In Barker v. Columbus Regional Healthcare System, Inc., No. 4:12-cv-108 (M.D. Ga. Aug. 29, 2014), the district court held the defendant’s mere intention to offer evidence that its conduct was lawful waived the attorney-client privilege, despite defendant’s clear statement to the court that it did not intend to assert an advice of counsel defense or rely on communications with its counsel in support of its defense.  In this qui tam action, the Relator alleged that defendant had violated the False Claims Act.  To prevail, the Relator has the burden to prove that defendant knowingly submitted false claims with the intent to violate the law.  Defendant denied knowingly violating the law and indicated that it would introduce evidence to prove that it believed its conduct was lawful.  Relator argued that this waived the attorney-client privilege, and the court agreed.  The court held that Cox v. Admin. U.S. Steel & Carnegie, 17 F.3d 1386 (11th Cir. 1994), in which the appellate court found waiver, could not be distinguished from the present case.  The court in Coxheld that a defendant’s intent to prove its conduct was lawful “necessarily implicates all of the information at its disposal when it made the decision[.]”  The court in Barker explained that, while a defendant could argue that plaintiff had failed to meet its burden of proving “knowing” violation of the law without waiver, once the defendant goes further and  “intends to explain fully why its conduct was not knowingly and intentionally unlawful,” defendant waives the privilege.