Mindful Discovery: Leveraging what you have from Investigation through litigation
The civil discovery process is inherently asymmetrical for most legal disputes. The plaintiff needs the evidence that the defendant possesses to prove their case. This asymmetry requires that the plaintiff craft written discovery requests and negotiates a discovery plan, ESI protocol, search methodologies, etc. while largely in the dark as to what exists and how to find it.
Whistleblowers, however, are different from most other plaintiffs. They are often (albeit not always) business insiders, who proactively investigate their claims and collect the receipts needed to build their case under a more rigorous pleading standard. Whistleblowers, or relators, are uniquely in-the-know.
Relator’s counsel should leverage their knowledge not only to draft their complaint, but also to proactively design a more robust, targeted, and effective investigation and discovery process.
Disclosures with roadmaps
The False Claims Act requires relators to submit to the U.S. Government a “written disclosure of substantially all material evidence and information” upon filing their complaint. 31 U.S.C. § 3730(b)(2). Relators often describe relevant documents in these disclosures that the Government should seek during its investigation. Spending time to ensure these disclosures identify key information can help the Government in crafting its investigation strategy.
For example, consider using the relator’s unique knowledge to identify the defendant’s relevant data sources. Does the defendant communicate internally using more than just emails? Do its employees use Microsoft Teams, Slack, or even text messages for business? Where else should the Government direct the defendant to look to identify and produce information responsive to its Civil Investigative Demands (“CIDs”)? Similarly, if your client has concerns about the length of the defendant’s document retention policies and the likely destruction of relevant evidence, consider articulating these concerns upfront in the disclosure.
Disclosures also often identify key witnesses. Counsel should consider explicitly highlighting which of these people are most likely to be the key custodians of record for the evidence most relevant to the relator’s case. The best custodians tend to be key decision makers and the key participants to the fraud. Administrative employees, such as a key player’s executive assistants, may also possess a treasure trove of information and should be considered as possible custodians, particularly if their bosses tend not to keep their own paper trails. Such information can help the Government if or when it negotiates a search protocol with the defendant relating to its CID.
Similarly, relator’s counsel should consider including in the disclosure targeted draft document requests intended to uncover the core documents for the case. This can be particularly helpful when your client has a specialized or technical understanding of the documents sought and therefore can provide guidance to the Government on how to properly frame the request to ensure the correct information is sought and obtained.
Counsel can also identify potential search terms that the Government may wish to propose in a search protocol relating to the company’s responses to a CID. To ensure that the suggestions are truly helpful, you should vet and verify possible search terms using the relator’s existing documents and data sources. Consider analyzing the relator’s documents to identify relevant policies and documentation, as well as how key players talk about or describe relevant information. Look for common acronyms, slang, shorthand, or code names (i.e. for new products or acquisitions) that may be otherwise overlooked.
If the relator comes to you with voluminous documentation, analytic tools, such as data visualization, on a document review platform can assist with crafting and verifying possible search terms and custodians. For example, clustering can be used to locate key topics, categories, or commonly used terms. Visualizations of communications can help you identify pertinent dates or participants. You may run proposed search terms through the data set to validate your selections or to uncover previously unidentified issues. Consult your eDiscovery vendor to determine the best method for a particular case.
If the relator does not have the luxury of time to craft such robust disclosures, this same information can always be supplied to the government during the investigatory process. One natural opportunity to make these proposals can be following the relator’s interview.
Leaving no stone unturned in declined cases
Similar tactics to the above can also be used to a more extensive degree during the discovery phase of litigation in declined cases. Take advantage of what the Government learned during its investigation and build from it.
You will want to obtain every document the defendant gave to the government during the investigation phase as soon as possible. Some defendants will timely produce this file as part of their initial disclosures under Fed. R. Civ. P. 26(a)(1). Consider proactively asking your defendant to do so during your Rule 26(f) initial discovery conference. The information has already been reviewed, screened for privilege, bates branded, and produced to the Government so there is no good reason for a defendant to delay producing these documents to a relator.
You will also want to request from the Government or the defendant any ESI protocol or search negotiations reached during the investigation. This will help you understand the scope of the investigation production— i.e., the topics considered, the time frame targeted, the data sources searched, and the custodians and the search terms used.
With this information and initial production, you can use your document review platform and available analytics to review the production, identify production gaps, and craft follow-up document requests. Were there very few communications produced during a key time period in the fraud, for example? Do key players emerge in hot documents who were not identified as custodians previously? If they appear truly important, you may want to ask the defendant to collect data sources from these people to and re-run their search terms to hopefully uncover more key documents responsive to your discovery requests.
The investigation documents will allow you to similarly identify additional keywords (e.g., code names or acronyms that were previously unknown) that should be used as keywords to locate responsive documents. They may also reveal additional data sources that were not previously considered (e.g, a relevant email mentions text communications between key managers but text messages were not produced to the Government). If voluminous, additional tools exist to help you understand the documents quickly. For example, entity analysis, which can help identify pertinent places, dates, proper nouns, social networks, etc., or sentiment analysis, which can identify the tone of communications.
Spending time to understand what was already done (and perhaps more importantly, what was not done) so that you can expand your discovery arsenal in a targeted way helps leave no stone unturned and perhaps will reveal information or documents potentially outside the scope of the Government’s investigation but within the scope of the relator’s case. Work smarter, not harder!
This blog was written by Rebekah Bailey, a Partner at Nichols Kaster. This blog was edited by Darth Newman, the Founding Attorney at the Law Offices of Darth M. Newman.
