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Evidence Review in the Electronic Age

March 31, 2015

Back in the old days of Whistleblower law and filing False Claims Act cases, sometimes lawyers were…well…less scrupulous than they might be today. Today, however, the D.O.J. is watching, Defendants are watching, and procedures have gotten more procedural.  One of the results of this shift is a growing awareness to check if items sent in to the Department ain’t tainted.

Tainted?  you ask.  By what?

Well, where did a document relied upon to make the case actually come from? Was it an email which was in any way privileged?

The government may want to use evidence in a case against the Incorporated Fraud and Rip-Off Corporation of Somerville, Massachusetts (I used to live there, so I know) but if the email was produced in response to a request from the General Counsel of IFROSM, and he wrote on his email “I want this email because I’m specifically contemplating fighting a lawsuit filed by Engulf and Devour, Inc.,”—well, you might just have to do something to segregate that particular piece of evidence out of whatever else is being produced.

Hence the potential taint and in some cases the taint team. The Department of Justice may assign somebody to review documents separately from the group assigned to review the rest of the evidence you may submit in the case. Then Plaintiff’s counsel may need a lawyer to review the documents separately, too. That way, lawyers all get to work for other lawyers in what amounts to a little sub-category of work.  There’s nothing wrong with creating legal work for lawyers in my view, but of course, all this can slow down the actual progress of a case.

It amounts to a pre-privilege review. It’s important in my view not to say to the DOJ things like “we absolutely agree all this information is privileged” when conducting such a review.  You may find out later that the privilege was waived or that the guy claiming to be an attorney for the company really has no such license or in fact has not used the legal degree for anything other than a lampshade for thirty years.

Still, nobody wants tainted evidence to restrict the ability of the government to investigate the case or the ability of anyone to try the case if it ever gets that far.  We can be certain that the defendants will cry “privilege” at any opportunity, so it may even be helpful to know upfront the provenance of important documents so as to be prepared for such a fight down the road.

Now, privilege is its own world of evidentiary dispute. It may ultimately take a while for the documents to become “untainted.” Still, it’s better to know what the status of the evidence is when that is possible to figure. It is just the age we live in that a piece of data can go from one email box to another in a nanosecond and that there are so many lawyers in so many companies floating about to give the information the appearance of a privileged document.

Working hard to protect the evidence that a Whistleblower has is no taint. It’s just an added chore in this new world.