By Stephen A. Wood, a Principal with Chuhak & Tecson P.C. in the firm’s Chicago office. He is the WLF Legal Pulse blog’s Featured Expert Contributor, False Claims Act.

Discovery of the federal government has always been important in False Claims Act (FCA) litigation.  The government, as the party allegedly injured in transactions with the defendant, is usually in possession of documentation relevant to the allegations that the defendant submitted false claims or otherwise caused them to be submitted.  What’s more, federal agency employees are frequently in a position to offer testimony relevant to liability and damages, including testimony potentially helpful to a defendant in these cases.  Yet, discovery of the federal government is never a routine matter.  Navigating the sea of agency Touhy regulations as well as department privilege claims, to say nothing of the government’s disclaimer of a duty to preserve evidence in declined cases, can delay, even obstruct, a defendant’s effort to obtain evidence relevant to its defense in qui tam litigation. 

Given that the FCA imposes treble damages and statutory per-claim penalties that in some instances dwarf damages, as well as attorneys’ fees and costs, and in light of the Supreme Court’s holding that the FCA’s remedial structure is predominately punitive, due process concerns loom large.  It is past time for Congress, or the courts in the absence of Congressional action, to impose upon the government a requirement of automatic disclosure of evidence that is likely to be helpful to the defense in a fashion similar to the requirement applicable in criminal cases pursuant to the U.S. Supreme Court’s decision in Brady v. Maryland.  Such a requirement would help to ensure that defendants are not erroneously punished for violating the False Claims Act or pressured into an unwarranted settlement.