Government Contracts, Investigations & International Trade Blog : Government Contracts Lawyer & Attorney : Sheppard Mullin Law Firm : Bids, Licenses, Awards, Conflict of Interest.

By Robert M. P. Hurwitz

A good internal investigation gives equal scrutiny to people and processes. It may be easier to replace or reprimand the “bad apple” employee than to overhaul a system with which employees are familiar and has become ingrained in the operational culture. Nevertheless, it is increasingly vital that companies take a hard look at systems, structures, and processes. A recent opinion from the D.C. Circuit indicates that these organizational elements will be the next battleground in False Claims Act (“FCA”) litigation.
 

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A recent California Court of Appeals case, Coito v. Superior Court of Stanislaus County, __ Cal. App. 4th __ (March 4, 2010), highlights an important discrepancy between state and federal protection of attorney work product as it applies to witness statements. While the federal rules and case law support a qualified privilege with regard to such statements (requiring a showing of substantial need to permit discovery), the law applicable in state courts may differ. The court in Coito, as further discussed below, followed a line of California cases that place witness statements outside of the attorney work product doctrine.
 

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