The Ethics of Acquiring Documents Before Litigation
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The Ethics of Acquiring Documents Before Litigation

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Presentation at 2013 Taxpayers Against Fraud Education Fund conference

Presentation at 2013 Taxpayers Against Fraud Education Fund conference

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The Ethics of Acquiring Documents Before Litigation The Ethics of Acquiring Documents Before Litigation Presentation Transcript

  • The Ethics of Acquiring Documents Before Litigation Kathleen Clark Washington University in St Louis kathleen_clark@mac.com TAF Conference 2013
  • Intersection of Legal Ethics & Law of Whistleblowing
  • Documents: Purloined? Privileged?
  • by David J. Marshall and Abigail Cook-Mack
  • Are confidentiality agreements enforceable?
  • US ex rel Grandeau v Cancer Treatment Centers of America N.D. Ill. 2004
  • confidentiality agreement cannot trump the FCA’s strong policy of protecting whistleblowers who report fraud against the government
  • US ex rel Head v Kane Co D.D.C. 2009
  • SEC Dodd-Frank Whistleblower regulation
  • Can’t impede individual from communicating with SEC by enforcing a confidentiality agreement
  • US ex rel Cafasso v General Dynamics th 9 Cir 2011
  • wholesale copying of files admittedly containing confidential, proprietary & trade secret information
  • What can whistleblower lawyers do ?
  • Tell client: “Don’t provide privileged documents”
  • Delegate to client privilege review
  • Lawyer herself reviews
  • Other lawyer in firm reviews
  • Paralegal in firm reviews
  • LPO reviews
  • Predictive Coding
  • Ad hoc
  • After review: segregate & return privileged documents
  • 5 cases Lawyer As Relator
  • US ex rel Doe v X Corp ED VA 1994 Vermont Agency Natl Res v US ex rel Stevens SCt 2000 Bury v Community Hospital Ca5thApp 2002 US ex rel Repko v Guthrie Clinic MD PA 2008, 2011 US ex rel Fair Laboratory Practice Assoc v Quest 2nd Cir 2013
  • US ex rel Doe v X Corp ED VA 1994 Vermont Agency Natl Res v US ex rel Stevens Attorneys “should be encouraged” to use qui tam law suits to expose fraud MD PA 2008, 2011 US ex rel Fair Laboratory Practice Assoc v Quest SDNY 2011
  • $ incentives > confidentiality based on contract
  • $ incentives ? > confidentiality based on professional rules
  • $ incentives confidentiality < based on professional rules
  • US ex rel Fair Laboratory Practice Associates v Quest 2nd Cir October 25, 2013
  • The Ethics of Acquiring Documents Before Litigation Kathleen Clark Washington University in St Louis kathleen_clark@mac.com TAF Conference 2013