by Ben Vernia | October 18th, 2010
In an October 5 decision, Eastern District of Pennsylvania District Judge Paul Diamond denied, without prejudice, a relator’s motion to compel the production of grand jury transcripts. The qui tam suit had led to parallel criminal and civil investigations; the grand jury investigation lasted five years and resulted in no indictment, the civil investigation concluded a year later with the government declining to intervene in the case. The relator argued, over the objections of the company and 25 unnamed grand jury witnesses, that he needed access to the grand jury transcripts in discovery.
After surveying the standards for granting access to grand jury transcripts, Judge Diamond recognized the burden the six-year sealed stay of the case imposed on the relator:
Relator’s more troubling suggestion is that essential testimony may be unavailable through discovery because of the Government’s unnecessarily long civil investigation of this matter. The Government has not explained why it needed six years to conduct its investigation, nor does it dispute that Relator was unable to proceed with his own discovery until it declined intervention.
* * *
It would be quite troubling if the Government’s prolonged civil investigation of this matter–combined with its refusal to disclose materials gathered during its almost equally prolonged grand jury investigation-impaired Relator’s ability to proceed on his own. In such circumstances, disclosure of at least some grand jury material could well be warranted to prevent a possible injustice.
(Citations omitted.) Nevertheless, he concluded that the relator’s motion was premature, and he required him to first depose the witnesses to determine if their memories had faded, making disclosure of their prior testimony necessary.
