The False Claims Act (FCA) contains procedural mechanisms, including the qui tam provision, which allow private citizens to bring a lawsuit on behalf of the United States government against a person or business that has defrauded the government. Whether dealing with Medicare fraud, defense contract fraud, government contract fraud, customs fraud, or other types of fraud, each scheme has a core of facts. Documents often provide the best evidence for proving fraud, even more than witness testimony — something a skilled False Claims Act whistleblower attorney knows well.
Contrary to widely held belief shaped by mass media where fraud is revealed on the stand in open court leading to immediate judgments, most fraud cases are proven using vast amounts of documentary evidence to prove the defendant’s conduct was knowing and illegal. While witness testimony can sometimes lead to significant breakthroughs, these moments typically result only after extensive work analyzing documents to piece together the full scope of the unlawful activity. Judges will look to all available documentary evidence in determining if there is sufficient evidence of the alleged fraud to go to trial. Documents are critical to support a whistleblower’s claims, offering details and context about the alleged illegal practices.
Just as important, there is no single “smoking gun” document in a False Claims Act case. Fraud varies widely, and the necessary documents to prove each case will differ accordingly. For instance, a nurse exposing fraudulent unnecessary care may rely on memos or doctors’ orders, whereas an auditor might use spreadsheets, audits and billing reports.
Documents can still be categorized despite these differences. Obvious examples include internal company records, memos, meeting minutes, emails, text messages, voicemails, financial records, government contracts and invoices, and audit reports. Other valuable categories, often overlooked, include organizational charts, employee directories (including outdated ones that list former employees), and training manuals. This type of evidence can help determine who was knowledgeable about the misconduct and the extent of their knowledge, a key element in a FCA case.
Detailed and contemporaneous documentation strengthens a whistleblower case, but whistleblowers should be careful when making copies. Generally, if the document was encountered during the normal course of work where the whistleblower has a legitimate reason to have access to the document, it is typically permissible to copy it as evidence of the alleged fraud. However, whistleblowers should consult with an experienced False Claims Act whistleblower attorney to develop a strategy that protects them and aims to stop the fraudulent activities. This is especially true if the documents fall into a category that may give them different protections, such as healthcare records, classified documents or attorney-client communications.