The Disclosure Statement is one of two documents—along with the Complaint—that must be filed to begin a False Claims action. The whistleblower must provide the government with a “written disclosure of substantially all material evidence and information . . .” in the whistleblower’s possession. 31 U.S.C. § 3730(b)(2). This statement is provided to the local U.S. Attorney’s Office and the Department of Justice (DOJ). The disclosure statement is critical because it is the whistleblower’s first chance to convince the government to intervene.
This disclosure contains information that was not part of the Complaint. The whistleblower is asserting the government’s right to recover, therefore all information that is not covered by the attorney-client privilege must be disclosed. These statements typically contain exhibits substantiating the whistleblower’s claims. Exhibits may include emails, recorded conversations, medical records, and or billing statements. The disclosure also provides more detailed background information on the defendant than the Complaint does, especially in cases involving corporate defendants. This information is provided to encourage the government’s intervention by illustrating that the law was broken and that damages are collectable.
Unlike the Complaint, the disclosure statement is not a court document, and is not filed with the court. Only government attorneys and investigators have access to this document. The statement does not even become available to the Defendant once the case is unsealed, absent a showing of substantial need and undue hardship. See, e.g., United States ex rel. Bagley v. TRW, Inc., 212 F.R.D. 554, (C.D. Cal. 2003) (ruling that the disclosure statement was protected as work product); see also United States ex rel. Miller v. Holzmann, 240 F.R.D. 20, 22 (D.D.C. 2007) (ruling that attorney-client privilege was not waived when the disclosure was submitted to the government as required by statute).