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Gathering Evidence in Qui Tam Actions

By Joel Androphy, Ashley Gargour, Sarah Frazier,and Rachel Grier

Qui tam whistleblowers first discover fraud against the government in a variety of different ways; some learn it from a business owner's own statements, while others witness it in caring for a patient who has patently not received a billed-for treatment. Documentary evidence does not always accompany that first discovery of fraud, but without it, a case brought under the False Claims Act (FCA) can devolve into a swearing match, as the government, relators' counsel, and most whistleblowers are keenly aware. Consequently, even after making the difficult decision to blow the whistle on an employer by reporting FCA violations, a soon-to-be qui tam relator must often gather evidence to support his or her allegations.

Although the FCA encourages citizens to investigate and gather evidence to prove a fraud, a tension exists between the interests of the public, the government, and the relator (or whistleblower) on the one hand, and the defendant's interest in protecting its property, including potential proprietary information, on the other. A potential whistleblower may well ask: How much evidence must
I muster to support a qui tam action? What ethical concerns or legal consequences exist when I gather documents and other evidence from an employer?

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