morning your honour's jeremy creighton and i and it's my honor and pleasure to appear before you today to address some important issues regarding the key town provisions of the false claims act i represent the key town plaintiffs dr patricia hate the relator who is and from phoenix arizona and you're going to zation in defense of animals which is a marine based nationwide organization dr elliot katz is the president and he's present in the courtroom today that are set forth in the statute and the second is whether or not dr hate qualifies as an original source of the information upon which the allegations are based to help the court answer this question i think it's important on whether or not the relator has taken advantage of the government's own investigation and didn't contribute anything to that investigation there were two very important changes in the jurisdiction from the preeti six law to the post eighty six law prior to nine hundred eighty six as this court has talked about many times the jurisdictional bar was based upon government knowledge if the government had possession of the government would often have information but not bring an action for various reasons political will lack of resources there could be information in the possession of the government but the important provisions of the false claims act would not go forward the second problem is that often the government had knowledge as a result of the relator zone activity if the relator was the one that disclosed the information to the government then the government had the information and the case was barred the one nine hundred eighty amendments changed both of those provisions now the addition of the original source provision deals directly with the problem that was raised in dean as this court knows the wisconsin case and gene involved the state of wisconsin who had warned the government of the allegations of the product and the court seven circuit there determined that because the government wasn't formed the federal government wasn't informed by the state the state could not be a real leader and in the ninth circuit and pettitte this case reached a similar conclusion but if congress intended only to rectify the situation and dean they could have kept the government knowledge bar and ju added the original source it could have simply said that the case was part of the government has the knowledge but we're going to create an exception for the original source such as the state of wisconsin and dean but congress chose not to do that it not only added the original source exception but it changed the government knowledge bar to a public disclosure bar and therefore it's clear that congress wan actions to go forward even when the government had knowledge and even when the relator did not provide any valuable information as long as that information was not in the public with public disclosure and changed it from government knowledge we think and we argue in the briefs that it's very clear that what they're trying to get to are the parasitic lawsuits the has case when a later simply relies upon the investigation of the government and uses that investigation the formulate that relator is own case it's taking advantage of the government's claim and taking advantage and riding the coattails the government's investigation now when we talk about writing the government coattails investigatory coattails it's clear in this case they act there was no public disclosure in the news articles and in this side note this court has not yet addressed whether or not a toy request is sufficient to trigger the bomb now the reason why i started with the media was because it was clear the media didn't contain the allegations about fraud so the only way you can get there is by looking to the fact that the relator in this case requested documents through point and in that request the document was produced but it wasn't a government investigation i'm having trouble finding it they're not in the record because they're not relevant to this particular dispute the information that the defendants moved on that said there was public disclosure the only information relevant was the grant application the other information was a summary of the of the grant of the product the abstract and also some additional information regarding funding but it didn't disclose any of the information  defendants claim trigger the bar and that is the representations that that the defendants made to the government to get the federal funding so that's why the only issues that are in the in the record are the gran makes that request and he's under or she's under no obligation to distribute that anywhere else nobody else is required to get that or has access to that but more importantly any more general public disclosure or any legislative history or any clue as to what congress meant by that didn't mean i mean public can mean you know not outside the government or it can mean to the world  you can mean to anybody who asks for it someone isn't mean well your honor the best place to start with that is the language itself it didn't say a disclosure the word about documents that are disseminated to the public now it's clear that there are many documents out there that the government does publish when they do reports when they do investigations when they do audits they have the option of sending it to the government her doc you know publishing office and these documents get published and people can go online and they can find these documents or they can read them as they come out of the agencies on the other hand there are often many audits or reports that are being made none in this case but there are that the government makes that they don't make public that doesn't mean that they can't be disclosed to various individuals including somebody who makes a request for those documents but then it's not a public disclosure that is not  then the common knowledge just mentioned anybody could proceed on it but it wasn't anybody were concerned that the government is a little odd because the government if the government has the information they can proceed on it if seventy five have other people have that why is get information by filing a boy request or maybe even filing a suit in order to get that for you and cremation but in fact it has to do with that person who does nothing but read information that is generally disseminated to the public and therefore is parasite simply repeating things that are already available i think it has to do with the fact that not somebody who can pieces things together from disparate areas but the person who can just sit there and read a publicly disclosed document and come up with the allegations to take advantage of the government's case i would like to point out the court to one additional supplementals authority on this very point that i submitted to the court today and the opposing counsel and that's the district general dynamics and there's a good analysis in that case about the circuit split but on the foyer issue i'd like to make three points one is as a practical matter the government does not want or need to raise the bar when a key template that's used to spoil in fact to perform a meaningful investigation including obtaining documents before you file a lawsuit or before we file a lawsuit be able to make clear requests they're not going to be able to ask for the basic documents that help support the allegations that they wish to prove so as a practical matter what you're doing if you say the foyer request alone incomplete disclosures of the department of justice and they will only have sixty days to make up their mind as to whether or not to intervene in the case and take it over without the relator having access to lawyers documents it hamstrings them and it makes the but nonetheless these are the authors of the act and we ask that the court consider their commentary as any other commentary would be interested but the interesting to this point and i'd like to read to the court on this particular question documents such as those attained from the freedom of information act request we believe that of a later who uses their education training experience and talent to uncover approximate scheme from publicly available documents should be allowed to pieced gather facts exposing across from separate document doesn't this discussion really go more can the original source issue and are you going to address that my understanding of what you just read this is that there are real discontent is with the narran is something original source well when i when i was quoting this but when you read the statement it's not in the original source section and in fact senator grassley and representative berman do go on to talk about the original source but the passage i just read deals not with the original source issue although i understand the rationale that they used seems like it's talking about the original source question but but it is in the section of their letter and it is and it is consistent with the out analysis believe and i've asked the court look at it it's deals with the public disclosure and not the original source but even more important the issue here is in this case the only request did not produce an investigation there was no government investigation audit report or hearing it's unlike the case in lockheed or the case in schumer where the documents that were being sought by florida were d investigation could in fact lead to original source and it doesn't mean that they have to have witnessed of the actual fraud what they have to have this direct and independent knowledge of the information and this court has fashioned through its negative analysis of cases that didn't qualify a very good understanding and this case provides a way for the court to decide on the other side in other words cases where the information is not direct is when the relator relies upon allegations that were told by somebody else when the relator and that's part of what happened here isn't oh no you're not there are people who tell her stuff that's basically is in the grand application not one individual told her this is an area that we should look into for fraud or false claims what she did was go to the wrong material the records the the people who kept the dog statute was amended to make clear that in some circumstances even where the relator gives the information the government where government the reason the government has the information is because of the relator are nevertheless going to allow the claim we know because the court has said a number of times that the purpose of the amendments was to try to bar claims based on information that's knowable or known to the government so what is this public disclosure bar all about and i think the answer is that why right here we have me the ex was in the government's files but why was not and so how does that help the situation well in the foyer context remember what's happening in the foyer context investigations independent by over that show that what was in this application was false so it seems to me that it's not a public disclosure number one and number two it's not like an investigation it's not only porn it's not anything the children the government knew that they had been to two points i think there maybe are t questions there the first is what do we make of the fact that in the foyer disclosures only the allegedly false state of affairs occurred if you're just holding the grant application as court noted you don't know appeared on twenty twenty and then brought a claim and the defendant said sorry that's been publicly disclosed you've publicly disclosed it and this court said that's correct doesn't that if that's going to be so since the don't necessarily think that what i mean the the reason that the bill court held the way it did was because it said we need to come up with an understanding of the public disclosure bar that doesn't render the original source provision sort has no work to do write clearly the original the other the other whether it should be narrow or broad and it's very specific law in the circuit and what original source means there are at least two requirements that we that we've brought to the courts attention here the directness requirement the independence requirement i think the independence requirement is the easiest way to decide this case everybody agrees that in order for an original for relator to be an original source it must have independent knowledge of the allegations or of the information on which i had this information she done her own independent investigation and so she says to herself based on that the government shouldn't have granted that application because of all the stuff there was just no basis for what the doctor was doing so then she says i'm just going to verify that there must be something wrong in the grand affirmation so i asked for then puts my case together everything on which if the investigation that she performs relies entirely on documents and information that was second hand there is absolutely none of that that she had taint firsthand there are only so much she says otherwise in or deposition i don't know how that can possibly be because she did not even know about the research or the grant application after it had been complete until she knew that the government had made a grant she didn't know that well i'm not even sure that she knew that until she meets with some protesters outside of a s u two and a half years later or two two and that i want the court to draw negative inferences from the cases that it declined to find the original source and i think the reason he says that is because there are only two published cases from this court in which the courts found somebody to be an original source reported that she had first hand knowledge of what the document showed she wasn't good enough to somebody else she read the documents herself yes but you know in that sense somebody would have for if i interviews a third party i would under that definition of first hand then have firsthand knowledge of what that person told me but you know clearly from at least three cases in the circuit that's not really firsthand knowledge that's taking information that somebody else has and i guess maybe what the on documents and talking to people and the court held neither of those first hand both of those are second hand and direct there are two cases from other courts that i think are particularly after the birth case from the eighth circuit reviewed allegedly fraudulent payroll records interviewed a number of employees and the court said all of this information is not direct none of it's all secondhand none of it's correct this is not an original source a greenberg case even more similar very complicated facts have to do with carbon dioxide royalties and whether the charges are correct charges were being passed on to the government for those royalties the relator looked at for you documents conversations with people at the job site  why carbon dioxide true royalties are worth and the court said no all of that none of that is this is a statute about providing insider whistleblowers with an access to federal courts not people who can take secondhand information and cobble together a claim of fraud from it and both of these cases i think are exactly consistent with the with the devil in case the all can case and the opportunity case from from  i'd also note that what we've been talking about here and i think the investigation questions the hypothetical questions these are about the directness requirement under the original source provision there is a separate independent inquiry that the court must make apart from whether the information the knowledge was direct and that is whether the knowledge was gained independently that is did it priest did the information on which the claims were  it depends i mean for example in this case i imagine it's possible there are any number of people who could have had access to that to the grant application without it having been publicly disclosed you could have a research student in the lab you could have somebody that was reviewing the document for the end i could have somebody who was involved in the research somebody with access to the grant application or any number of possible plaintiffs what we're talking about here jumping back now on back to the for the issue it's a it's a case in which the relator was allowed access to documents by the u s attorney and then tried to bring a false claims act claim based on that information and this court this issue extensively and what it said is if the allegations in the complaint do not benefit the government because the government already knew about them then the public disclosure bar bars jurisdiction unless the party was an original source and i think what the court is saying in one case is that we're not going to get into the question about where the relator got the information if it's already been publicly disclose solicitor general's brief on that topic where the court found that you don't have to have you don't have to be an insider and that so long as you're not learning the information from another government audit or government report as long as you do your own