Litigation in the age of the Internet

Top trial lawyer Reuben Guttman considers the use of emails and social media postings as evidence and how it is changing the nature, and possibly the outcome, of cases.

On the morning of 18 December 2015, the New York law firm of Kaye Scholer still had not taken off its website the biography of partner Evan Greebel, who, along with Turing Pharmaceutical CEO Martin Shkreli, had been indicted for securities fraud less than 24 hours earlier by the US Attorney for the Southern District of New York. By sundown, the biography was gone. Those wanting to learn about Mr Greebel could still view his LinkedIn page, which showed one ‘endorsement’ for his skill in private equity. That endorsement came from none other than Martin Shkreli.

For his part, Mr Shkreli’s life is more of an open book, with posts on LinkedIn, Facebook and Twitter and lengthy livestreams on YouTube. His LinkedIn page shows endorsements from approximately 100 individuals, whose detailed biographies also appear on the site. His tweets and retweets are revealing. Re-tweeting Bloomberg Press on 16 December, Mr Shkreli posted: ‘Wu-Tang loving Turing CEO Martin Shkreli is really good at short selling.’ Re-tweeting XXL Magazine on the same day, he wrote: ‘Martin Shkreli, who paid $2 million for the secret Wu-Tang album, says he’ll bail Bobby Shmurda out of jail.’ Now there’s an irony!

The New York office of the Federal Bureau of Investigation also cannot resist social media; it too has a Twitter account. On 17 December, it posted: ‘BREAKING: no seizure warrant at the arrest of Martin Shkreli today, which means we didn’t seize the Wu-Tang Clan album.’

Not hip enough to have heard of Wu-Tang? No problem, Wikipedia can tell you that it the Clan is an American hip hop band from New York. By the way, the band also has a Twitter account. And Bobby Shmurda? He’s a rapper from Brooklyn whose biography is on Wikipedia and who, like Shkreli, tweets whatever comes to mind.

With about one hour of internet surfing, an FBI agent can come up with a list of witnesses to interview, gain insights into the mind-set of criminal targets and even get a rough sense of who is communicating with whom. In the age of the Internet, the lives of witnesses and targets are to a certain extent an open book.

Federal agents undoubtedly looked at this very public information when crafting document subpoenas and conducting witness interviews, which allow penetration well below the surface of public banter.  And what do the document subpoenas turn up? Thumb drives loaded with emails!

Undoubtedly, it is the communications memorialised in emails that allowed the Justice Department to craft a detailed indictment alleging the who, what, when, where, and how of the criminal conduct. In a federal district court in the US, emails transmitted by a ‘party opponent’ (in this case the defendant) can be admitted into evidence as long as they are authentic, which means that they are what the purport to be: true and correct copies of the emails.  In US v. Shkreli, it is possible that federal prosecutors can make the case on the documents alone. Electronic communication and social media memorialise events in real time and statements made in these communications can be more insightful and convincing to a jury than oral testimony recollecting prior events. Times have changed since the days when handwritten drafts were given to a cleric to type. That process took spontaneity out of the mix.  These days, trial lawyers comb through electronic databases reviewing emails that have not been filtered through drafting and editing. It is an age where we say what is on our mind, press a button and transmit information with typos, wit, and sometimes wisdom, but always with stream of consciousness. The ability to use emails as evidence is perhaps only second to playing recordings of verbal or videotaped exchanges. For the attorneys and investigators in US v. Shkreli, it is just another day litigating in the age of the Internet.

Reuben Guttman is a prominent trial lawyer and founding partner at Washington, DC-based firm Guttman, Buschner & Brooks.

Article also available at The Global Legal Post.

This article is Part I of a series. Learn More at the National Institute for Trial Advocacy.

Recommended Reading: United States ex rel. Rodriguez v. Hughes, et al., Relators Version

US ex rel Rodriguez v Hughes et alby Paul J. Zwier, Reuben Guttman, Matthew J. McCoyd, Alexander G. Barney

The three case files of United States ex rel. Rodriguez v. Hughes, et al.… explore the suit brought by Juan Rodriguez, a prominent engineer, who acted as a whistleblower against his employer, Hughes Aircraft, for violations of the False Claims Act.

Richard Hughes (CEO of Hughes Aircraft) learned that the United States Department of Defense (DOD) was looking for a new helicopter to provide to the Mexican government as part of the United States’ Mérida Initiative, which provided Mexico resources to help it fight its war against the drug cartels. Hughes, on behalf of Hughes Aircraft, entered into a sole source contract with the DOD. Hughes was favorably positioned to do so as it was the sole manufacturer of the Screaming Eagle helicopter S-70, the model the DOD was seeking to purchase.

Rodriguez’s employment background put him in a position to ascertain whether his employer, Hughes Aircraft, was making false claims to the DOD. Initially, Rodriguez had been employed at Sikorsky Aircraft Inc., a predecessor of Hughes, working in the design and manufacture of the first Screaming Eagle helicopters. Later Sikorsky Aircraft was bought by Hughes Aircraft. During his tenure at Hughes, Rodriguez had designed and retrofitted early versions of the Screaming Eagle helicopter. When retrofitted with heavy missiles, one of the first versions, the UH-A, suffered cracks on landing. Accordingly, metals intended to help crash-proof the helicopter were added to the design. Hughes also started to employ Magnaflux testing to ensure that later versions of the Screaming Eagle did not have subsurface cracks.

Rodriguez claims that he saw cracks in the cabin of one of the Screaming Eagles Mexico helicopters, and that he also saw workers welding over the cracks. Rodriguez claimed that he considered the welding over of cracks in the cabin of the Screaming Eagle a “cover up” of the failure to conduct testing and thus an act of fraud—passing on defective helicopters to the governments of the United States and Mexico.

Available on line at Barnes & Noble.

Government By Contract: The White House Needs Capacity To Account For The Legacy Of 20th Century Reform

By Dan Guttman

Signature priorities of the Bush and Obama administrations highlighted the deep and oft unaccountable roles of private contractors in the basic work of government, including national security activities and public welfare activities of highest level White House priority. Following 911, the country learned that, in addition to designing and building weapons, much of the work of war fighting is contracted out—through companies like Halliburton, Blackwater, CACI—contractors in the mess halls, on the battlefield, in Abu Ghraib prison. The “roll out” of the Obamacare, the domestic policy signature of the Obama Administration, was jeopardized by the reliance on contractors whose work was seemingly beyond official control. The post 911 dependence of national security cyber intelligence gathering on contractors was punctuated by the ability of a contractor employee—Edward Snowden—to access and release a trove of ostensibly deep national secrets.

Read the full article here.

How a Civil War law forced a local medical group to pay $5.3M

In 1863, at the height of the Civil War, Congress passed legislation to ensure suppliers to the Union Army were not cheating the government.

More than 150 years later, that legislation — the False Claims Act — and its amended derivatives enabled a local worker to challenge the billing practices of her former employer, Hudson Valley Hematology Oncology Associates, resulting in a $5.3 million settlement announced Friday by Preet Bharara, U.S. Attorney for New York’s Southern District.

The medical practice, which treats cancer and blood disorders and has offices in Poughkeepsie and Fishkill, admitted it illegally waived Medicare co-pays for patients and then added those amounts to its bills to the taxpayer-funded health insurance program.

It also admitted it entered billing codes indicating doctors had overseen or administered a procedure, when only a nurse had done so, thereby inflating the bills to Medicare and Medicaid.

The following doctors were listed in the federal complaint and settlement agreement: Ram Kancherla, Ponciano Reyes, Michael Maresca, Lev Davidson, Julia Schaefer-Cutillo, Jeffrey Steward, Gerald Colvin, Tauseef Ahmed, John Nelson, Carmella Puccio, Karen Seiter, Delong Liu, Asim Aijaz and Sheetal Shrimanker.

How those revelations came to light is representative of the growing success of False Claims Act whistleblower lawsuits in health care cases.

Last December, the Department of Justice announced it had obtained more than $3.6 billion in settlements in fiscal year 2015. It marked the fourth year in a row the department had exceeded that total. Health care cases accounted for the largest share of those recoveries, $1.9 billion.

In the case of Hudson Valley Hematology Oncology Associates, the actions were initiated by Lucille Abrahamsen, a Highland resident who served as an accounts receivable representative and filed a lawsuit under the False Claims Act.

Abrahamsen did not return a phone message seeking comment. But her attorney, Reuben Guttman of Washington, D.C.-based firm of Guttman, Buschner & Brooks PLLC, said she contacted the law firm after she became aware of the improper billing practices.

“In this day and age, people who see wrongdoing in the workplace … know enough to see that there are red flags,” Guttman said.

Guttman said his office receives hundreds of calls a year but brings only a handful of cases. Sometimes there is not enough evidence to make a claim. Sometimes there is no wrongdoing. Sometimes there is a violation, but an action can only be brought directly by the government.

After conducting its own investigation, the law firm filed the lawsuit on Abrahamsen’s behalf on April 14, 2014.

“Once we file the complaint, the government processes the complaint and sends it to the appropriate agencies involved,” he said.

That led to a meeting at Bharara’s office, an investigation by the federal health and human services department and finally, Friday’s settlement.

“This is a terrific result,” Guttman said, “and it is an example of how efforts to combat Medicare and Medicaid fraud are now being carried out the provider level.”

Whistleblower Case Results In $28 Million Settlement; Case Is Reminder That Healthcare Fraud Is An Important Election Year Issue

Washington, D.C. — A whistleblower case alleging the payment of kickbacks by Abott Laboratories to induce prescriptions for the drug Depakote, for elderly patients in nursing homes, has resulted in a $28 million dollar settlement with one of the nation’s largest long term care pharmacies, Omnicare.

“This case is a reminder – especially in an election year with healthcare and the conduct of big pharma at issue – that healthcare fraud and waste continues to compromise patient care and drain valuable healthcare dollars,” said Reuben Guttman of Guttman, Buschner & Brooks (GBB) PLLC which represented lead whistleblower, Meredith MCcoyd. In addition to Guttman, the GBB team included Traci Buschner and Caroline Poplin, MD, JD, the firm’s Medical Director.

The case was filed and resolved under the Federal False Claims Act (FCA). That statute allows whistleblowers to bring suit in the name of the government.

According to the complaint in intervention filed by the United States Department of Justice (DOJ), “By knowingly and actively soliciting kickbacks to promote Depakote, Omnicare enhanced its profits at the expense of the elderly nursing home residents it purported to protect. . .”
The government’s complaint in intervention also alleged that “in exchange for Abbott’s kickbacks, Omnicare engaged in intensive efforts to convince nursing home physicians to prescribe Depakote. . .”

Guttman, Buschner & Brooks PLLC, www.GBBlegal.com, is one of the nation’s leading whistleblower law firms. Attorneys at the firm have represented whistleblowers in cases returning more than $5 billion to state and federal governments. For more information on the False Claims Act go to www.whistleblowerlaws.com