One of my favorite actors is Gary Oldman. In Leon: The Professional, Oldman plays a corrupt police detective trying to bring down a hitman (Jean Reno) who is protecting a young girl (Natalie Portman in her earliest role) who witnessed Oldman kill her family. When Oldman discovers where they are hiding, he sends a SWAT team to take him out. Reno quickly dispatches everyone who comes near his front door. Oldman, now understanding the severity of the situation, demands that the entire NYPD come to his aid to kill this single man, leading to a classic scene:
Julie and I have been blessed in that many of our False Claims Act relators have great expertise in their fields. It is wonderful to have “expert witnesses” be able to explain the fraud to us and the government with their years of experience and knowledge supporting their claim.
But sometimes this blessing can also be a bit of a curse, as the smarter you are as a relator, the more discerning you may be as to what you tell us and what you give us. This can result in you being too smart for your own good. On the one hand, it is great for you to take your thousands of emails and files and whittle them down to just what you think is important. Please do that, and please identify those important documents for us. On the other hand, it is imperative that you give us all the documents, whether you think they are important or relevant or not. To quote one of Julie’s favorite lines, “If you have a cocktail napkin with the defendant’s name on it, we want it.” When I ask you to give me everything, I mean that I want you to give me EVERYTHING.
There are many reasons for this. First, you lack the legal training to know what may be important to your case. There are elements of a False Claims Act case that you likely would not consider and that vary from state to state, including scienter, materiality, and damages. Emails unrelated to your claims may provide exposure to a defendant’s knowledge, character, and job responsibilities. On the most basic level, a random email to your entire office asking about lunch plans may be valuable simply by providing the names and email addresses of all the employees working there on a certain date. You never know what might be helpful to the government’s investigation!
Second, you may bring us a narrow False Claims Act claim, and from that, and from the evidence, we are able to discover more or better fraud claims, and sometimes even personal claims that we can bring on your behalf. In fact, this happens frequently, because we have the qui tam and employment law experience to know what to look for.
Third, there is no quicker way to put your case at risk than to fail to provide evidence to the government. In fact, the False Claims Act statute mandates that you provide “written disclosure of substantially all material evidence and information the [relator] possesses.” To be blunt, you just do not know what they think is relevant. They may already have an ongoing investigation of your defendant for a different claim. After investigating your claims, they may bring more, different claims. If you provided documentation that clues the government in to these additional claims, you may be entitled to a relator’s share of a claim that you didn’t even know you had. But if you fail to provide that documentation because it didn’t seem relevant, and the government discovers the claim on its own, it may shut you out of the recovery completely.
Fourth, it is imperative that you are forthcoming about your level of involvement in the fraud. Once your case is unsealed, the defendant will likely accuse you of having been a participant, and maybe even the mastermind, of the fraud. It is always better to be open and honest with the government about what you know and did, and what documents you have, even if they are incriminating, rather than for the government to discover them later and put you on the defensive.
Fifth, your provision of a document may lead us to follow-up questions resulting in the discovery of even more documents that you had forgotten about. A seemingly innocuous email may mention an attachment that you didn’t provide, and when we ask you to go find that attachment, you discover a treasure trove of documents you’d forgotten about. It happens more than you’d imagine!
These are just some of the reasons that providing too much information is better than providing too little. Your relator’s share will be determined in part by your willing cooperation and the value you provide; you don’t want to be viewed as having withheld documents. You definitely don’t want to be “caught” having withheld a document; even if it is a mistake, you may be viewed as having not been completely forthcoming, and the government will be wondering what else you might have withheld.
I get a painful feeling in my gut whenever I find out (usually in front of the government) that we did not produce a document and I hear the client say “oh, I didn’t think you wanted that!” And that is when my inner Gary Oldman comes out. If action movies aren’t your thing, then Ron Swanson from Parks and Recreation (another Bracker & Marcus favorite) sums it up nicely. Give me all the documents and evidence you have.