It is “fairly clear” that, in a False Claims Act case, the common–interest doctrine protects the sharing of privileged information between the government and relator after the government intervenes. What is “less than clear” is whether the doctrine protects privilege-sharing prior to intervention.
The Minnesota federal court faced this pre-intervention privilege issue. It held that the government and relator failed to prove a common interest prior to the relator’s § 3730(b)(2) notice to the USAO of the filing of a complaint. United States v. Cameron-Ehlen Group, Inc., 2019 WL 6875354 (D. Minn. Dec. 17, 2019). You may read the Court’s initial opinion here, and its final decision here.
A whistleblower—and later the federal government—claimed that Minnesota-based Precision Lens induced physicians to purchase its intraocular lens “through expensive trips and other emoluments.” Precision Lens disputes the claims, as you can discern from this StarTribune article.
Timing is Everything
On April 25, 2013, the whistleblower-relator emailed an FBI agent informing her that “he had retained a law firm for a potential qui tam action.” The FBI agent responded that
The year 2019 produced several thought-provoking privilege issues for our consumption. And it saw the publication of my 300th post.
The Trump Administration again asserted privilege protections, including one instance of protecting Obama-era information. The insurance industry saw varied privilege concerns arise, and in-house lawyers again saw the good—and bad—of privilege decisions.
Many practical issues arose for us everyday lawyers. These range from 502(a) subject-matter waiver, pre-deposition review of privileged documents, using client’s internal employees as expert witnesses, and privilege issues when lawyers represent the company and its employees.
Let’s review what was an interesting year.
For my 300th post, I discussed an ethical and privilege quandary–whether a company’s lawyers must personally represent the employees to prevent the discovery of their communications. And does a conflict of interest arise? Dive into this discussion by reading Privilege, Ethics, and Company Counsel’s Representation of Employees.
In one of my most-read posts, I discussed Judge Steger’s opinion that breaks down the work-product protections for witness statements. Witness Statements and Work Product—Is It Deceptively Simple?
Several courts addressed privilege issues that arise in internal investigations.
Risky and uncertain privilege and work-product concerns arise when a company designates an in-house attorney to serve as a FRCP 30(b)(6) deposition witness. A decision from the ND ILL illustrates the perils.
The court ruled that a company must produce privileged materials that its in-house counsel reviewed while preparing for her deposition—simply because she used them to refresh her recollection and for the purpose of testifying. Baxter Int’l, Inc. v. Becton, Dickinson & Co., 2019 WL 6258490 (N.D. Ill. Nov. 22, 2019). You may read the decision here.
Becton Dickinson (BD) designated one of its in-house lawyers as its corporate witness for certain topics that Baxter Int’l identified in a FRCP 30(b)(6) deposition notice. To prepare for the deposition, she met with BD’s outside counsel and reviewed documents that included an internal patent-advice memo and a legal-advice memo from outside counsel.
In other words, she reviewed privileged materials that BD had—properly—not disclosed.
At her deposition, the in-house attorney testified that she reviewed the privileged documents to “refresh her recollection.” While the deposition transcript is under seal, I suspect that the questioning lawyer used that phrase for a reason. But no matter, BD did not dispute that the lawyer’s review refreshed her memory.
But why would a private review of privileged information waive the privilege?