Unfortunately, whistleblowers who fight fraud under the False Claims Act (FCA) cannot remain anonymous.  However, their identities can be protected while the investigation is underway.  Importantly, the whistleblower’s identity will always be known to the government.  Whistleblowers are required to disclose to the government, “substantially all material evidence and information” in their possession.  31 U.S.C. § 3730(b)(2).  The whistleblower’s identity is a critical aspect of this disclosure, as it allows the government to evaluate the whistleblower’s knowledge and credibility.

Despite this disclosure, the whistleblower’s identity need not be publicly disclosed, or disclosed to the Defendant, during the initial stages of the lawsuit.  Uniquely, FCA actions are filed “in camera” and “under seal.”  31 U.S.C. § 3730(b)(2).  This means that court filings are not public documents and do not need to be served on the Defendant.  The only parties that have access to these sealed documents are the whistleblower, his or her attorneys, the court, and the Department of Justice.

The seal period lasts for 60 days and the government may—and typically does—request the court extend the seal during their investigation.  31 U.S.C. § 3730(b)(3).  While under seal, the Defendant is not made aware that there is a lawsuit, let alone the identity of the whistleblower.  Also, if the government decides not to intervene during the seal period, the whistleblower may dismiss the case and it will remain under seal.

While there are methods to protect the whistleblower’s identity during the initial stages of litigation, they are not permanent.  For the matter to continue to resolution, the whistleblower’s identity will eventually need to come out.  However, there are additional safeguards to protect the whistleblower from retaliation once their identity is known.

The whistleblower attorneys at Miller Law Group can help you navigate the complexities of the FCA.  Contact us today for a free consultation or call us at (919) 348-4361.

Additional Resources: 

Recent Developments in Whistleblower Protection

Whistleblower Requirements – The Original Source Rule

5 Things Every Whistleblower Needs to Know