Spurred by treble damages, substantial penalties, and lucrative relator awards, litigation under federal and state False Claims Act (“FCA”) statutes has exploded in recent years. Much of that explosion stems from aggressive and creative legal theories that challenge controversial industry practices or even well-known loopholes or waste in government policy. Evidence from governmental entities can be critically important in litigating these FCA claims. Unique aspects of False Claims Act actions, however, can aggravate the risk of losing this important evidence, leaving the parties, judges, and juries without the evidentiary record necessary to equitably adjudicate these disputes. Defendants can face the risk of treble damages, substantial penalties, or worse without the opportunity to build their defense before evidence is destroyed. Calling on his first-hand experience litigating FCA cases, the author highlights the risk of government spoliation in FCA cases and provides recommendations for courts and counsel to address this escalating problem.
David S. Torborg,
The Dark Side of the Boom: The Peculiar Dilemma of Modern False Claims Act Litigation,
26 J.L. & Health
available at http://engagedscholarship.csuohio.edu/jlh/vol26/iss2/3