## Facts

- Columbia/HCA, a large healthcare company, faced a federal investigation into alleged Medicare and Medicaid billing fraud.
- During the investigation, Columbia/HCA conducted internal “coding audits” of Medicare billing records under counsel’s direction and treated related materials as attorney-client privileged and work product.
- Columbia/HCA initially resisted government requests for the audits on privilege grounds.
- After a change in corporate leadership, Columbia/HCA voluntarily produced the coding audits and related documents to DOJ, HCFA, and other agencies, under written confidentiality and non-waiver agreements.
- Private third-party payors and related plaintiffs later filed civil actions (consolidated in MDL) alleging unlawful billing practices and sought the same audit materials in discovery.
- The district court ordered production, holding that Columbia/HCA’s voluntary disclosures to government agencies waived attorney-client privilege and work-product protection.
- Columbia/HCA pursued an interlocutory appeal under 28 U.S.C. § 1292(b).

## Issues

1. Whether voluntary disclosure of privileged communications to government agencies can preserve attorney-client privilege against private civil litigants under a “selective” or “limited” waiver doctrine.
2. Whether voluntary disclosure of purported work product to government investigators waives work-product protection as to private litigants.
3. Whether confidentiality and non-waiver agreements with government agencies prevent waiver as to third parties.

## Decision

- The Sixth Circuit affirmed the order compelling production.
- The court held that voluntary disclosure of the coding audits and related materials to DOJ, HCFA, and other agencies effected a complete waiver of attorney-client privilege as to those materials.
- The court rejected selective waiver in the Sixth Circuit, even where disclosure was made under confidentiality and non-waiver agreements.
- The court held that work-product protection was also waived because disclosure to government investigators (an actual or potential adversary) was inconsistent with maintaining secrecy from other adversaries, including private plaintiffs.
- The court concluded that private agreements with the government could not alter the law of waiver as applied to third parties.

## Legal Principles

- Attorney-client privilege is generally waived by voluntary disclosure of privileged communications to third parties outside the privileged relationship.
- The Sixth Circuit does not recognize selective or limited waiver that would preserve privilege against some third parties after voluntary disclosure to others, including government agencies.
- Work-product protection may be waived when materials are voluntarily disclosed in a manner inconsistent with keeping them from adversaries; disclosure to an actual or potential adversary can waive protection as to other adversaries.
- Confidentiality or non-waiver agreements between a disclosing party and the government do not bind third parties and do not prevent waiver resulting from voluntary disclosure.
- Policy arguments favoring selective waiver are for legislative action rather than judicial modification of waiver rules.

## Conclusion

The Sixth Circuit held that Columbia/HCA’s voluntary production of internal billing audit materials to federal agencies waived both attorney-client privilege and work-product protection as to those materials, and confidentiality agreements with the government did not preserve the protections against discovery by private civil plaintiffs.


In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289 (6th Cir. 2002)