This case is a false claims case. Plaintiff filed a motion to compel after Defendant asserted an attorney-client privilege regarding conversations attended by Defendants’ Medicare Compliance Officer. During depositions, Defendant argued that Mr. Istafanous was an agent of the legal department and participated for the purpose of identifying risks and determining appropriate actions based on concerns the relator was raising. The court held that Defendant bears the burden of proving privilege. The court found “it is not clear from the record that Mr. Powers or Ms. Hinthorne were actually aware that any particular meeting attended by Mr. Istafanous was conducted as part of an internal legal investigation by Premera or that they were aware of his role as a “representative of the legal department. … [the court allowed] Relator to reopen the depositions of Mr. Powers and Ms. Hinthorne. At the depositions, Relator may question the witnesses to determine whether they and other participants at meetings attended by Mr. Istafanous were informed: (1) that the particular meetings were conducted as part of a legal investigation by Premera; and (2) that Mr. Istafanous attended the meetings as a representative of the legal department. If the witness clearly indicates that the participants in a particular meeting attended by Mr. Istafanous were informed that the meeting was conducted as part of a legal investigation and of Mr. Istafanous’s role, Defendant may assert attorney-client privilege for communications at such a meeting. If the witness is unable to testify that attendees at a particular meeting were informed that the meeting was conducted as part of a legal investigation and of Mr. Istafanous’s role, Defendant shall not be permitted to assert attorney-client privilege for communications at such meetings and Relator may continue to question the witness regarding the substance of such communications.” Decided: December 15, 2006.

Note: Mr. Istafanous, an attorney, served as Primera’s Vice President of Corporate Compliance and Ethics.