Defending False Claims Act/Qui Tam Actions: The Motion To Unseal The Record

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.

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