Attorney-Client Privilege at Risk in FCA Investigations of Healthcare Organizations

Protecting Confidential Information and Work Product, Avoiding Inadvertent Disclosure and Waiver

A live 90-minute CLE webinar with interactive Q&A

Tuesday, May 16, 2017
1:00pm-2:30pm EDT, 10:00am-11:30am PDT

This CLE webinar will provide guidance to healthcare counsel for protecting the attorney-client privilege when responding to investigations arising under the False Claims Act (FCA). The panelists will offer their insights into the scope of applicable privileges, how such privileges can be inadvertently waived, and how to best protect these privileges.


Healthcare organizations must protect the confidentiality of sensitive information when providing documents to independent auditors or government investigators. Inadvertently submitting records protected by the attorney-client privilege can result in waiver of the privilege.

The Department of Justice (DOJ) is aggressively enforcing the FCA. Over half of the nearly $5 billion recovered in 2016 came from the healthcare industry. On Mar. 1, 2017, the U.S. District Court for the Middle District of Florida ordered nursing facility operators in an FCA case to pay $347 million (U.S. ex rel. Ruckh v. CMC II L.L.C.). The order followed a jury verdict that found the defendants knowingly submitted false claims to Medicare and Medicaid.

Counsel at both large and small healthcare companies must understand the issues related to preserving and protecting the attorney-client privilege in FCA-related investigations. Our panelists will discuss how counsel can guide a healthcare organization in protecting these privileges during an outside investigation or when conducting an internal investigation.

Listen as our authoritative panel of healthcare attorneys examines recent developments on attorney-client privilege and work product doctrine in healthcare investigations and enforcement. The panel will also address Upjohn issues and the Yates memo, and will offer best practices for preserving and asserting the privilege and work product doctrine.


  1. Privilege, work product and waiver—recent developments in the healthcare context
  2. Privilege issues in FCA investigations
    1. Halifax and its lessons
    2. Privilege and government investigations
  3. Upjohn issues and the Yates Memo
  4. Preserving the privilege


The panel will review these and other key issues:

  • What approaches should healthcare organizations and their counsel implement to identify and protect privileged information?
  • How can a healthcare organization maintain the confidentiality of sensitive information when conducting an internal investigation or during a government investigation?
  • What are the key business and legal best practices for counsel and healthcare organizations to preserve the privilege?


Matthew M. Curley, Member
Bass Berry & Sims, Nashville, Tenn.

Mr. Curley represents clients in connection with internal and governmental investigations and related civil and criminal proceedings, particularly within the healthcare industry. His counsels his clients facing inquiries and investigations by federal and state regulators and False Claims Act litigation. His perspective is informed by his prior experience as an Assistant U.S. Attorney with the U.S. Attorney's Office for the Middle District of Tennessee, where he served as Civil Chief and coordinated the Office's civil enforcement efforts in representing the United States and its agencies in healthcare fraud and abuse actions arising under the False Claims Act.

Eric S. Klein, Member
Dykema Gossett, Bloomfield Hills, Mich.

Mr. Klein devotes his practice to representing clients in the healthcare sector with respect to corporate and regulatory issues, including hospitals, physician groups, long-term care facilities, continuing care retirement communities, ambulatory surgery centers, dental service organizations, hospice providers and home health agencies. In particular, Mr. Klein counsels such clients on compliance and reimbursement issues as well as health facility and physician practice acquisitions and other changes of ownership, including related licensure and Medicare/Medicaid certification matters.

Live Webinar

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This webinar is eligible for at least 1.5 general CLE credits.

CLE credits are not available for PR.

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Customer Reviews

Very current topic and I appreciated the real life examples.

Lisa Thompson

Adelman Sheff & Smith

Excellent presentation.

Barry Jasilli

CVS Caremark

The seminar provided good practical examples and advice plus good Q&A.

Don Weinbren

Trenam Kemker

The presentation materials were very helpful and thorough.

Kristin Jones

Stradley Ronon

The seminar tackled a difficult issue that we need to understand better.

Evan Smith


or call 1-800-926-7926

Health Law Advisory Board

Lowell C. Brown


Arent Fox

Jennifer L. Evans



Ryan S. Johnson


Fredrikson & Byron

Gina M. Kastel


Faegre Baker Daniels

Karen S. Lovitch


Mintz, Levin, Cohn, Ferris, Glovsky and Popeo

David A. Manko


Rivkin Radler

John J. Miles


Ober Kaler

C. Elizabeth O'Keeffe


Wyatt, Tarrant & Combs

J. Peter Rich


McDermott Will & Emery

Donald H. Romano

Of Counsel

Foley & Lardner

Judith A. Waltz


Foley & Lardner

John R. Washlick


Buchanan Ingersoll & Rooney

Jesse A. Witten


Drinker Biddle & Reath

or call 1-800-926-7926

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