Show Me the Documents!
As various news outlets have had a chance to review and report on a “trove of internal Facebook documents,” the public can see and understand the issues that drove Frances Haugen to blow the whistle on her former employer, Facebook, to the U.S. Securities and Exchange Commission. Haugen reportedly obtained the documents she submitted as evidence of Facebook’s knowledge of its platform’s harms by taking photos of the company’s internal social network with her phone.
Under the SEC whistleblower law included in the Dodd-Frank Wall Street Reform and Consumer Protection Act, Haugen has some protection against retaliation for reporting the tech company to the government (though leaking documents to the press is another matter). The SEC can and has taken legal action against employers who retaliate against whistleblowers.
Why is documentation so vital to a whistleblower’s case? Under the False Claims Act, the whistleblower or relator does not need to prove that there was intent to defraud the government, but a whistleblower does need to prove that fraudulent activity occurred, that the company or people involved knew the conduct was fraudulent, that a claim for payment based on this conduct was made to the government, and the activity was material or influenced the government’s payment for the fraudulent activity. Whistleblowers play a critical role in using their industry knowledge to help the government investigate fraudulent activity.
To prove white-collar fraud, the prosecutor will need documents—lots of documents—also known as hard evidence. And companies create lots of documents, including electronically stored information such as email, text messages, and Slack. Normally, employees who become whistleblowers have access to many documents in the normal course of their workday. Further, whistleblowers under the False Claims Act are required by law to produce substantially all material evidence and information.
Whistleblowers need to speak with experienced counsel to discuss the types of documents they have access to and whether they should take those documents to share with the prosecutors as evidence of the fraud allegations. Extreme care will need to be taken with regard to all company documents, but especially documents that may involve attorney-client privilege of the company, trade secrets, personally identifiable information (PII) such as social security numbers, and HIPAA.
As Partner Renée Brooker commented on the Facebook whistleblower case, “Facebook should not be singled out as a lone actor. Big Tech needs to be held accountable and insiders can and should be encouraged to come forward and be prepared to back up their allegations with hard evidence sufficient to allow governments to conduct appropriate investigations.”