Whistleblower Investigation Process

There are a wide variety of whistleblower investigations that can result from filing a case or a report to a government agency. The most well-known whistleblower investigation process, which also requires the most careful participation by the whistleblower, would be an investigation conducted by the government under the False Claims Act.

If you want more information on what happens during the whistleblower investigative process, contact an experienced whistleblower attorney as soon as possible.

Following the Initiation of a Claim

After filing a case, the plaintiff will meet with the government as the initial part of the whistleblower investigation process. They can discuss the case freely and openly with the government in a setting that is not formal, but still serious. Usually, after that interview or at some point during that interview, the government will tell the plaintiff that they should not go poking around to find more information. It is up to the government at that point to conduct its investigation in furtherance of the allegations in the complaint.

How Long Does It Usually Take to Get Enough Evidence?

The timeframe of an investigation really varies. Sometimes you have a situation where the client shows up with everything all understood and you can do it very fast. And sometimes, the client may disappear, the client may be abroad, the client may not provide you with the information, or the client– I’ve had a situation unfortunately where a client got sick and there was really nothing anyone could do until the client got better and that caused me quite a bit of time. So, that can certainly vary.

How Much Information Does the Government Typically Obtain?

The government may obtain a great deal of information and will often want the plaintiff’s help in understanding what that information means. This is usually because anybody in a position to bring a whistleblower complaint likely has some level of expertise in the area being investigated.

When the government does this, they may require the plaintiff to sign some form an agreement to make clear that the information obtained was obtained by the government and not by the relator and that the relator is offering opinions on it or attempting to help offer opinions on it. Often the government may merely ask an opinion on practices or on legal questions that do not require such a formal agreement.

What is Joint Privilege?

The material the plaintiff submits to the government itself is submitted pursuant to a joint privilege, which makes it usually much more difficult for that type of material to be obtained by the defendant. This privilege will extend to the material the plaintiff provides the government. Ultimately the government has to investigate this information and determine if it will intervene in the case.

That decision is of great importance to the whistleblower filing the case so it can be frustrating that once the case is filed, the plaintiff has to take the back seat and let the government conduct its investigation.

This can be especially frustrating to whistleblowers because they usually want to participate as much as possible in the case and are always looking for a way to help further the whistleblower investigation process.

Lawyers and whistleblowers are always looking for a way to help the government. However, the government maintains control of their investigation and, the False Claims Act makes it clear that it is their investigation.

Duration of Investigating

The time it takes to fully investigate claims can be frustrating for whistleblowers and their attorneys alike. Waiting is not a lot of fun, and most people are sympathetic to this plight, even government officials who have been conducting whistleblower investigations for years. There is no particularly great answer for dealing with it. Nonetheless, it is what happens after filing a whistleblower case. The government has to do its job and investigate the allegations, and as long as the government is investigating the allegations, it is usually in the best interest of the whistleblower to simply let them do so.

Often during the course of these investigations, the government will come back for more information, for more clarification, and for help with legal issues from the whistleblower and the whistleblower’s attorney. This is always exciting because it indicates both some progress in the case and interest by the government in the allegations. If nothing else, it provides the whistleblower and the attorney an opportunity to help with the investigation.

It may involve good cause for a case to have a greater length of the investigation and can be more readily provided depending on complicating factors for the government’s investigation. The court may be more predisposed to allow a continual investigation of allegations, or a judge may have a different opinion about the extended nature of allowing continuous seal extensions. Some courts are more favorable to this than others, and some courts have procedures that are different than others.

A serious set of allegations regarding a major fraud is going to take the government a couple of years at least to investigate and fully examine, and that can complicate the degree to which they need to have an extension and require time to investigate. The bottom line is that a whistleblower investigation can take a while.

Investigations Under Seal

There are limitations to the help a whistleblower and their lawyer are expected to give the government their investigations. Since the investigation belongs to the government while it is under seal, whistleblowers are not free to contact witnesses and discuss the matter, or to attempt to get more information without strict approval from the government. Any such activity could be considered interference with or somehow detrimental to the investigation. However, the fact that the False Claims Act has been spectacularly successful in recovering money for fraud committed against the government and is, in fact, the most powerful whistleblower law does not change how frustrating it can be for whistleblowers to have to sit on the sideline and wait for the government to take action.

What is a Relator?

The Department of Justice follows its own whistleblower investigation process. When a case is filed under seal by the plaintiff in the name of the United States. That person is called a relator or a plaintiff-relator and files the case, but the government as the real party in interest has the right to investigate the claims prior to any other action being taken in the case.

The government conducts its investigation under seal (in secret) and the plaintiff as an individual simply can’t interfere with it. A plaintiff generally can only participate in the investigation, while the government is investigating at the discretion of the government.

The government has asked plaintiffs to continue to work with them and generally appreciates the information that a plaintiff might remember later after having filed the case and any additional work conducted by the plaintiff and their counsel to help with the investigation, but the investigation is the government’s responsibility.

Impact of Breaking a Seal

Because the government is operating pursuant to a seal of the federal court, breaking rules and violating the seal and/or interfering with a government investigation are all serious matters. Relators certainly can lose their right to collect a share of any recovery under the False Claims Act for violating the seal. This is why government officials are generally clear with clients and counsel that it is their investigation and how they expect whistleblowers to act during the investigation.

Role of the Department of Justice

The Department of Justice may rely on investigators either from within the Department and/or depending on the agency which has been victimized, may also employ investigators from government agencies to conduct the whistleblower investigation process.

The Department may call in an investigator from Health and Services, they may call in experts, they may call in the Department of Defense investigators for help. In most cases, these investigators conduct a review of what material they can obtain in an attempt to provide the Department with as much information as possible about the allegations.

Call an experienced lawyer today to learn more about the whistleblower investigation process.