• Federal Judge Sets High Bar for Federal Prosecutors Seeking Leave to Share Documents Subpoenaed by Grand Jury with Attorneys in DOJ Civil Division
  • July 22, 2008 | Authors: Andrew P. Gaillard; Helen Harris; Dennis T. Kearney; John J. O'Reilly; Edgardo Ramos; Stanley A. "Stan" Twardy
  • Law Firms: Day Pitney LLP - Stamford Office; Day Pitney LLP - Boston Office; Day Pitney LLP - Stamford Office; Day Pitney LLP - Morristown Office; Day Pitney LLP - New York Office; Day Pitney LLP - Stamford Office
  • In yet another decision addressing the government’s burdens in parallel proceedings, the chief federal judge in the District of Massachusetts denied the government’s ex parte application for an order permitting federal prosecutors to share with their counterparts in the Justice Department’s Civil Division copies of business records subpoenaed by a grand jury.  The court’s order also spelled out the “strong showing of particularized need” and other requirements the government must meet should it renew its application.

    Federal law provides that a False Claims Act (“FCA”) complaint by a whistleblower must be filed in camera and remain sealed to provide the government an opportunity to decide whether to intervene and assume the litigation.  Two such qui tam actions had been filed in 2003 and 2006, respectively, alleging FCA and other federal violations by a company identified in the decision only as “ABC Corp.”   In 2005, the government commenced a criminal investigation of ABC Corp. and, in 2008 anticipated receiving business records and computer information from the company in response to a grand jury subpoena.  The criminal prosecutors sought leave to share these subpoenaed materials with attorneys in DOJ’s Civil Division on the grounds that the latter needed them to evaluate the qui tam complaints against the company. 

    The district court denied the government’s application and delineated what the government must show in any renewed application.  The court directed that any such application be accompanied by a sworn affidavit containing a “strong showing of particularized need” by the Civil Division for the materials covered by the grand jury subpoena.  The court also required that any future application and affidavit address several issues, including “whether the grand jury investigation was undertaken in good faith, and not as a pretext to collect information for use in a civil investigation” and whether any materials disclosed to the Civil Division attorneys would be shared with private parties to the qui tam actions.  The court also cautioned that, if the government renewed its petition, the court reserved the right to decide whether to consider the petition in an ex parte proceeding or, in the alternative, to give ABC Corp. notice and an opportunity to be heard, in which event it might order the government to move to unseal the qui tam actions pending before another judge in the same district.

    A copy of the court’s decision can be found at In re Grand Jury Matter, __ F. Supp.2d __, 2008 WL 2058491 (D.Mass. January 29, 2008).