Is DOJ Allowed to Share Privileged Documents with Whistleblowers in FCA Disputes?

Host Jonathan Porter welcomes Husch Blackwell partner Kip Randall back to the program to dig deeper into Omni Healthcare, Inc. et al v. MD Spine Solutions LLC et al., a False Claims Act litigation in which the defendant inadvertently waived privilege by sharing documents with the U.S. government, documents that later found their way to the whistleblower. The discussion begins with a brief summary of what information the Department of Justice can access through civil investigative demands (CIDs) and what is off limits to government investigators, including documents that fall under attorney-client privilege; however, the right to privilege can be waived. Such waivers can be intentional or accidental, with the latter circumstance occurring when document reviews in response to CID requests fail to catch privileged material. The conversation then explores how waivers—intentional or inadvertent—work in practice and how they impact the arc of litigation. Most prosecutors—most of the time—are extremely conscientious about coming into contact with potentially privileged information, but when such vigilance lapses, it can have serious implications for defending against FCA allegations, such as those seen in the MD Spine case. MD Spine highlights the limitations placed upon the government in its custodial role concerning those with whom the government can share privileged information. The discussion dives into the details of MD Spine and its implications for similarly situated FCA cases and wraps up with some practical takeaways to consider.Jonathan Porter BiographyFull BiographyJonathan focuses on white collar criminal defense, federal investigations brought under the False Claims Act, and litigation against the government and whistleblowers, where he uses his experience as a former federal prosecutor to guide clients in sensitive and enterprise-threatening litigation. At the Department of Justice, Jonathan earned a reputation as a top white collar prosecutor and trial lawyer and was a key member of multiple international healthcare fraud takedowns and high-profile financial crime prosecution teams. He serves as a vice chair of the American Health Law Association’s Fraud and Abuse Practice Group and teaches white collar crime as an adjunct professor of law at Mercer University School of Law.Kip Randall BiographyFull BiographyKip is a partner with Husch Blackwell’s White Collar, Internal Investigations, & Compliance team and counsels corporate and individual clients through internal investigations and those embroiled in government investigations, including those with the Department of Justice (DOJ), Securities and Exchange Commission (SEC), Environmental Protection Agency (EPA), and Internal Revenue Service (IRS). He also maintains an active commercial litigation practice in a variety of matters, including class actions, business disputes, and product liability matters, among other areas.