In re Oral Testimony of a Witness Subpoenaed Pursuant to Civil Investigative Demand No. 98-19

182 F.R.D. 196, 1998 U.S. Dist. LEXIS 11622, 1998 WL 437405
CourtDistrict Court, E.D. Virginia
DecidedJuly 29, 1998
DocketNo. 4:98MC5
StatusPublished
Cited by5 cases

This text of 182 F.R.D. 196 (In re Oral Testimony of a Witness Subpoenaed Pursuant to Civil Investigative Demand No. 98-19) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Oral Testimony of a Witness Subpoenaed Pursuant to Civil Investigative Demand No. 98-19, 182 F.R.D. 196, 1998 U.S. Dist. LEXIS 11622, 1998 WL 437405 (E.D. Va. 1998).

Opinion

AMENDED OPINION AND ORDER

MORGAN, District Judge.

This matter is before the Court on a series of motions including the witness’ motion to file motions under seal, motion to vacate order and objections to Magistrate Judge’s report and recommendation and the target’s motion to file motions under seal, motion to intervene, and further objections. A hearing was held on Friday, June 12, 1998 and the Court ruled from the bench on this matter. This opinion will further explain the rationale for the Court’s ruling.

Facts

On or about March 1995, the Defense Contract Audit Agency (“DCAA”) began a post-award audit of a contract between the Government and the target of the subsequent investigation. The target is also the interve-nor in this case. DCAA is a component of the Department of Defense. In connection with its post-award audit and pursuant to its limited statutory authority, DCAA issued a document request on March 21,1995.

At the same time that DCAA was conducting its post-award audit, the Department of Defense Inspector General (“IG”), DOJ, the Naval Criminal Investigative Service (“NCIS”) and DCAA began a civil investigation with respect to substantially the same matters which were the subject of DCAA’s post-award audit. On May 29, 1996, the IG issued a subpoena, pursuant to its subpoena power, requesting documents in connection with this civil investigation.1 The documents [199]*199sought were many of the same documents and information previously sought by DCAA. 38,000 pages of documents were produced in response to the IG Subpoena in August 1996.

On approximately February 23, 1998, DOJ notified the target of and served Civil Investigative Demands (“CID”) on ten present and former officers and employees of the target. One such CID went to the witness. On April 9, 1998, DCAA issued a final audit report alleging that the target overcharged the Government and recommending a price adjustment on the contract. Among the documents attached to DCAA’s final audit report were documents produced in response to the IG Subpoena.

The CID served on the witness requested that the witness produce documents by March 30, 1998 and appear for a deposition on April 3, 1998. The witness requested the target to assist in preparing for the deposition as the witness anticipated being questioned concerning complicated transactions.

The CID was authorized pursuant to the False Claims Act (“FCA”), 31 U.S.C. § 3733. The CID designated an investigator for the NCIS as an FCA Deputy Custodian. An FCA Custodian is responsible under the statute for the maintenance of the materials gathered by the CID.2 The CID lists a DOJ attorney and an Assistant United States Attorney as the false claims law co-investigators. Further, the CID stated that the witness had “the right to be accompanied by an attorney and other personal representative at the oral examination.”

On April 21, 1998,3 the witness, who was the first witness scheduled, appeared at the CID deposition accompanied by his personal attorney and two of the target’s outside counsel. All four false claims law co-investigators named in the internal memo were present for the Government. At the outset of the deposition, the witness’ counsel attempted to resolve the witness’ entitlement to have the target’s counsel present as the witness’ representatives under the statute. The Government argued that the target’s counsel was not entitled to be present and sought to take the witness’ testimony on that issue outside the presence of the target’s counsel. The witness declined and the Government declared the deposition concluded.

Later in the day, the witness’ counsel was notified that the matter would be presented to Magistrate Judge James E. Bradberry in Newport News at 3:00 p.m. that same day. The Government filed a Petition For An Order to Enforce Civil Investigative Demand in this Court and served it on the witness’ counsel sixty-five minutes before the hearing. The Petition sought to require the witness to provide oral testimony as required by the CID and to exclude the target’s counsel during the taking of oral testimony. On April 23, 1998, the Magistrate Judge issued an order granting the Government’s petition and excluding the target’s counsel from attendance at the CID deposition.

Procedural History

On April 21, 1998, the Magistrate Judge held a hearing. On April 23, 1998, the Magistrate Judge issued a published order granting the Government’s petition. On May 7, 1998, the witness filed a motion to file motions under seal, a motion to vacate order and objections to what they classified as the Magistrate Judge’s report and recommendation. On May 20,1998, the Government filed a memorandum in opposition to the motion to vacate order and the objections. On May 29, 1998, the witness filed a reply memorandum.

On May 7, 1998, the target filed a motion to file pleadings under seal and a motion to intervene in order to object to the Magistrate Judge’s order. On May 20, 1998, the Government filed a memorandum in opposition to the motion to intervene and to the objections. On May 29, 1998, the target filed a rebuttal brief.

[200]*200A. Motions to File Motions Under Seal

The statute granting authority to issue a CID notes that CID material or information is protected from disclosure. See 31 U.S.C. § 3733(b). Moreover, CID material is exempt from disclosure under the Freedom of Information Act. See 31 U.S.C. § 3733(k). A Congressional intent to keep CID proceedings and material confidential can be inferred.

No parties have filed any opposition to the motions to file motions under seal. Further, by order dated April 23, 1998, the entire file in this case was placed under seal. Therefore, the Court NOTES that it is unnecessary to order each individual pleading to be sealed as that is automatically done when an entire file is placed under seal.

B. Motion to Vacate Order

Summary of Arguments

The witness basically contends that the Magistrate Judge’s order was entered without jurisdiction. The witness asserts the petition is a dispositive motion which requires authorization from a district court judge. The case was not referred by a specific order with instructions from a district court judge. Further, the parties have not consented to having the matter before a magistrate judge. Therefore, the witness argues that the Magistrate Judge had no authority to issue the order.

The Government contends that the petition is not dispositive. Therefore, the Magistrate Judge can hear the issue with permission from a district court judge. While no specific authorization was obtained, the Government asserts that the 1991 Standing Order of this Court gave the Magistrate Judge authority to hear the ease.

Analysis

The jurisdiction and powers of United States Magistrate Judges are set forth in 28 U.S.C. § 636.

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182 F.R.D. 196, 1998 U.S. Dist. LEXIS 11622, 1998 WL 437405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-oral-testimony-of-a-witness-subpoenaed-pursuant-to-civil-vaed-1998.