Commercial Litigation and Arbitration

Privilege and Work Product — Waiver — Qui Tam Actions

When privileged or work product information is exchanged between the relator (the original private plaintiff) and the government in an action brought under the False Claims Act, 31 U.S.C. § 3729 ff., neither privilege nor work product is waived — at least if the material is exchanged prior to a decision by the government to decline to prosecute the action — because the common interest exception applies. Akin, Gum, Strauss, Hauer & Feld LLP v. United States, 503 F.Supp.2d 373 (D.D.C. 2007) (‛When information is shared between the relator and the United States, the attorney-client and work product privileges are not waived because any communications are conducted in furtherance of joint prosecution and on the basis o common interests“ (citation omitted)).

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