Editor’s Note: Navigating a health care fraud investigation requires more than legal strategy—it demands eDiscovery excellence. In this timely article, authors Giel Stein and Anjali Prasad lay out a detailed blueprint for how health care organizations can proactively prepare for and respond to government inquiries with defensible, well-documented processes. With the U.S. Department of Justice emphasizing corporate cooperation as a condition for leniency, the piece offers actionable guidance for legal, compliance, and IT professionals on building and executing discovery protocols that meet regulatory expectations while minimizing organizational risk. For cybersecurity, information governance, and eDiscovery professionals, this article serves as a practical guide to managing sensitive data under scrutiny and positioning organizations for favorable outcomes in complex investigations.


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Industry News – eDiscovery Beat

Discovery Compliance in Health Care Fraud Investigations

Giel Stein and Anjali Prasad

The Imperative of Corporate Cooperation

The Criminal Division of the U.S. Department of Justice under President Trump has prioritized investigating and prosecuting health care fraud and emphasized that charging decisions against corporations must consider the willingness of corporations to cooperate with the government.

See Matthew R. Galeotti, Focus, Fairness, and Efficiency in the Fight Against White-Collar Crime, U.S. Dept. of Justice, May 12, 2025 (citing Justice Manual 9-28.300).

To receive cooperation credit, corporations “must completely disclose to the Department all relevant facts about individual misconduct.” Ashish Prasad, Owen Russell, Giel Stein and Michael Sarlo, Cooperation Standards in Government Investigations: Practical Tips, Jan. 15, 2023, ComplexDiscovery.com (citing Sally Quillian Yates, Individual Accountability for Corporate Wrongdoing, U.S. Dept. of Justice, Sep. 9, 2015, at 3-4).

The Department will evaluate the timeliness of the cooperation, the diligence, thoroughness, and speed of the internal investigation and other factors. See Yates, at 3-4.

Navigating Complex Data Landscapes

Health care organizations which are preparing for increased health care fraud enforcement in the coming years would be well-served to focus on their procedures for compliance with government subpoenas and other requests for information. See National Health Care Fraud Takedown Results in 324 Defendants Charged in Connection with Over $14.6 Billion in Alleged Fraud, U.S. Dept. of Justice, June 30, 2025.

Requests for information can call for patient data that is subject to privacy and security laws and regulations, in paper or electronic medical records; third-party payor billing records; coding records; patient coinsurance, deductible and copayment accounting records; and other sources. See Jason Christ, What Health Care Organizations Need to Know About Electronic Discovery – Five Considerations That Should not be Overlooked During Health Care Fraud Investigations, 26 No. 6 Health Law. 18, 19-20 (2014).

These records can relate to Medicare and Medicaid billing fraud, kickback and referral arrangements, prescription drug violations, and a myriad of other federal healthcare crimes.

Strategic Scoping and Disclosure Plans

Corporations that are targets of criminal health care fraud investigations have an important opportunity to help show cooperation by implementing diligent procedures for compliance with government requests for documents and other information. In a cooperative approach, the corporation’s counsel educates prosecutors and investigators on available information and works with them to provide what the government seeks. See David C. Shonka, Responding to the Government’s Civil Investigations, 15 Sedona Conf. J. 1, 6-7 (2014); see also Christ, at 24-25.

The cooperative approach can enable the corporation to narrow the government’s requests, which are often broad, thereby reducing the burdens and costs to the corporation. There are accepted parameters to narrow the scope of a government request for information, such as:

  1. The time-period and custodians subject to search; and
  2. The exclusion of certain data sources from having to be searched, such as instant messages, legacy systems, and archived data. See Shonka, at 9-11.

Counsel for the corporation can also present a discovery and disclosure plan to the government. Such a plan could include:

  1. Staged Production: Production of the most important information first, with an agreement to discuss production of less important information, if necessary, later in the investigation;
  2. Relevance Mapping: Discussion of the issues of concern in the investigation and the relationship of the available information to those issues;
  3. Sampling: Production of sample data to show the government the type of information it will receive; and
  4. Witness Testimony: Production of knowledgeable witnesses to support the representations of counsel in the plan regarding issues in the investigation and sources of information in the company. Id. at 11-12.

Implementing Defensible eDiscovery Processes

To pursue a successful strategy for compliance with government requests for information, it is critical that the corporation and its counsel implement a defensible and documented process for data identification and preservation, collection and processing, search and review (including human review and technology-assisted review), and production (according to the government’s production standards). See Rishi Chhatwal, Robert Keeling, Ashish Prasad and Todd Haley, Electronic Discovery Issues, in The General Counsel’s Guide to Government Investigations, 2024, at 487-501.

The first step is for the corporation that has received notice of the subject matter of an investigation to issue a legal hold to employees and necessary third parties instructing them to preserve potentially relevant information and take steps to implement the hold. See Robert D. Owen and Thomas Y. Allman, The Common Law Duty to Preserve ESI and the Impact of Rule 37(e), in The Federal Judges’ Guide to Discovery, 3rd Ed., 2017, at 93-109. Notice of the investigation can come in a variety of ways from internal sources, such as suspected bad actors or whistleblowers, or external sources, such as contacts from government agencies, auditor flags, or media reports. Counsel for the corporation, along with members of the in-house legal and information technology teams, generally seek to cast a wide net to identify all potential sources of relevant information and assure that the information is preserved.

The process of collection, processing, search, review, and production that occurs after preservation should be implemented utilizing best practices that have been developed over the past 25 years for electronic discovery in civil litigation. See Rishi Chhatwal, Robert Keeling, Ashish Prasad and Todd Haley, “Electronic Discovery Issues,” General Counsel’s Guide to Government Investigations, 4th Ed., 2024, pp. 484-505.

Technical Expertise and Privacy Considerations

Complex data sources such as electronic health records, database-driven clinical platforms, coding software, and billing programs and sales force databases can be the focus of investigators, but they might require the specialized technical expertise of electronic discovery service providers to handle in discovery.

Care must also be taken to implement procedures to assure that the treatment of patient data in discovery complies with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Pub. L. No, 104-191, 110 Stat, 1936 (1996), the Health Information Technology for Economic and Clinical Health “(“HITECH”) Act, 42 U.S.C. §§ 17931-39, and other laws governing the privacy and security of patient data. See Christ, at 19-21. To this end, corporate counsel should work with prosecutors to draft and secure entry of a mutually agreeable confidentiality order that will control the use of HIPAA and other confidential information.

The Return on Investment for Diligence

While achieving discovery compliance can be time-consuming, costly, and burdensome, failure to utilize best practices can have disastrous consequences for the corporation and its counsel. These include missing responsive documents in productions, making erroneous statements to the government about the available sources of information or subject matter of the investigation, and creating an impression that the corporation does not want to cooperate, or is disorganized.

Through implementing a sound eDiscovery process, counsel for the corporation will learn a tremendous amount about the subject matter of the investigation, such as:

  1. The key employees, business units, and departed employees;
  2. The key documents and other information; and
  3. How the documents and other information support or do not support the presence of health care fraud.

This information can be shared with the government to help demonstrate cooperation, as appropriate, and can also empower counsel to provide the most effective representation possible in the investigation. Corporations that focus on defensible and documented procedures for achieving compliance with requests for information in health care fraud investigations as described above will be well positioned to improve their request for cooperation credit when the time comes for resolution of the investigation.


About the Authors

  • Giel Stein is a Member at Clark Hill PLC and a former Special Assistant U.S. Attorney.
  • Anjali Prasad is a Partner at Prasad Legal, PLLC and a former Assistant U.S. Attorney and Assistant District Attorney.

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