How Keeping Written Notes May Help Your Qui Tam Case
Here’s a useful tip for qui tam whistleblowers: keep written notes if possible. Good qui tam cases are built on detailed facts. One step that False Claims Act whistleblowers can take that may strengthen their case is to keep contemporaneous notes about events or conversations that may prove the fraud.
When a court decides whether or not to dismiss a qui tam lawsuit or allow it to go forward, the judge pays special attention to whether the complaint includes a detailed description of the fraudulent conduct, i.e., the specific facts that show the “who, what, where, when and how” of the alleged fraud. By keeping good notes, a relator may be in a better position to provide these kinds of detailed facts.
Notes can cover a lot of territory. For example, one can keep a written record of the following:
- Meetings, telephone conversations or emails in which the wrongful conduct was discussed;
- Meetings, telephone conversations or emails in which someone raised concerns about what was going on;
- The particular government contracts (i.e., contact number and date) and specific contract provisions and specifications that an employer may have violated;
- Documents that are evidence of the fraud, such as invoices, billing records, double sets of books, charts, power points and email exchanges.
Keeping notes that describe incriminating documents is not the same as keeping copies of the actual documents themselves. While many successful qui tam cases are based, in part, on workplace documents that relators have retained, there are times that employees cannot or should not keep copies of company documents. In such instances, a person’s notes about important documentary evidence can be exceedingly helpful. For example, government prosecutors can use the information in a person’s notes to compel the defendant to produce the actual documents; likewise, the existence of contemporaneous notes can make it more difficult for defendants to plausibly deny that the documents exist.
You can keep notes in the form that best suits your needs and habits. For example, you can handwrite the notes, or type them on a home computer. If you decide to take notes, you should make sure to keep them confidential and not disclose them to anyone other than your lawyer. Also, you should take notes only from documents or information to which you have lawful access. Bear in mind the fact that if you pursue a qui tam lawsuit, your lawyer may provide your notes to the government, so you need to be as accurate as you can.
Finally, there may be some situations in which company policies (and even applicable laws) prohibit either taking notes or maintaining copies of notes at home. If that appears to be the case, you should consult with an attorney before taking any action.