Whistleblower Discovery Rights: Avoid the Pitfalls and Secure Adequate Evidence

After a lawsuit is filed (and in many cases, before), you and your legal team should be creating a “to do” list of critical documents to demand from the defendant employer. These types of documents are valuable regardless of whether you are suing for retaliation under the Federal False Claims Act or the California Labor Code (LC) 1102.5 and related sections. There is a broad right to discovery as plaintiffs must usually rely on circumstantial evidence. Discovery is not limited to that which is admissible at trial, but may include anything reasonably related to finding discoverable evidence. Do not allow the employer to claim evidence is not discoverable because it is covered by a “confidentiality agreement.”  Your counsel should prepare a thorough list of e-discovery requests and be prepared to retain a computer forensics expert if necessary. California and Federal courts provide for sanctions against employers who do not produce critical documents. A thorough “litigation hold” letter should be sent immediately by your attorney. Here are key types of documents to obtain from the defendant employer:

  1. Employee Disciplinary and Personnel Records. Generally, these are available under California LC 1198.5 on 30 days’ notice. Also ask for payroll records (LC 226) and all writings which you may have signed (LC 426). Seek individual and statistical payroll evidence to show denials of pay, promotions, decreases in pay, running counter to the company’s overall policies of merit, and COLA increases.
  2. All writings comparing your work to those of others similarly situated.
  3. Statistical evidence including employee lists.
  4. Corporate policies and procedures. While adherence to such procedures is not required (this may not be true for employees covered by Collective Bargaining Agreements or Public Employees under Memorandums of Understanding), the failure to follow such policies may suggest an ulterior motive, especially where the policy is regularly followed. Be sure to ask for employee and supervisory manuals, updates, drafts and revisions (including those drafts and suggested revisions not incorporated).
  5. Self-critical analysis documents. See University of Pennsylvania vs. EEOC,493 US 182 (1990).
  6. Attorney-client privileged documents which have been provided to agencies such as the FBI. These may be requested under the Freedom of Information Act (FOIA) (5 USC 552).
  7. Work product documents which are not privileged to the extent they constitute in-house reports.
  8. Documents provided to any other governmental agencies. (If not produced by defendant, consider a FOIA request to the governmental agency. It is not advisable to use FOIA, however, for federal or state false claims due to “original source” conflict. Any documents showing the employer failed to follow governmental recommendations. Documents are relevant to the case and must be produced despite the burden of producing large amounts of documents, but courts may limit discovery to a reasonable number of years. EEOC vs. Lockheed Martin, 2007 US District Court LEXIS 39342 (D. Haw. 2007).
  9. Personnel files for supervisor or other managing personnel participating in the adverse employment action. Williams vs. Art Institute of Atlanta (ND Ga 2006). This should include co-workers who may have harassed the whistle blower. Cason vs. Builders (WD NC 2001). Seek testimony on conduct and character of witnesses. Phillips vs. Berlex Labs.(D Ct 2006).
  10. Deposition of High Ranking Executives. Allowed where this might lead to admissible evidence even though claim is made that executive had no “superior and unique knowledge.” Blanton vs. Biogen IDEC (Sox case). Thoughts and decisions of decision-makers are also admissible.
  11. Prior discrimination complaints against the company.

Do not allow employers to go on fishing expeditions to find evidence to use against your employee/client under the “after acquired” evidence doctrine. McKennon vs. Nashville Banner, 513 US 352(1995). Privacy of internal sources of information given to whistle blower may be confidential. Management Information Technologies vs. Alyeska Pipeline, 151 FRD 478 (DDC 1993).  See our other blogs written by our Los Angeles based employment law attorneys who specialize in whistleblower litigation.

We are one of California’s leading employment law firms and regular players in the small world of Federal False Claims litigation. For years, we’ve accepted referrals and pay appropriate referral fees.  This blog is educational in nature only. Let’s chat confidentially about your case.  Please call 877-789-9707.