Common Sense Advice Your Client Can Understand
It is important to advise your Relator client about the parameters of securing documents and information derived from an employer’s or former employer’s computer system. Many clients still work at the company or have left and some have signed confidential agreements. They are nervous about “stealing” information or breaching their agreement.
Lay language is needed to relax the client and have them understand they are not breaking the law, but instead are enforcing it. Below is some useful language.
We believe that the law protects you when taking documents from your employer to support your allegations of fraud. Because whistleblowers are encouraged to come forward, there is a policy to allow a relator to take evidence and documents from his or her employer so long as the documents are ones that the Relator would have seen during the scope of his or her regular employment. While a relator is not allowed to root through the entire document database of a business to search for a fraud, we believe you are within the bounds of legal protection here.
Follow With a Sound Legal Analysis
Advise your Relator client that he or she is permitted to take documents and information when obtaining the materials was reasonably necessary to pursue a qui tam action. For example, in one recent case, a court noted both “a public policy exception to confidentiality agreements to protect whistleblowers who appropriate company documents” and an employer’s countervailing interest in “the enforcement of confidentiality agreements.” Erhart v. BofI Holding, Inc., 2017 WL 588390, at *12 (S.D. Cal. Feb. 14, 2017). Thus, the proper means to balance these competing interests is to ask whether “removal of documents was reasonably necessary to support [a relator’s] allegations of wrongdoing” Id. at *13 (internal quotation marks omitted).
Various courts across the county have reached similar rulings. See e.g. Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1062 (9th Cir. 2011) (explaining that if an employer asserts a counterclaim against a relator for breach of a confidentiality agreement, the relator “need[s] to justify why removal of the documents was reasonably necessary to pursue an FCA claim”); Shmushkovich v. Home Bound Healthcare, Inc., 2015 WL 3896947, at *2 (N.D. Ill. June 23, 2015) (“The protections afforded self-help discovery under the False Claims Act . . . have only extended to the collection of materials that are reasonably related to the formation of a case.”); U.S. ex rel. Notorfransesco v. Surgical Monitoring Assoc., Inc., 2014 WL 7008561, at *5 (E.D. Pa. Dec. 12, 2014) (distinguishing between “materials [that] are reasonably necessary to pursuing [a relator’s] FCA claim” and “information that is not related to proving [the] claim”) (internal quotation marks omitted); Walsh v. Amerisource Bergen Corp., No. CIV.A. 11-7584, 2014 WL 2738215, at *7 (E.D. Pa. June 17, 2014) (similar); U.S. ex rel. Ruhe v. Masimo Corp., 929 F. Supp. 2d 1033, 1039 (C.D. Cal. 2012) (denying a defendant’s motion to strike documents obtained by relators in alleged violation of a confidentiality agreement where the relators “limited their taking to documents relevant to the alleged fraud”).
Furthermore, the HIPAA statute specifically allows whistleblowers to disclose protected health information (PHI) to attorneys to determine how to proceed legally. Below is the exact language of the statute:
45 CFR 164.502 – Uses and disclosures of protected health information: General rules.
(j)Standard: Disclosures by whistleblowers and workforce member crime victims –
(1)Disclosures by whistleblowers. A covered entity is not considered to have violated the requirements of this subpart if a member of its workforce or a business associate discloses protected health information, provided that:
(i) The workforce member or business associate believes in good faith that the covered entity has engaged in conduct that is unlawful or otherwise violates professional or clinical standards, or that the care, services, or conditions provided by the covered entity potentially endangers one or more patients, workers, or the public; and
(ii) The disclosure is to:
(A) A health oversight agency or public health authority authorized by law to investigate or otherwise oversee the relevant conduct or conditions of the covered entity or to an appropriate health care accreditation organization for the purpose of reporting the allegation of failure to meet professional standards or misconduct by the covered entity; or
(B) An attorney retained by or on behalf of the workforce member or business associate for the purpose of determining the legal options of the workforce member or business associate with regard to the conduct described in paragraph (j)(1)(i) of this section.
You will have an empowered client who understands what he or she can and cannot do. That client is then better able to transmit valuable information to capable qui tam attorneys who then have better ammunition to use when writing the complaint.