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Gathering Evidence in Qui Tam Actions

BY Joel Androphy, Ashley Gargour, Sarah Frazier
April 28, 2012

According to the federal government, while the act of gathering evidence creates a direct conflict between competing interests, the interest in disclosing the fraud generally outweighs the defendant's interest in keeping the fraud from being divulged. Submission of the United States as Amicus Curiae in Support of Relator's Motion to Dismiss the Counterclaims of Defendant Midwestern Regional Medical Center, Inc. at 7, U.S. ex rel. Grandeau v. Cancer Treatment Ctrs. of Am., 99-C-8287 (E.D. Ill. Apr. 2, 2004) (“Implicit in the very purpose of the statute is an assumption that individuals who become qui tam relators possess and are willing to disclose to the government inside evidence of fraud ' whether in the form of documents or other information ' that their employers or other potential FCA defendants would rather that relators not disclose to the government.”). How can the relator strike the right balance?

Employer and Employee

From the defendant's perspective, the employee's duties of loyalty and confidentiality trump all other interests, and any breach is intolerable. As a result, after an employee gathers and discloses the evidence of fraud, employers often file counterclaims against relators for breach of confidentiality agreements, breach of fiduciary duty, and conversion. See, e.g., U.S. ex rel. Grandeau v. Cancer Treatment Ctrs. of Am., 350 F. Supp. 2d 765, 772-74 (N.D. Ill. 2004). In ruling on these counterclaims, courts consider several factors, including: 1) whether the relator had access to the documents in the course and scope of employment; 2) the relevancy of the documents; and 3) the applicability of a valid privilege or enforceability of a confidentiality agreement.

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