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FCA Qui Notes
December 20, 2018

Caroling Fadlalla-la-la as Full Docket Is Unsealed Against Government's Urging

Qui Notes: Unlocking the False Claims Act

'Tis the season to be unwrapping presents, and a good reminder to False Claims Act defendants that they, too, may have a gift to open in the form of previously sealed docket entries. One judge decided to play Santa this week by fully unsealing a non-intervened District of Maryland case that previously had only been unsealed as to the Amended Complaint and Notice of Election to Decline Intervention. United States ex rel. Fadlalla v. Dyncorp Int'l LLC, No. 15-cv-1806 (D. Md.). The court did so after soliciting views from the parties, and in spite of the government's prior request to circumscribe the unsealing to a very limited set of documents. Citing cases from New York, Maryland, and Illinois, the court allowed that continued sealing could be appropriate if the documents disclosed confidential investigative techniques, jeopardized an ongoing investigation, or risked injury to non-parties, but those circumstances were not present here. Rather, these disclosures showed only "routine investigative matters," such as subpoenas issued, witnesses interviewed, and number of pages of documents. The end result is that more than 30 previously sealed filings are now available to the public and to defendants, including the original complaint, multiple motions to extend the seal period during the government's investigative period, and even two separate oppositions by the relators to the government's requests.

Dockets like this can provide a treasure trove of information useful to defendants, providing insight into the history of the case, the dynamic between the government and relators, the attitudes of the court, and can also shed light on substantive legal issues. While an amended complaint may be operative, comparison against the originally filed complaint can lead to valuable information about the evolution of the allegations throughout the investigative period. That information in turn can lend itself to revelations about critical issues such as the first-to-file bar and government knowledge/materiality. Statute of limitations arguments also may be bolstered by examination of earlier versions of the complaint. And of course, unsealing such documents makes them fair game for the public disclosure bar later on down the road—a valuable weapon to have on hand for any allegations originally articulated and then later dropped from the pending case.

In practice, courts are somewhat scattershot in terms of their typical protocols. Some judges will order partial unsealing as a matter of course. Other judges may choose to unseal entire dockets as a default, leaving the parties to be proactive about requesting additional sealing if persuasive reasons such as national security concerns exist. The statute itself gives little helpful guidance, stating only that the complaint should be filed under seal until such time as the government makes its intervention decision—but is silent with respect to other filings such as motions for extension.

Whatever the baseline is for any particular court, defendants should feel empowered to ask for the seal to be lifted on whole dockets where it might be advantageous. After all, you never know what goodies might be hiding at the bottom of the stocking.

© Arnold & Porter Kaye Scholer LLP 2018 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.