Whistleblowers play a crucial role in exposing and addressing misconduct within organizations. Gathering evidence is a key aspect of their role as it substantiates their claims, enhances credibility, and provides a foundation for investigation and corrective action.
Do it the right way and you can stay safe, protect the public, and gather your reward.
The Dos and Don’ts of gathering evidence.
Do gather evidence of the misconduct: It is essential that you be able to describe and document the misconduct you have seen. The evidence you gather also can substantially impact whether a government agency like the Department of Justice decides to pursue it.
Do NOT gather privileged information: Never collect anything that is labeled as or appears to be attorney-client privileged documents or attorney work product. The primary risk is that you won’t be able to use that information. If you have provided privileged information to your attorney, they may not be able to represent you at critical stages of the case.
DO know what information you can get: There are several protections for whistleblowers to gather evidence. HIPAA offers an exception that permits an employee to disclose information, including personal health information, to an attorney retained by
or on behalf of the workforce member or business associate for the purpose of determining the legal options. 45 C.F.R. §164.502(j)(1). There are similar exceptions in the Securities Act and the Defend Trade Secrets Act.
Do NOT gather documents if you are a former employee: Don’t do it. It’s illegal. Don’t attempt to log into one’s former email, databases, social media, or any other stored data or communication. Title II of the Electronic Communications Protection Act (ECPA), the Stored Communications Act, 18 U.S.C. §§ 2701-12 (SCA), protects certain electronically stored communications. You could be criminally prosecuted.
DO remember that there’s a way to gather what you need: There’s always a way, but it’s important to color in the lines. Call or email us so we can figure out how to gather the evidence you need.
Gathering of evidence by whistleblowers is essential for the effectiveness of their role in exposing misconduct. It not only strengthens their position but also contributes to the overall integrity, transparency, and accountability within organizations and society at large. Do it right, stay safe, and contact our whistleblower attorneys for a free consultation if you have any questions. Vivek Kothari is a former federal prosecutor who represents whistleblowers in qui tam cases. For a free consultation, you can contact Vivek at 503-274-7425 or firstname.lastname@example.org.