Stephen A. Wood is a Partner with Chuhak & Tecson, P.C. in Chicago, IL and serves as the WLF Legal Pulse’s Featured Expert Contributor on the False Claims Act.

The docket in virtually every False Claims Act qui tam case reveals an unusual feature, one unique to these cases.  Several docket entries pre-dating the government’s Notice of Election to either intervene or decline intervention remain under seal, shielded not only from public eyes, but from the eyes of the defendant and defense counsel.  The government’s notice typically requests that “only the complaint, this notice, and the Court’s Order be unsealed and served upon the Defendant. All other contents of the Court’s file in this matter . . . should remain under seal and not be made public or served upon the Defendant.”  Just as typically, the government offers no justification or supporting rationale for its unusual request for complete confidentiality. 

These documents were filed during ex parte proceedings.  And courts almost uniformly accommodate these one-sided, secretive endeavors, even though they come without justification.  And on those few occasions when there is defense pushback, the government usually responds by invoking a claim of privilege, or by claiming that the information is either not relevant or, even if arguably relevant, release would somehow harm the government.  The government’s arguments are varied.  Often, it is claimed that secrecy supports the government’s need for confidentiality regarding its investigative or deliberative processes.  See, e.g., United States v. Education Mgmt, LLC, No. 2007-cv-461, 2013 WL 4591317 at *2 (W.D. Pa. Aug. 28, 2013).  It also insists that sealing promotes candor with the court. 

As noted in one of my earlier WLF Legal Pulse posts, the government regularly exploits the False Claims Act sealing provisions, first by seeking multiple extensions of the 60-day seal period—lasting several years in many cases—and again by insisting that all pre-Notice of Election filings remain under seal.  The latter abuse, the subject of this post, should be opposed for several reasons.  These actions have the potential to deprive the defendant of important information about the government’s case.  Second, they undermine the public’s interest in transparent operation of our government.  And third, they undermine the public’s interest in access to the court system.  Of its varied justifications, only the government’s privilege claims may potentially hold water.  Even then, defendants should force the government to do what any civil litigant must—establish its claims of privilege with facts and authority.