For in-house counsel, “data—whether from medical billing information or information compiled from customer complaints or testing—can be used to proactively identify issues, perform a root cause analysis (if needed) and remediate issues prior to a potential whistleblower case. In fact, by compiling and analyzing the relevant information, an in-house attorney, compliance professional or outside counsel can replicate the same type of analysis that the government would engage in if the company were under investigation.” We added that “the fundamental question is whether the company has set up the appropriate processes and systems to identify, monitor, and analyze data related to key areas where risk of fraud is heightened,” we note in the article. Ultimately, in-house counsel can use data to inform compliance programs and other initiatives.
However, we also note that “the Government may face substantial exposure post-intervention in effectively proving its case” when utilizing data analytics and review at trial given that courts have differing views on the efficacy and aptness of sampling in the FCA space.
The full article, “The Utilization of Data in False Claims Act Investigations and Litigation,” was published by the FBA’s Qui Tam Section in the Summer 2024 newsletter, Turning Square Corners, and is available online.