Whistleblower attorneys Renée Brooker and Eva Gunasekera answer questions about the False Claims Act, government program fraud, and how to be a whistleblower. One of the main questions often asked of the team at Tycko & Zavareei LLP is what kinds of hard evidence should a whistleblower have in order to convince both an attorney to take their case, and the Department of Justice to investigate. Read on to understand what kinds of proof can help you build the strongest case possible as a whistleblower.
Becoming a Whistleblower: How to Prepare
The word of a whistleblower is not enough to launch a full investigation into alleged fraud. As Gunasekera put it, “when a person observes what they believe is illegal activity, they think that their word is sufficient…because it is such an eye-opening experience that they went through at their former employer. Oftentimes, they have been retaliated against because they did raise their hand about these concerns. To the whistleblower, that should be evidence enough that what they were saying was truthful. While it is helpful evidence, that standing alone is not sufficient for the DOJ to open an investigation.”
1. Collect hard evidence.
Accusing a company of fraud against the government is a big undertaking. In order to launch a Department of Justice (DOJ) investigation into ongoing or past fraud, whistleblowers will need to provide some kind of evidence to convince the DOJ to use the full might of the subpoena.
“In a fraud case, we’re talking about electronic and paper evidence,” says Brooker. Many whistleblowers may not realize the wealth of information they can collect from their company. Examples of useful evidence to show a whistleblower attorney may include:
- Slack messages or other online chat records
- Text messages
- Company documents
- PowerPoint presentations
- Records of complaints made to Human Resources
2. Consult with an attorney before you report your company.
“It is critical to try to talk to an attorney beforehand,” advises Brooker. A consultation with whistleblower attorneys Renée Brooker and Eva Gunasekera is free and non-binding, so you can explore your options risk free.
3. Speak to an expert before you take any documents with you.
“There are specific allowances for documents you can take and documents you should not take. It depends on whether it’s a healthcare case, or whether you work for a government grantor, or on a government contract,” says Brooker. Gunasekera adds, “HIPAA is intended to protect health records, but there is an exception for law enforcement purposes.” While recording conversations, especially without consent, is illegal in many states, there are often more documents available that can be used for proof than you may realize.
4. Collect more evidence than you think you might need.
While you do not need to build the full case on your own, as Gunasekera reminds us that that is why you will work with a whistleblower attorney, you will need to provide enough proof to engage with a whistleblower attorney and convince the Department of Justice to launch an investigation into your claim.
“You do not need to have a document from your employer that says, ‘I committed the fraud that you think I did.’ No one’s putting that in an email,” says Brooker. Even one smoking gun email in the world of white collar fraud is not enough to make or break a fraud case. Fraud cases are built off of “a collection of the kinds of documents that your company keeps on a regular basis.” Even seemingly harmless documents like compliance manuals or onboarding material can help show what the company should have been doing and illustrate where they went astray.
5. When in doubt, speak up.
“There is no one size fits all,” says Gunasekera in regards to filing a fraud case and becoming a whistleblower. For instance, senior management with knowledge of nationwide practices may need less documented support than someone who worked only in one city and is alleging nationwide fraud. A trained whistleblower lawyer will be able to take into consideration your specific role in the company when determining what evidence may be needed in your qui tam case.
For example, a head nurse’s day-to-day observation about the kinds of care that patients receive may be able to build a whistleblower case with less or different kinds of documentation than a maintenance worker who reports the same kind of neglect without any level of medical expertise. “The documents that you have coupled with your role in the company are going to play off of each other,” says Brooker.
6. Speak to a whistleblower attorney who has a good track record of success.
“You want a lawyer who has credibility with the DOJ,” says Brooker. The team at Tycko & Zavareei LLP has years of experience bringing credible complaints to the DOJ for successful investigation and a substantial recovery of funds. Working with an experienced whistleblower attorney who is in good standing with the Department of Justice may make the difference between your case getting off the ground right away or stalling.
Ask a Lawyer about what Types of Evidence Are Needed for a Qui Tam Case
“Tell us what your concerns are,” says Brooker. As trained whistleblower lawyers, Brooker and Gunasekera have experience focusing on what kinds of concerns may qualify for certain kinds of whistleblower claims. They are able to determine what kinds of documents and proof you may have available, depending on whether you or not you have remained at your company at the time of filing your claim.
A potential case with a whistleblower lawyer is vetted through a series of conversations about the documents you are able to provide and how they can support your case. A whistleblower lawyer can help ensure that you have collected only the evidence that is legal for you to take and will be most helpful in convincing the Department of Justice to launch an investigation.
At the end of the day, attorney Eva Gunasekera summed it up very simply: “If you have observed fraud and if you have documentary evidence of that, you may have a fraud claim, whether you have been at the company for two weeks or 20 years.”