The Potential Risks and Potential Rewards of Recording Conversations to Use as Evidence of a False Claims Act Violation
Preparing a successful qui tam case comes down to evidence. It is all well and good to tell the government where and how to find supporting documents and records, but there is no substitute for providing that evidence to the government on the front end. Recorded conversations can be some of the most effective and damning evidence a whistleblower can provide, as they give the government a chance to hear defendants speaking frankly and often letting their guard down about their true motives and intentions. That said, the laws surrounding these recordings can differ substantially from state to state and create real risks for the unwary whistleblower.
Understanding One-Party vs. Two-Party Consent Laws
Most people are at least generally familiar with the concepts of “one-party” vs. “two-party” / “all-party” consent laws, though they may not know precisely what those terms mean. The short version is that in “one-party” states, it is legal to record a conversation so long as at least one participant consents to the conversation. Generally speaking, that means that within those states, it is legal to record your own conversations. In other states, you must get the consent of the other participants as well. However, the precise rules can be more complicated than that. A further complication—particularly in the age of cell phones—is even knowing what states other participants are in at the time of the call and which states’ laws apply.
Why Recording Laws Matter in False Claims Act Cases
Violating these laws can have real consequences for the unwary whistleblower. In some states, recording someone without consent can actually constitute a felony. And even setting aside possible criminal repercussions, relying on an unlawful recording to support a qui tam complaint might jeopardize your ability to serve as a whistleblower and could also subject you to sanctions from the court or a civil lawsuit from the defendant.
These are all good reasons to consult with an attorney before making any recordings to support a qui tam case. Such recordings can be incredibly powerful evidence, so it is important to know when and how best to use and create them.
Barrett Johnston Martin & Garrison, PLLC, is committed to representing whistleblowers throughout the country. If you have information or questions regarding a potential case of health care fraud, FCA violations, or kickback schemes, schedule a free and confidential consultation with our firm.
