Last week's
Privilege Point discussed the "at issue" doctrine,
which can trigger an attorney-client privilege waiver without the
litigant disclosing, relying on, or referring to privileged
communications. Most courts recognizing the doctrine apply it only
if the litigant affirmatively raises an issue to gain some
advantage in litigation, rather than simply denies the
adversary's allegations.
In Barker v. Columbus Regional Healthcare System, Inc.,
Case No. 4:12-cv-108 (CDL), 2014 U.S. Dist. LEXIS 120504 (M.D. Ga.
Aug. 29, 2014), the court took a far more expansive approach. The
plaintiff claimed that defendants violated the False Claims Act and
other statutes by submitting false claims "with the intent to
violate the law." Id. at *4. Defendant Columbus
disclaimed an "advice of counsel" defense, and also
disclaimed any intent to rely on privileged communications —
but stated its intent "to offer evidence at trial that it
believed its conduct was lawful." Id. at *4-5.
