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Judge outlines tough standards in False Claims Act case

Case underscores the do's and don'ts of protecting privilege

U.S. Magistrate Judge Thomas B. Smith faced a Florida medical center’s claims of privilege over a host of documents and communications that the government and a qui tam whistleblower sought for discovery in a False Claims Act lawsuit, and he struck them down one by one like dominoes, with few exceptions.

It was a victory for Elin Baklid-Kunz, director of physician services at Halifax Hospital Medical Center in Daytona Beach, Fla., who sued Halifax in 2009 under the qui tam provisions of the False Claims Act. She claimed Halifax submitted false and fraudulent Medicare/Medicaid claims and paid kickbacks to physicians. The government intervened in 2011. 


Smith took representative samples of the seven categories of documents in question, which included documents, communications and a log that the medical center’s compliance department kept regarding potential compliance issues. His assessment of them led him to state in the order, “A document is not privileged simply because the custodian wants it to be or because it is marked as such.” 

Associate Editor

Melissa Maleske

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