Disclosure Statements in False Claims Act detail a whistleblower’s evidence of fraud, including documents, theories of liability, witnesses and other sensitive information.
Since the False Claims Act requires a whistleblower to be represented by counsel, the lawyer is most often the drafter of the document. Therefore, a strong and compelling argument exists that the disclosure statement is privileged, and the defendant cannot compel disclosure.
In United States ex rel. Bagley v TRW, Inc. (2003, CD Cal) 212 FRD 554, 56 FR Serv 3d 638, the Court, in denying the defendant’s motion to compel, held that the disclosure statement was prepared by the relator (whistleblower) and her counsel is opinion work product pursuant to Fed. R. Civ Pro 26(b)(3) since such information are mental impressions, opinions, conclusions, legal theories.
The Court further held that, disclosure of the disclosure statement to the government did not operate as a waiver of work product protection.
However, although criticized by other courts, court in United States ex rel. Bagley v TRW, Inc. (2003, CD Cal) 212 FRD 554, 56 FR Serv 3d 638, held when a relator used the disclosure statement to refresh his recollection under Rule 612 of the Fed. R. Evidence before testifying in his deposition, the relator was required to produce the disclosure statement to the government.
Navigating the False Claims Act can be difficult, there are many potential potholes to avoid. That is why it is important to speak with an experienced whistleblower lawyer.
Contact Miller Law Group for a free consultation, or call 919-348-3461.