Organizational Privilege & Organizational Insiders

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Many whistleblowers have access to documents that their employers consider to be privileged. As a practical matter, how should a lawyer respond when her client gives her the employer’s documents, some of which may be privileged? The United States is witnessing a dramatic increase in whistleblower cases as the government has expanded the availability of financial incentives for whistleblowers under Dodd-Frank and the tax whistleblower program. More lawyers are getting involved in the representation of whistleblowers, yet there is little guidance for these lawyers on this tricky issue. This article will provide guidance for whistleblower lawyers and recommend several “best practices” that will enable them to advocate on their clients behalf without undermining the legitimate privilege claims of their adversaries.

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Organizational Privilege & Organizational Insiders

  1. 1. Organizational Privilege & Organizational Insiders Kathleen Clark AALS January 5, 2013
  2. 2. Lawyers Representing Whistleblowers
  3. 3. Whistleblowers
  4. 4. Organizational Insiders Adverse to their Organization
  5. 5. Whistleblower Protection
  6. 6. Other Employment Claims
  7. 7. Financial Incentives
  8. 8. False Claims Act Dodd Frank IRS
  9. 9. Organization’s Privileged Documents
  10. 10. Opportunity for Exposure
  11. 11. Whistleblower has documents that may be privileged
  12. 12. What do whistleblower lawyers do ?
  13. 13. Tell client: “Don’t provide privileged documents”
  14. 14. Delegates to client privilege review
  15. 15. Lawyer herself reviews
  16. 16. Other lawyer in firm reviews
  17. 17. Paralegal in firm reviews
  18. 18. LPO reviews
  19. 19. Predictive Coding
  20. 20. United States ex rel. Frazier v. IASIS Healthcare
  21. 21. ordinary civil litigation
  22. 22. Discovery
  23. 23. Privilege Log
  24. 24. Criminal investigations
  25. 25. Review by non-litigator
  26. 26. Court
  27. 27. Court - judge / magistrate - special master
  28. 28. Taint / privilege team
  29. 29. Organization has opportunity to object
  30. 30. United States ex rel. Frazier v. IASIS Healthcare
  31. 31. Recommendation: separate taint team / LPO
  32. 32. After review: Segregate & Return Privileged Doc’s
  33. 33. Organizational Privilege & Organizational Insiders Kathleen Clark kathleen@wustl.edu AALS January 5, 2013

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