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Attorneys – Qui Tam Action – Relator – Conversations with Co-Workers

In this action under the False Claims Act, the relator’s counsel suggested that the relator take notes about his conversations with co-workers, and relator gave those notes to counsel. The court declines to infer from counsel’s receipt of information and suggestion to take notes that counsel directed or controlled the relator’s underlying interactions.

Defendants Duke University and Duke University Health System, Inc.’s motion for sanctions is denied.

The relator, a research analyst in Duke’s pulmonary division, filed this False Claims Act qui tam lawsuit under seal alleging that defendants had falsified and manipulated scientific research data used to obtain federal research grants. These allegations centered on data defendant Erin Potts-Kant purported to collect while working in defendant William Foster’s laboratory in the pulmonary division at Duke.

The lawsuit was filed under seal in Virginia, and the relator was represented by Virginia counsel.

Duke concedes that relators can use information in their lawsuits that “ordinarily flow[s] to them” at work. Duke contends that here, however, Virginia counsel deliberately orchestrated and directed conversations with Duke’s employees and secured Duke’s privileged information in violation of the applicable professional conduct rules. Virginia counsel deny orchestrating any conversations or misusing any privileged information.

The few cases addressing whether an attorney has committed misconduct by acting through his client indicate that a client is free to act independently in talking with potential witnesses, but ethical problems arise when lawyers cause or assume control and direction over those conversations.

The relator complied with the False Claims Act’s requirement that he keep the lawsuit confidential while under seal. However, the relator continued to work for Duke for more than a year after he filed this lawsuit under seal.

A grant tied to Potts-Kant’s data paid for part of the relator’s salary. He co-authored one paper with Foster and Potts-Kant (among others), and he later helped determine whether some of the data Potts-Kant produced could be replicated. It is therefore not surprising that the relator participated in discussions with co-workers about the Foster lab data.

All of the relator’s relevant conversations were with people with whom he ordinarily had work-related contact, and a number of the conversations appear to have been initiated by his co-workers.

Assuming without deciding that at some point, Virginia counsel learned Duke had retained counsel in connection with the Foster lab data issue, there is no direct evidence that Virginia counsel thereafter caused, controlled, or directed the relator’s conversations with his co-workers. Nor is the circumstantial evidence on which Duke relies persuasive.

Duke relies on the relator’s admission that he regularly reported what co-workers shared with him to Virginia counsel and took notes of his interactions at his counsel’s suggestion. However, there are many legitimate reasons for counsel to ask a client to take notes about what he sees and hears and to provide that information to counsel. Examples include the need for an aid to memory as time passes, insuring that all supporting information is provided to the government as required by 31 U.S.C. § 3730(b)(2), and providing complete discovery responses.

The court declines to infer from Virginia counsel’s receipt of information and suggestion to take notes that counsel directed or controlled the relator’s underlying interactions.

Given that the relator worked for Duke for well over a year after filing suit and the significant interest all pulmonary division employees had in the Foster lab data fraud, the number of conversations the relator had with his co-workers is neither surprising nor suspicious.

There is also no persuasive evidence that counsel sought or used allegedly privileged information inappropriately. The relator did not communicate directly with Duke counsel. Duke has not alleged that the relator obtained any privileged documents.

Moreover, Duke has not cited to any statements in the complaint or otherwise where Virginia counsel made use of purportedly privileged information, much less inappropriate use.

Furthermore, Virginia counsel has been sensitive to attorney-client privilege issues throughout this case, further undermining an inference of misconduct. For example, when Duke inadvertently disclosed a large amount of potentially privileged material in discovery, Virginia counsel immediately brought the matter to Duke’s attention and followed up when Duke did not respond.

Duke implies that it is professional misconduct for a lawyer to fail to instruct a relator-client to walk away or to refuse to listen when co-workers mention anything about their employer’s lawyers, but it has cited no case for such an overbroad proposition.

Motion denied.

United States ex rel. Thomas v. Duke University (Lawyers Weekly No. 003-010-18, 15 pp.) (Catherine Eagles, J.) 1:17-cv-00276. Alan Kleinburd, Alison Brooke Rousseau, Anthony Paul Giorno, Cheryl Sloan, Kristo Consiglio, Mary Dobbie, Patricia Hanower, Rick Mountcastle and Sara Bugbee Winn for plaintiff; Andrew Bowman, Daniel Sullivan, Glenn Walthall Pulley, Gregory Joseph Haley, John Thomas, Joshua Charles Johnson, Matthew Broughton, Michael Finney, Cynthia Kinser, D. J. O’Brien, Daniel Smith, Jeffrey Sexton and Travis Jarrett Graham for relator; Carol Poindexter, Frederick Robinson, James Cooney, John Benjamin Rottenborn, Megan Engel, Michael Preston Gardner, Rebecca Fleishman, Thomas Cullen, Annette Ebright, Eric Cottrell, Richard Glaser, Thomas Norfleet Griffin, Amos Granger Tyndall and Michelle Merck Walker for defendants; Steven Baker for movant. M.D.N.C.


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