Sending the Privilege Away: Attorney-Client E-Mails in the Corporate Setting

In a pending False Claims Act (“FCA”) case involving allegations of noncompliance with the federal physician self-referral law (the “Stark Law”), 42 U.S.C. § 1395nn, the United States District Court for the Middle District of Florida has issued a recent order denying the protection of attorney-client privilege. Without an in-depth analysis of the work-product doctrine, the Court found that no attorney-client or work product protection existed over:

- E-Mails Involving In-House Counsel and the Finance Department: Finding that, because the content of the e-mails indicated that Halifax was about to be engaged in fraudulent conduct related to making certain payments to oncologists in contravention of the Stark Law, these communications were subject to the crime-fraud exception and were not protected;

- E-Mails Where an In-House Attorney Was Only Copied: Finding that, because in-house counsel was not in the “to” or “from” line, e-mail communications were not privileged (regardless of whether they were stamped with any privilege designations) but rather consisted of status updates or business discussions that merely were shared with an attorney;

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