Intro to Whistleblowing: Collecting Evidence in North Carolina
You’ve established that your North Carolina employer (or a competitor or a contractor for whom you subcontract) is committing fraud against the government—Medicare or Medicaid billing fraud, military contracting fraud, grant fraud, or some other misconduct. You’ve tried to resolve the issue internally, without result, so you’ve decided to blow the whistle. Now what?
The first steps are to consult a North Carolina whistleblower attorney and to begin collecting and organizing your evidence. Your North Carolina whistleblower attorney will likely have specific guidance for evidence collection, but some basic guidelines always apply.
- Take What You Need to Prove Your Claims, But Only What You Need.
You’ll need to gather documentation to support your allegations and illustrate the fraud. The general rule is the more the better—filing thresholds are higher for fraud claims, and not having sufficient proof can sink your case. You need documents showing the lifecycle of the fraud, proof the government actually paid the fraudulent bill, and evidence showing the fraud was knowing—not a mistake or a misunderstanding of the regulations.
But taking too much can also cause problems for your case. Simply dumping everything you can get your hands on can make you vulnerable to counterclaims for breaching confidentiality obligations. Whistleblowers are protected from these kinds of claims to some extent, but not if they go too far. Take what you need . . . but only what you need.
An early consultation with a North Carolina whistleblower attorney can help you figure out what evidence to collect and the safest way to do so.
Relators do have some protection for evidence collection. Courts have recognized that the public policy against fraud extends that protection even when the relator is subject to a nondisclosure agreement. HIPAA laws that protect the privacy of patient health records include an exception to allow a relator to disclose to his or her lawyers and the government confidential medical records that support a claim of fraud (see 45 CFR § 164.502; https://www.law.cornell.edu/cfr/text/45/164.502).
- Stay in your lane—only collect evidence where you’re allowed to be.
While you’ll want to gather as much evidence as you can, being a whistleblower does not entitle you to access systems or documents not normally available to you. You can, for example, collect evidence from emails sent to you or from systems you have access to as part of your job, but not emails sent to someone else (unless the other person forwards the email or otherwise shares it with you) or systems outside your authority. HIPAA has a provision allowing you to share protected patient information—it doesn’t allow you to access patient information you can’t otherwise access. Similarly, don’t engage in sting operations, take items from the site without authorization, or otherwise engage in deception. That sort of conduct could result in your evidence being excluded.
Finally, do not try to access information or systems after you’ve been suspended, placed on administrative leave, or terminated.
If you have accessed documents outside these guardrails, tell your lawyer about it. Explain the circumstances in detail. Your lawyer will decide the best way to handle that evidence.
- Don’t set off alarms.
While you are collecting evidence to support your case, protect yourself and avoid raising alarms. Corporate IT departments often monitor activity on corporate networks and hardware. Unusual activity patterns, such as extensive printing or emailing of documents from a company to a personal email account, may well raise alarms. If it’s part of your job to print files or to save them to PDF, you may be able to engage in some of those processes.
But if you can, avoid engaging in any whistleblower activity on devices belonging to the company or connected to the company network. Instead of taking screenshots or saving PDFs of information saved in databases, consider using your personal phone to take pictures of information on your computer screen. If you can’t safely preserve documents or information, make careful notes—on your own device or by hand—of what the information is, what it shows, and where government investigators can find it. (Information about where information can be found, electronically or physically, will be immensely helpful to government investigators, even if you do not actually have the information.) Preserve records of any internal reports you make to address the situation and what documents you included or pointed to in those reports, as well.
In the same vein, approach potential witnesses with extreme caution. Certainly identify useful witnesses to your lawyer, along with whatever contact information you might have for them. But actually speaking with witnesses is risky. If you’ve misread the witness, you might put your investigation, your job, or your entire case at risk. Always speak with your attorney before speaking to any potential witness, or anyone else.
- Keep potentially privileged (attorney-client) materials separate.
A company’s communications with its attorneys are privileged just like your conversations with your own lawyer are. This privilege includes a corporate attorney’s communications with employees, especially employees responsible for the leadership of the company and employees involved with a matter that is being or may be litigated. If you spoke to a company attorney about the issues you’re now seeking to report, those conversations are likely privileged. Your lawyer may not be able to review them, and government attorneys do not want to see such information because doing so may “taint” the investigation and undermine your case.
Keep in mind that company attorneys don’t only work for the Legal Department. Corporate attorneys may work in other departments, such as Compliance or Regulatory Affairs, or they may work in a particular business unit.
Privilege is a complicated concept. If you’re not sure whether information is privileged, talk to your attorney. Don’t provide the privileged information—your attorney may not be able to look at it either—but describe the context and the position of the person involved. Err on the side of caution; don’t provide any information that might be privileged. Keep that questionable information separate and talk to your attorney about it.
- Talk to your lawyer—don’t talk to anyone else.
The law provides some protection from nondisclosure or confidentiality laws for whistleblowers. But no law allows you to talk about what you know to your friends and family, other employees, or the public at large.
Once you have engaged a lawyer, talk only to your lawyer. Even once your case is filed, the government agencies involved will communicate with you through your lawyer. Sidestepping your lawyer or talking to anyone outside your lawyer’s office—including directly to government attorneys or investigators—can, at best, cause needless confusion. At worst, you could inadvertently compromise your own interests or undercut your case altogether.
On related note, make sure to tell your lawyer everything—even information you think may be unhelpful to your case. Your lawyer is there to support you, and to help you build the strongest case possible. They can’t do that effectively if they don’t know the whole story.
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