“Sharing of information between the Government and the relator does not waive either the attorney-client privilege or the work product protections.” FALSE CLAIMS ACT: WHISTLEBLOWER LITIGATION, §9-4(a)(5), attached as Ex. 1.
The United States District Court for the District of Columbia has now expressly ruled that information shared between the relator, his counsel and the United States is protected from discovery by the joint-prosecutorial privilege. The joint prosecutorial privilege is the Government/relator counterpart to the recognized joint defense or common interest privilege. It is grounded in the language of the False Claims Act itself which empowers the relator to bring the action “in the name of the Government” and awards the relator a percentage of the proceeds recovered by the United States. Such statutory language make clear Congress’ intent to align the interest of the Government with that of the relator.
By law, a whistleblower must file the qui tam Complaint under seal. However, the Complaint is but one of the two documents a whistleblower must file. The other is an evidentiary disclosure. I learned that reading the law journal article authored by Tony DeWitt, the Rigsbys’ former counsel:
Although the filing of the document is jurisdictional and the Act requires that one be filed, it is important to remember that the purpose of the filing is to make the government aware of what evidence the relator has, and what other evidence might be available should it decide to intervene in the case.
Little wonder then that Branch’s opposition states “the written disclosure statements comprise… counsel’s mental impressions, conclusions, opinions, and legal theories, they constitute opinion work product and are not discoverable.” Conversely, in Rigsby, Continue reading “qui tam Olympics: Branch throws javelin to protect Disclosure Statement; Rigsbys got speared when Judge Walker gave their Disclosure to State Farm in the McIntosh case!”