Sunday Read: Quality Evidence Makes Quality Tips
Quality evidence is tantamount when considering the potential impact of a whistleblower claim. A hunch or second-hand information will typically not qualify as evidence of wrongdoing or a crime.
In Rules For Whistleblowers: A Handbook For Doing What’s Right[MOU1] , author Stephen M. Kohn, Esq., who is also National Whistleblower Center (NWC) Chairman of the Board, emphasized the importance of discovery as “Rule 33.”
Whistleblowers do not win their employment cases because justice is on their side. Retaliation cases are won and lost on hard evidence, usually obtained through the extraordinary efforts of whistleblowers before they are fired or their attorneys during the pretrial discovery process. Simply being right is not enough. Whistleblowers must prove they are right.
He continues:
Contemporaneous documentation is key… The hard and often tedious work of collecting evidence, saving documents and engaging in extensive discovery is the foundation of a good case. There are no shortcuts.
In this Sunday Read, NWC offers tips for compiling evidence and methods for ensuring it will support a claim. We also explore the role evidence has played in bombshell litigations and some lessons learned from those experiences.
Four Pretrial Tips for Gathering information
1. Don’t Break the Law
It should be noted that while “there are no shortcuts,” whistleblowers should still adhere to due process. Otherwise, they might jeopardize their claim. For example, stealing documents is typically shunned in the whistleblower arena, and sanctions might be imposed on the very person who might be trying to do “the right thing.”
“If an employee breaks the law to prove a case,” Kohn notes, “they have probably already lost.”
2. Use the Legal System Correctly
There are ways to procure documents and evidence from the corporate entity or wrongdoer without having to steal. For example, U.S. law requires a company to respond to discovery requests filed by the whistleblower. This is the most critical phase of the pretrial process.
Depositions. Attorneys (from both sides) will serve depositions to witnesses. The witnesses will either be deposed in-person or provide written responses. Interrogatories are similar, but are addressed to the accused organization or entity.
Document Requests. This helps recover missing documents, as well as those where the admissibility might be questionable. Document requests can also be a strategic move. As Kohn noted: “…If you are trying to maintain confidentiality regarding materials you provided to the government, requesting the same documents from the company may throw them off your track.”
Subpoenas. It’s common for the evidence in question to be store by a third party, which could be a software company, storage facility or consultant, for example.
All of these requests take time, but the whistleblower can take some comfort when they are initiated by a qualified attorney.
3. Follow the Lawyer’s Lead
Whistleblower attorneys have to prove different crimes or violations depending on the act under which the claim is filed. A False Claims Act requires proving fraud, while pollution and environmental crimes require more hard evidence and eyewitness testimony. The attorney has the same goals as the whistleblower — otherwise they would not have accepted the case — but the methods for achieving those goals might not always be evident.
4. Stay Off Social Media.
If we have learned anything from the past 20 years, it is that everything you have ever posted online is still accessible, even if it was done privately or has been removed. When the whistleblower claim is announced (or word leaks) it may not be too difficult for the accused to establish your identity. They may use tactics to intimidate your or tarnish your reputation.
It is generally advisable not to discuss the claim with anyone, online or in-person, to avoid jeopardizing the case.
Visit NWC’s FAQ page for more information on different types of whistleblower claims and the corresponding evidence needed when filing.
Evidence In A Landmark Case: A Lesson in Bravery and Dangerous Methods
The volume and quality of evidence can tell the story of a crime, violation or wrongdoing. We have seen this play out in several whistleblower cases. One of the most famous instances of securing hard evidence occurred in the late 1960s and early 1970s, and had broad worldwide impact that shook the foundations of the American presidency.
Daniel Ellsberg was a former United States military analyst who blew the whistle on U.S. Government misconduct in the Vietnam War by leaking the “Pentagon Papers.” As previously reported.
Referred to as “The Most Dangerous Man in America” by former National Security Advisor Henry Kissinger, Ellsberg’s actions marked a huge leap for informed citizenry in the U.S. and transformed our nation’s political discourse. Ellsberg passed away on June 16, 2023 at age 92.
While employed by the RAND Corporation, a non-partisan American nonprofit global policy think tank that is still active, Ellsberg and colleague Anthony Russo secretly photocopied the 7,000-page study they were compiling known as “The Pentagon Papers.” In the Papers, Ellsberg determined in 1968 that the U.S. government was aware it could not win the Vietnam War, but proceeded to engage and cost the lives of thousands of soldiers and Vietnamese citizens.
Ellsberg and Russo attempted to persuade U.S. Senators to release the papers on the Senate floor, but ultimately Ellsberg decided to risk prison and leak the documents to the New York Times and Washington Postin 1971.
The papers demonstrated how five presidential administrations misled the American people about the Vietnam War, which was at the core of chaos in the country and the world. The release of the papers also coincided with the resignation of President Richard Nixon, and ushered in a new era of transparency in government.
A Note On Reporting or Leaking Evidence
Individuals who consider filing a whistleblower claim are often conflicted about how to proceed. Even after a decision is made to blow the whistle, the reporting method will differ from person to person. And, going to the media is incredibly risky.
Daniel Ellsberg did not seek legal representation before going to the press. Though Ellsberg’s bravery was undeniable, his actions were also incredibly risky and put himself and his family in precarious situations, as detailed by his son, Richard Ellsberg.
Whistleblower protection laws are complex and vary from case to case and agency to agency. NWC advises whistleblowers to consult a lawyer before making moves on their own.
Support NWC
NWC fights to protect whistleblowers who are critical to rule of law. As a 501(c)(3) non-profit our awareness building work is made possible with the support of our generous donors. Please consider donating $50 today to help us continue to educate about the whistleblower claims process and related laws.
This story was written by Justin Smulison, a professional writer, podcaster and event host based in New York.
