Be wary when providing privileged documents
Congressional authority is not the same as the authority given to a court of law
Congress's power to investigate, and the means by which it does so, are not expressly provided for in the Constitution, but are instead derived from its inherent powers to legislate. That authority is derived from the Constitution's "Necessary and Proper" clause and is bolstered by the congressional contempt statutes. Congress has both constitutional and statutory authority to punish those who refuse to comply with its subpoenas to appear or to produce books and records.
While it is true that the Supreme Court may review the constitutionality of Congress's deeds or decisions, it can not obligate the legislative branch to recognize the testimonial privileges witness enjoy in judicial settings.
Those subpoenaed by Congress must be wary when asked to produce privileged documents, as doing so waives the attorney-client privilege's protections as to all parties, including third-party civil litigants. Thus, corporations and individuals asked to produce documents are given the Hobson's choice of risking contempt of Congress on the one hand and waiving their testimonial privileges on the other.
CONGRESS QUICK TO INVESTIGATE
All is not lost, however, as those appearing before Congress can make efforts to convince it to recognize their testimonial privileges. While doing so may not yield the desired results at the congressional level, those same efforts may convince courts to find that there was no privilege or work product waiver in parallel or subsequent judicial proceedings.
The Anthem Blue Cross hearings illustrate Congress's capability to quickly investigate industries falling under its purview. In less than one week from Anthem's announcement, Congress issued subpoenas for documents and in a little more than two weeks after announcing its investigation, it held hearings.
Consequently, those who find themselves under investigation must understand the committee's rules and make efforts to protect the privilege. Failure to do so could have severe ramifications.
Jeffrey J. Ansley is a partner in the Dallas office of Bracewell & Giuliani LLP.
Don R. Berthiaume is an associate in the Washington, D.C., office of Bracewell & Giuliani LLP.
Conversations With Perry and Friends
April 14th 2025Perry Cohen, Pharm.D., a longtime member of the Managed Healthcare Executive editorial advisory board, is host of the Conversations with Perry and Friends podcast. His guest this episode is John Baackes, the former CEO of L.A. Care Health Plan.
Listen
Ohio’s Medicaid Work Requirement Efforts Aim to Boost Engagement, Avoid Coverage Loss
April 18th 2025Maureen Corcoran, director of the Ohio Department of Medicaid, believes the work requirement policy can be both a financial and moral effort to improve the lives of Medicaid consumers.
Read More
Breaking Down Health Plans, HSAs, AI With Paul Fronstin of EBRI
November 19th 2024Featured in this latest episode of Tuning In to the C-Suite podcast is Paul Fronstin, director of health benefits research at EBRI, who shed light on the evolving landscape of health benefits with editors of Managed Healthcare Executive.
Listen
Why Better Data and Awareness Matters for Medicaid Work Requirements
April 17th 2025With policymakers considering work requirements for Medicaid eligibility, Jennifer Haley, principal research associate in the Health Policy Division at the Urban Institute, said it’s more important than ever to understand how those changes could unintentionally cause harm, particularly when data systems fall short and public awareness is limited.
Read More
