In Re Columbia/Hca Healthcare Corporation Billing Practices Litigation

293 F.3d 289 (2002)

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Nature of the Case

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Facts

The Department of Justice began investigating D for possible Medicare and Medicaid fraud. D conducted several internal audits, and when DOJ attempted to obtain the audits, D rebuffed the request based on attorney-client privilege and the work product doctrine. A change in corporate control led to negotiations about a possible settlement of the fraud investigation. D agreed to produce some of the Coding Audits, and related documents and DOJ agreed that certain stringent confidentiality provisions would govern its obtaining of the documents. The agreement provided that: the disclosure of any report, document, or information by one party to the other does not constitute a waiver of any applicable privilege or claim under the work product doctrine. Both parties to the agreement reserve the right to contest the assertion of any privilege by the other party to the agreement, but will not argue that the disclosing party, by virtue of the disclosures it makes pursuant to this agreement, has waived any applicable privilege or work product doctrine claim. The settlement required D to pay an $840,000,000 fine. Private insurance companies and private individuals undertook to evaluate the billing they received from D. Everyone sued, and the suit was consolidated. Ps contend that D overbilled them for various services. Ps seek the recovery of excess sums. Ps sought an order compelling D to produce the Coding Audits. Ps allege that D waived the protections of any privileges by disclosing the materials to the Government. D refused on grounds of the work product doctrine and attorney-client privilege and that disclosing the information to the Government did not waive the protections of the two privileges. The court granted the motion to compel. The district court examined the approaches taken by other courts and found that 'voluntary disclosure of privileged materials to the government constitutes a waiver of the attorney-client privilege to all other adversaries.' D appealed.