One of the
first steps in effectively defending
False Claims Act/Qui Tam actions is
often overlooked by counsel
inexperienced in handling this type of
case. While in qui tam cases 31 U.S.C.
3730(b)(2) mandates that the government
shall have 60 days in which to review
the complaint and make its intervention
decision, in actuality the government
usually requires substantially more time
to conduct its investigation. In order
to secure additional periods of time for
review, the government is required to
move the supervising district court
pursuant to 3730(b)(3). Such motions
usually include declarations by the
responsible Assistant United States
Attorney that summarize the progress
made to date in conducting the
investigation and what the government
hopes to accomplish should an extension
of time be granted. Of course, where the
case is initiated by the government, and
not a relator, there is no need to
request additional time.
As with the
remainder of the district court's file,
these motions for additional time are
designated as being "in camera" and
"filed under seal." Whether the
government intervenes or declines
intervention, its notice to the district
court usually requests that all items
then in the Court's file remain under
seal with the exception of the actual
complaint itself. Most district courts
will automatically implement this
request and foreclose access by defense
counsel to the remaining documents filed
in the case prior to unsealing the
Complaint.
Sometimes, these motions for extensions
of time contain useful information;
often they are routine and are not
particularly helpful to defense counsel
in preparing a motion to dismiss, which
is usually the initial step in defending
a FCA/Qui Tam action. As a matter of
course, however, defense counsel should
seek to gain access to this material by
filing an unsealing motion, such as the
sample motion infra. Most district
courts will grant unsealing at least to
some extent. If the government objects
and argues that granting the motion will
result in defense counsel gaining access
to internal analysis, work papers, or
evaluations of the case by the
government, then defense counsel as
movants can request that the court
review the material in camera and unseal
the material that does not reveal the
government's legal theories and
analysis.
It is
important to note that some (but
certainly not all) district court
clerks, as a matter of practice, will
not list on the public docket sheets
(including PACER) any filings that were
made while the case was under seal, with
the exception of the complaint and the
government's notice of
intervention/declination. Nonetheless,
if the government filed its intervention
more than 60 days after the qui tam
complaint was originally filed, then the
government must have received at least
one extension of time from the district
court and the unsealing motion should be
filed.
