In qui tam investigations, the government relies on detailed, thorough evidence to follow up on fraud allegations. These investigations take a considerable amount of time and resources, so it’s important that whistleblowers and their lawyers offer proof that fraud has occurred.
In Episode 4 of The Whistleblower Attorneys Podcast, former FBI investigator David Reign walks whistleblowers through the important do’s and don’ts of collecting evidence. As David explains, whistleblowers at this stage of the process should take note of the primary types of evidence, the value of discretion, and the time-sensitive nature of qui tam lawsuits.
The Three Buckets of Evidence
In our firm, one of the ways we help whistleblowers to collect evidence is by first dividing the concept into three buckets:
- Bucket 1: Evidence you have
- Bucket 2: Evidence you don’t have, but can access
- Bucket 3: Evidence you don’t have, and can’t access
Which bucket you fall into will depend on your state’s laws, your employment status, and your job function, among other considerations.
When a whistleblower contacts a qui tam attorney, they may already have collected some evidence, which would fall into Bucket 1.
Sometimes people save work emails, documents, meeting notes, or other types of records that pertain to their job function. This initial batch of evidence can help your attorney determine the general likelihood that there could be sufficient grounds for a lawsuit.
Bucket 2 is slightly more intimidating, as it requires whistleblowers to collect further evidence from their workplace. The good news is that a qualified legal team can guide you through how to do this as safely as possible.
Before seeking Bucket 2 evidence, talk to your legal team about what kinds of records and documentation you can legally collect.
It may be tempting to secretly record a work meeting where fraudulent activity is being discussed, but we advise clients to steer clear of this practice.
Even if there is fraud going on in your workplace, it may be that your state has rules prohibiting employees from taking photos or recordings of colleagues or employers without their consent. For example, ag-gag laws in North Carolina make it illegal for employees to take secretly record or photograph their workplaces.
In a similar vein, speak to your attorney if you signed any kind of confidentiality agreement or severance agreement with your company. It is essential that your legal team knows exactly which types of evidence are and aren’t appropriate before they ask you to collect more. Once you do go back to collect further evidence, take care not to send it through your employer’s’ email servers. As an alternative to making physical copies of documents, some whistleblowers take screenshots or pictures with their personal camera phone.
In bucket three are the types of evidence that you will not be able to access. This could be because you have already left the fraudulent company, because your job function doesn’t give you access to that type of evidence, or because your company has deliberately blocked your access to potential evidence. Thinking through the three buckets of evidence can help your legal team understand whether a qui tam lawsuit has a fair chance of success, and may help you decide whether you truly want to proceed with blowing the whistle.
If you are a healthcare professional, note that HIPAA Privacy Rule Exemptions allow you lawfully disclose certain Protected Health Information (PHI). This is permitted as long as you only disclose it to your attorney, and only if the PHI is absolutely necessary to the investigation.
“Don’t Rock the Boat”
As David discusses in the podcast, it’s important to keep your intentions to report fraud close to the vest. That doesn’t mean you can’t or shouldn’t speak up when fraud occurs, but appearing angry or disruptive at work could diminish your options down the line.
Although retaliating against whistleblowers is illegal, some employers do so anyway. If, for example, your employer limits your job responsibilities as a form of retaliation, it may be more difficult for you to gather sufficient evidence. Staying as calm as possible will give you the opportunity not only to collect evidence, but to make alternative plans for employment in the event that you need to leave the company.
It is common for companies to monitor their internal modes of communication, so avoid using your work email to discuss your case or to send evidence.
One of the most difficult aspects of discretion at this stage is that you also need to avoid discussing your intentions to file a lawsuit–even with friends and trusted colleagues, and certainly not on social media. You don’t want outside parties to step in the way of the investigation.
Another reason it’s wise to avoid sharing your intentions to report fraud is that someone else in your workplace could beat you to the punch. That could result in a loss of “first-to-file” status, which means you may become ineligible for the False Claims Act’s legal protections and financial rewards.
That’s also why timeliness matters in whistleblower cases. While you should definitely think carefully about the challenges of reporting fraud before you officially file a lawsuit, the sooner you start the process of getting the evidence you need, the better.
To learn more from David Reign about collecting evidence for whistleblower cases, listen to Episode 4 of The Whistleblower Attorneys Podcast If you believe you have witnessed fraud and would like to confidentially discuss your options, contact us today.