Many whistleblowers have access to documents that their employers consider to be privileged. As a practical matter, how should a lawyer respond when her client gives her the employer’s documents, some of which may be privileged? The United States is witnessing a dramatic increase in whistleblower cases as the government has expanded the availability of financial incentives for whistleblowers under Dodd-Frank and the tax whistleblower program. More lawyers are getting involved in the representation of whistleblowers, yet there is little guidance for these lawyers on this tricky issue. This article will provide guidance for whistleblower lawyers and recommend several “best practices” that will enable them to advocate on their clients behalf without undermining the legitimate privilege claims of their adversaries.

1. Organizational Privilege
&
Organizational Insiders
Kathleen Clark
AALS
January 5, 2013

2. Lawyers
Representing
Whistleblowers

3. Whistleblowers

4. Organizational
Insiders
Adverse
to their
Organization

5. Whistleblower
Protection

6. Other
Employment
Claims

7. Financial
Incentives

8. False Claims Act
Dodd Frank
IRS

9. Organization’s
Privileged
Documents

10. Opportunity
for
Exposure

15. Whistleblower
has
documents
that may be
privileged

16. What
do
whistleblower
lawyers
do
?

17. Tell client:
“Don’t
provide
privileged
documents”

18. Delegates
to client
privilege
review

19. Lawyer
herself
reviews

20. Other
lawyer
in firm
reviews

21. Paralegal
in firm
reviews

22. LPO
reviews

23. Predictive
Coding

24. United States
ex rel. Frazier
v.
IASIS Healthcare

25. ordinary
civil
litigation

26. Discovery

27. Privilege
Log

28. Criminal
investigations

29. Review
by
non-litigator

30. Court

31. Court
- judge / magistrate
- special master

32. Taint / privilege
team

33. Organization
has
opportunity
to
object

34. United States
ex rel. Frazier
v.
IASIS Healthcare

35. Recommendation:
separate
taint team / LPO

36. After review:
Segregate
& Return
Privileged Doc’s

37. Organizational Privilege
&
Organizational Insiders
Kathleen Clark
kathleen@wustl.edu
AALS
January 5, 2013