-Client Privilege

The attorney-client privilege is the oldest privilege recognized by common law to protect confidential communications. As the US Supreme Court explained in the landmark 1981 decision Upjohn Co. v. United States, "[i]ts purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by...