Archives: Discovery

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A Hospital’s Deserving Stark and AKS Victory—But At What Cost?

This April, providers cheered when a federal district court in the Middle District of Florida found insufficient evidence to support a relator’s theory that a hospital had provided free parking to physicians, in violation of the Stark Law and Anti-Kickback Statute (AKS). In the Report and Recommendation for United States ex rel. Bingham v. BayCare … Continue Reading

Third Circuit Revives Reverse False Claims Act Case but Acknowledges Burden on Defendants

On October 5, 2016, the Court of Appeals for the Third Circuit remanded a “reverse” False Claims Act (FCA) case to the District Court for the Eastern District of Pennsylvania for further proceedings. The court’s decision in United States ex rel. Custom Fraud Investigations, LLC v. Victaulic Company, Case No. 15-2169 (3d Cir., Oct. 5, … Continue Reading

The Perils of Parallel Proceedings: To Stay or Not to Stay

One of the more concerning trends for the defense bar in False Claims Act cases is an uptick in parallel criminal and civil proceedings. While the pursuit of parallel proceedings is long-standing DOJ policy, the last few years have seen a “doubling down” by the government on the use of these proceedings — for instance, … Continue Reading

First Circuit Rules on Crime-Fraud Exception to Attorney-Client Privilege

The crime-fraud exception to the attorney-client privilege sometimes becomes an issue in government enforcement matters, including litigation under the False Claims Act (FCA). For example, when a government contractor seeks legal advice regarding its compliance with complex regulatory schemes that touch upon the FCA, under some circumstances, a relator or the government may assert that … Continue Reading

D.C. Circuit Declines to Eviscerate Attorney-Client Privilege in Internal Investigations

On Tuesday, August 11, 2015, in United States ex rel. Barko v. Haliburton et al., the U.S. Court of Appeals for the D.C. Circuit issued an opinion vacating another series of rulings by the United States District Court for the District of Columbia that had required defendant Kellogg Brown & Root, Inc. (KBR) to produce … Continue Reading

Another Reminder to Approach Dissemination of Internal Investigation Materials with Caution

Companies internally investigating potential false claims issues recently received another reminder of the care that must be taken to maintain attorney-client privilege over internal investigation files and reports. In particular, companies must be very cautious with internal dissemination of any internal investigation files and reports. On June 25, in the midst of trial, a federal … Continue Reading

Court Allows Former Employee to Retain Company Documents Relevant to Potential FCA Claim

Companies may think their documents are safe from disclosure based on confidentiality agreements with employees, but a recent decision in the Northern District of Illinois highlights the risk that courts will permit a relator to keep company documents after a False Claims Act (FCA) suit is filed — even potentially privileged documents — and not … Continue Reading

Defense Attorneys’ Billing Records Irrelevant in Determining Relator’s Attorneys’ Fees

On March 20, 2015, the Eastern District of California ruled in United States ex rel. Doe v. Biotronik, Inc., that defendant Biotronik Inc.’s attorneys did not have to turn over their billing records to the relator and his counsel, who sought those records claiming they were relevant to prove the reasonableness of their own fees. … Continue Reading
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