Not-So-Common Interest: Privilege Claim by Relator and Government Runs Aground
Does the common interest doctrine apply to all communications between a relator and the government? A recent decision from the District of Minnesota reinforces that the answer to that question is “no”. In U.S. ex rel. Fesenmaier v. Cameron-Ehlen Group, Inc., a relator and the government sought to shield from discovery certain communications that they had exchanged after the relator told an FBI agent investigating the defendants that he had hired a lawyer to draft a qui tam complaint, and before submitting his pre-filing disclosure to the DOJ. According to the plaintiffs, the relator’s comment to the FBI reflected that he and the government shared a common legal interest from that point on. The court disagreed.
