Kumar Kammarayil v. Sterling Operations, Inc.

• Court: District Court, District of Columbia
• Decided: December 31, 2018
• Docket: Civil Action No. 2015-1699
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, ex rel. GOPALAKRISHNA PILLAI AJEESH KUMAR KAMMARAYIL, et al., Civil Action No. 15-1699 (BAH) Plaintiffs, Chief Judge Beryl A. Howell v.

STERLING OPERATIONS, INC., et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

The two relators, Gopalakrishna Pillai Ajeesh Kumar Kammarayil and Mohammed Azad

Shabbir, waited three years, from October 2015 to November 2018, for the government to decide

whether to intervene in this qui tam matter brought pursuant to the False Claims Act (“FCA”), 31

U.S.C. § 3730(b)(1). Despite the fact that the government’s memoranda filed in support of the

government’s seven motions for extension of time to make the intervention decision (“the

extension memoranda”) were filed ex parte and not shown to the relators, the relators consented

to each extension over the three-year period based, at least in part, on the government’s

representations to the relators that intervention was likely.1 Now, confronted by the

government’s final decision declining to intervene in what seems to the relators to be a clear-cut

case under the FCA, as already “established in a civil action tried in the United States District

Court for the Eastern District of Tennessee,” see Rels.’ Mem. Supp. Order that the Dep’t of

Justice Serve on Relators’ Counsel, Under Seal, the Mem. of Law That Accompanied the

1 See Gov’t’s Motions for Extension of Time to Consider Election to Intervene, January 11, 2016, ECF No. 2; July 08, 2016, ECF No. 4; January 11, 2017, ECF No. 8; July 10, 2017, ECF No. 10; January 12, 2018, ECF No. 13; May 8, 2018, ECF No. 15; September 11, 2018, ECF No. 18.

1 Government’s Seven Requests for Extensions to Consider Its Election to Intervene and Preserve

Records (“Rels.’ Mem.”) at 1, ECF No. 24 (describing Judgment, MAKS, Inc., et al. v. Sterling

Operations, Inc., et al., 3:10-cv-00443-TAV-HBG (E.D. Tenn. Feb. 14, 2013), ECF No. 336

(“2013 Judgment”)), the relators seek limited unsealing to them of the government’s extension

memoranda, to ascertain whether material discrepancies exist between the government’s

representations to the Court and to the relators in private over the three-year period, as well as to

inform the relators about any weaknesses in their claims that may have been uncovered by the

government about which they should be aware in deciding how or whether to pursue this

litigation, id. at 10-11.

Notably, the relators do not request a full unsealing of the extension memoranda such that

the memoranda would become available to the public. See Rels.’ Mem. at 9 (noting that “the

Court need not, yet, consider the merits of unsealing, for public view, the memoranda”). Instead,

the relators seek a limited unsealing for the relators’ (and their counsels’) review only, requesting

an order that the government serve the memoranda on relators’ counsel, “under seal.” Rels.’

Mot. for Order that the Dep’t of Justice Serve on Relators’ Counsel, Under Seal, the Mem. of

Law That Accompanied the Government’s Seven Requests for Extensions to Consider Its

Election to Intervene and Preserve Records (“Rels.’ Mot.”) at 1, ECF No. 24; Rels.’ Reply Supp.

Rels.’ Mot. (“Rels.’ Reply”) at 1, ECF No. 27. The government, unhelpfully, mischaracterizes

the relators’ motion as seeking a complete “unsealing,” Gov’t’s Mem. Opp’n Rels.’ Mot.

(“Gov’t’s Opp’n”) at 2, ECF No. 26, without acknowledging the more limited request before the

Court. For the reasons set forth below, the relators’ motion for limited unsealing of the extension

memoranda is granted. 2

2 The relators also request an order requiring that “those DOJ personnel who worked on or deliberated over” the instant case “take whatever precautionary measures are required to preserve all relevant documents,” Rels.’

2 I. BACKGROUND

The relators claim that Sterling Operations, Inc., in performing on a contract with the

United States Army Corps of Engineers (“USACE”) to supply “relocatable buildings (“RLBs”)

to house U.S. service men and women at the Bagram Air Field (“BAF”) in Afghanistan,” Rels.’

Mem. at 2, conducted a “planned armed robbery,” id. at 5, of its subcontractor, Kuwait-based

MAKS Inc. General Trading and Contracting Co. (“MAKS”), on October 23, 2009. According

to the relators, who were employed by MAKS and eyewitnesses to the alleged armed robbery,

Compl. ¶¶ 27-28, ECF No. 1, “at approximately 5:30 a.m., Sterling personnel armed with

assault/automatic weapons invaded the MAKS construction compound in Kabul, Afghanistan,”

Rels.’ Mem. at 6, “[k]eeping the MAKS employees at bay with their automatic weapons for

some six hours” while “Sterling personnel stole 90 [RLB] modules from MAKS before the

Afghan Ministry of Interior Police arrived and halted further thefts,” id. at 6. In a civil lawsuit

brought by MAKS in the Eastern District of Tennessee, a jury found Sterling Operations liable to

MAKS for breach of contract and for trespass. See 2013 Judgment. The relators, who, along

with MAKS, were plaintiffs in the successful Eastern District of Tennessee case against the

defendants, brought the instant FCA lawsuit in October 2015, claiming that, during the armed

robbery, the defendants damaged the RLBs and subsequently made false claims to the U.S.

Government for equitable adjustments to the contract price for damages caused by the

defendants’ own criminal acts. Compl. ¶¶ 32-44. According to the relators, “[h]ad the U.S.

known of the falsity as to Sterling’s fraudulent and criminal conduct with respect to MAKS, the

Mem. at 13, which request is denied. Relators’ request is tied to concerns about “possible political interference in DOJ’s deliberative processes,” Rels.’ Mem. at 13, which the government rebuts as an “outlandish conspiracy theory,” Gov’t’s Opp’n at 9. The relators have not shown that a preservation order is necessary in this case since the government is “well-aware of” and “will act according to” its obligation to preserve records subject to relators’ threatened litigation. Id. at 11. Moreover, the government has already “issued a preservation hold letter to the Army to preserve all material relevant to this qui tam matter.” Id. at 10.

3 government would not have made payments to Sterling.” Compl. ¶ 137. This qui tam lawsuit

seeks $9,000,000 in damages. Civil Cover Sheet at 2, ECF No. 1-1. Three years later, the

government declined to intervene. See Gov’t’s Notice of Election to Decline Intervention, ECF

No. 23.

II. LEGAL STANDARD

“[T]he starting point in considering a motion to seal court records is a ‘strong

presumption in favor of public access to judicial proceedings.’” E.E.O.C. v. Nat’l Children’s

Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996) (quoting Johnson v. Greater Southeast

Community Hosp. Corp., 951 F.2d 1268, 1277 (D.C. Cir. 1991)). The strong presumption of

public access to judicial records is a “longstanding common-law right” that “‘antedates the

Constitution.’” Metlife, Inc. v. Financial Stability Oversight Council, 865 F.3d 661, 674 (D.C.

Cir. 2017) (quoting U.S. v. El-Sayegh, 131 F.3d 158, 161 (D.C. Cir. 1997)). The right of access

to court documents is also grounded in the First Amendment. See El-Sayegh, 131 F.3d at 160

(“The First Amendment guarantees the press and the public access to aspects of court

proceedings, including documents, ‘if such access has historically been available, and serves an

important function of monitoring prosecutorial or judicial misconduct.’” (quoting Washington

Post v. Robinson, 935 F.2d 282, 288 (D.C. Cir. 1991)).

In determining whether judicial records should be sealed or made publicly accessible, all

Circuits apply a balancing test that is “analytically similar,” Metlife, Inc., 865 F.3d at 671, to the

D.C. Circuit’s balancing test articulated in United States v. Hubbard, 650 F.2d 293, 314 (D.C.

Cir. 1980). The Hubbard test is intended to “ensure[] that [courts] fully account for the various

public and private interests at stake.” Metlife, Inc., 865 F.3d at 666 (citing Hardaway v. District

of Columbia Housing Authority, 843 F.3d 973, 980 (D.C. Cir. 2016); Primas v. District of

4 Columbia, 719 F.3d 693, 698-99 (D.C. Cir. 2013); Nat’l Children’s Ctr., Inc., 98 F.3d at 1409-

11; Johnson, 951 F.2d at 1277 & n.14). To that end, the Hubbard test requires courts to consider

six factors in particular: (1) the need for public access to the documents at issue; (2) the extent of

previous public access to the documents; (3) the fact that someone has objected to disclosure,

and the identity of that person; (4) the strength of any property and privacy interests asserted; (5)

the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the

documents were introduced during the judicial proceedings. See Hubbard, 650 F.2d at 314.

The Hubbard test is, however, inapplicable in at least two circumstances. First, the

Hubbard test only applies to the sealing or unsealing of judicial records, and “‘not all documents

filed with courts are judicial records.’” Metlife, Inc., 865 F.3d at 666 (quoting SEC v. Am. Int’l

Grp., 712 F.3d 1, 3 (D.C. Cir. 2013)). “Rather, ‘whether something is a judicial record depends

on the role it plays in the adjudicatory process.’” Id. (quoting Am. Int’l Grp., 712 F.3d at 3). A

document filed with a court (1) that “can affect a court’s decisionmaking process,” (2) “which

the parties hope to influence the court,” and (3) “upon which the court must base its decision” is

a judicial record. Metlife, Inc., 865 F.3d at 667. See also Matter of Leopold to Unseal Certain

Elec. Surveillance Applications & Orders (“Leopold”), 300 F. Supp. 3d 61, 92 (D.D.C. 2018).

Thus, the Hubbard test is inapplicable where a court filing is nonetheless not a judicial record

because of its “role” in the “adjudicatory process.” Metlife, Inc., 865 F.3d at 666.

Second, because the Hubbard test is probative of a right of access under the common

law, the test “must yield to a statute ‘when Congress has spoken directly to the issue at hand.’”

Metlife, Inc., 865 F.3d at 669 (quoting Ctr. For Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331

F.3d 918, 937 (D.C. Cir. 2003)). Therefore, if a statute (e.g., the FCA) clearly dictates that a

judicial filing should or should not be sealed, the Hubbard test is rendered “inapplicable.” Id.

5 III. DISCUSSION

The government asserts essentially two arguments to maintain the ex parte seal on the

seven extension memoranda. First, the government argues that the FCA “evinces the intent (and

the requirement) that government applications for extensions of the seal and the time for making

a decision to intervene should remain under seal.” Gov’t’s Opp’n at 6. Second, even if the FCA

does not mandate sealing of the extension memoranda, according to the government, unsealing

the memoranda would “reveal investigatory techniques, decision-making processes, and

reasoning” that would prejudice the government’s ability to conduct effective investigations in

the future and “have a chilling effect on the future preparation of such briefs,” because, knowing

that they could be eventually disclosed, the government will become more “circumspect” about

“revealing to the courts the course of its investigations” in support of extension motions. Id. at

7- 8. The government’s arguments are addressed seriatum, before turning to analysis of the

Hubbard factors, which surprisingly no party addressed.

A. The FCA Does Not Require That Memoranda Supporting Government’s Motions for Extension of Time Remain Under Seal

The FCA provides that a plaintiff may bring a civil action “in the name of the

Government,” 31 U.S.C. § 3730(b)(1), and prescribes that the plaintiff must, in addition to filing

its complaint under seal and in camera, serve its complaint and material evidence on the

government, thereby triggering a 60-day countdown during which time the “Government may

elect to intervene and proceed with the action,” id. § 3730(b)(2). After the 60-day period lapses,

the complaint may be unsealed, id., unless the government “for good cause shown” “move[s] the

court for extensions of the time during which the complaint remains under seal,” id. §

3730(b)(3). Any such government motion “may be supported by affidavits or other submissions

in camera.” Id. Absent from the FCA’s carefully prescribed schedule for unsealing the

6 complaint is any indication as to whether government “submissions,” if any, filed in support of

the government’s “good cause” requirement for extensions of time, should be unsealed along

with the complaint, or remain sealed after the government decides whether to intervene.

Contrary to the government’s assertion, the FCA therefore does not “evince[] the intent,”

much less “the requirement,” that the memoranda remain under seal. Gov’t’s Opp’n at 6. The

statute is simply silent on this issue, providing no indication that Congress intended to modify

the default rule that “the decision as to access (to judicial records) is one best left to the sound

discretion of the trial court, a discretion to be exercised in light of the relevant facts and

circumstances of the particular case.” Hubbard, 650 F.2d at 316-17 (quoting Nixon v. Warner

Commc’ns, Inc., 435 U.S. 589, 589 (1978)).

Neither of the two cases relied upon by the government provides otherwise. See Gov’t’s

Opp’n at 6 (citing United States ex rel. Stephens v. Prabhu, No. CV-S-92-653-LDG (LRL), 1994

WL 761236 (D. Nev. Dec. 9, 1994) and United States ex rel. Couglin v. IBM, 992 F. Supp. 137

(N.D.N.Y. 1998)). The Prabhu court merely acknowledges that the FCA does not “direct[] the

court to unseal the motions for enlargement of time filed in camera,” 1994 WL 761236 at *1, but

in no way holds that such unsealing is prohibited by the FCA. Similarly, the government’s

reliance on IBM is particularly misplaced since that court granted the defendant’s motion to

unseal the relators’ opposition to the proposed settlement agreement “[a]fter balancing the need

for and harm risked by the disclosure sought,” 992 F. Supp. at 141, even though such unsealing

is not directly contemplated by the FCA. Moreover, in reaching its conclusion, the IBM court

reviewed prior judicial opinions, concluding that they all “reasoned that because the False

Claims Act permits in camera submissions, the statute necessarily gives the court discretionary

authority over whether to maintain the secrecy of such submissions.” Id. at 140 (citing United

7 States ex rel. O’Keefe v. McDonnell Douglas Corp., 902 F. Supp. 189, 190-192 (E.D. Mo. 1995),

United States v. CACI Int’l Inc., 885 F. Supp. 80, 83 (S.D.N.Y. 1995), and United States ex rel.

Mikes v. Straus, 846 F. Supp. 21, 23 (S.D.N.Y. 1994)). See also United States ex rel. Lee v.

Horizon West, Inc., No. C 00-2921 SBA, 2006 WL 305966 (N.D. Cal. Feb. 8, 2006) (ordering

disclosure of the government’s extension requests in FCA case). Thus, even the cases relied

upon by the government do not support the proposition that the FCA requires the continued ex

parte sealing of the government’s extension memoranda.

B. Disclosure of Government’s Extension Memoranda Would Not Reveal Privileged Investigatory Techniques or Chill Future Disclosures

The government next argues that the extension memoranda should not be disclosed to

relators because these memoranda “reveal investigatory techniques, decision-making processes,

and reasoning that apply in hundreds of similar cases in which the government must decide

whether and how to conduct enforcement litigation.” Gov’t’s Opp’n at 8. While the government

is appropriately protective of such investigative information, this description overstates the

revelations in the extension memoranda. The extension memoranda vary in length from three to

five pages and contain largely background facts already disclosed in the complaint, the

government’s boilerplate legal arguments in support of its extension motions, and general

descriptions of the investigatory steps taken, including collection and review of relevant

documents from the Tennessee litigation resulting in the 2013 Judgment and from relevant U.S.

Military and defense contractor sources responsible for implementation and overseeing

performance of and payments under the contract at issue, as well as from the defendants. The

extension memoranda supply virtually no information regarding the government’s on-going

efforts to decide whether to intervene in terms of an assessment of the relators’ claims, the total

numbers or names of any witnesses interviewed or even the locations, volume or custodians of

8 the documents reviewed, and only minimal information regarding the positions of some of the

witnesses whom the government determined had relevant information. Rather, the government’s

investigatory efforts are described generally and reflect obvious steps in any investigation, such

as collecting relevant documents and conducting witness interviews. See United States ex rel.

Littlewood v. King Pharm., Inc., 806 F. Supp. 833, 843 (D. Md. 2011) (“[U]nsealing is

appropriate if the documents merely disclose ‘routine investigative procedures which anyone

with rudimentary knowledge of investigative processes would assume would be utilized in the

regular course of business … [and] contain[] no information about specific [investigatory]

techniques.” (quoting United States ex rel. Mikes, 846 F. Supp. at 23)); Horizon West, Inc., 2006

WL 305966, at *3 (holding that “the Government’s bare assertion that the disclosure of its

extension requests would ‘reveal pieces of the government’s investigatory techniques, decision-

making processes, research, and reasoning that apply in hundreds of similar cases’ is not

sufficient” to keep requests under seal). The government revealed no information in the

extension memoranda that could be considered evaluative of internal reasoning contributing to

next investigatory steps or to its declination decision. In short, nothing in the extension

memoranda reveals the government’s decision-making in this case.3

Relatedly, the government further argues that disclosing the extension memoranda to the

relators’ counsel “would have a chilling effect on the future preparation of such briefs,” because

it “would likely lead the government to be more circumspect in future cases in revealing to the

courts the course of its investigations and the government’s research and decision-making.”

Gov’t’s Opp’n at 8. This “chilling effect” argument fails to persuade for much the same reasons

addressed above. While the government must show “good cause” for extensions of time under

3 At any rate, before release of any extension memoranda to the public, the government may be granted an opportunity to suggest any contents that the government believes should be redacted.

9 the FCA, see 31 U.S.C. § 3730(b)(3), the government may show good cause, as it has in the

instant case, without revealing important investigatory techniques, detailing the specific steps

taken, analyzing the strengths or weaknesses of particular claims based on the information

gleaned from witness interviews or document review, or explaining the reasons for the

government’s internal decision to intervene or not. A wide-ranging middle ground lays between,

on the one hand, an insufficient showing for an extension of time, and on the other hand, a

showing so comprehensive and detailed that it prejudices future government investigations if

unsealed. Thus, the government’s future filings will not be “chilled” because the government

will continue to have ample berth to make necessary showings of good cause, even while

knowing that these showings may eventually be made available to the relators, which is the only

issue before this Court.

C. Application of the Hubbard Factors

As discussed above, the FCA is silent as to whether government memoranda filed in

support of motions for extension of time must remain under seal and, therefore does not bar the

limited unsealing sought here. Moreover, the memoranda are properly designated “judicial

records,” as they were filed in support of motions seeking a judicial action, and played a critical

role in the Court’s decision to grant the extensions requested by the government. For the reasons

set forth below, the six Hubbard factors, on balance, weigh in favor of disclosing the extension

memoranda to relators.

1. The Need for Limited Unsealing to Relators

The relators offer two reasons for why the government’s memoranda should be disclosed

to them. First, the relators wish “to ensure that the representations that were being made to

Relators (which provided the bases for Relators’ consent to all seven motions) were the same or

at least not inconsistent with the representations that the government was making to the Court in 10 its memoranda.” Rels.’ Mem. at 11. Second, the relators wish to discover information collected

by the government and “disclosed to the Court in the government’s memoranda of law, that

would counsel against proceeding with the case.” Id. Only the second reason advances the

public interest in the limited unsealing sought here.

The relators’ first reason for access to the memoranda appears, at bottom, to test the

veracity of the government’s representations to relators. Cf. Azar v. Garza, 138 S. Ct. 1790,

1793 (2018) (“[I]t is critical that lawyers and courts alike be able to rely on one another’s

representations.”). The relators claim that their “consent [to the seven motions] was tied to the

government’s assurances that the government was going to intervene in this case,” Rels.’ Mem.

at 10, that “[t]he government has repeatedly and consistently communicated to Relators that DOJ

would be intervening in this case,” Rels.’ Mem. at 12, and that the assurances were

“unequivocal,” Rels.’ Mem. at 12 n.3. The government denies that any assurances of

government intervention were made to the relators. See Gov’t’s Opp’n at 9 n.3. While ensuring

the integrity of the judicial process is part of the court’s inherent powers, see generally

Chambers v. NASCO, Inc., 501 U.S. 32 (1991), the relators’ apparent surprise at the

government’s declination decision does not warrant unsealing of the extension memoranda. The

disconnect between the relators’ expectation and the government’s declination decision likely

arises in many qui tam actions due to a variety of reasons, such as overly optimistic

interpretations of, or misunderstanding, the government’s representations, changing assessment

over time by the government of the relators’ claims, and government resource issues that affect

the exercise of prosecutorial discretion whether to intervene in a particular case. Consequently,

unsealing the extension memoranda may do little to settle the precise reason for the disconnect

11 and, standing alone, this reason does not suffice to warrant limited unsealing of the extension

memoranda to the relators.

The relators further claim, however, that disclosing the extension memoranda will aid

the relators in determining whether to proceed with their qui tam action, absent the government’s

intervention. Rels.’ Mem. at 11. The relators would be litigating on the United States’ behalf

and, should they succeed, their success would ultimately accrue to the public interest. See

United States v. ISS Marine Servs., Inc., 905 F. Supp. 2d 121, 140 (D.D.C. 2012) (“[T]he need

for public access to judicial records may be regarded as particularly vital where—as here—

members of ‘the taxpaying public are, in effect, real parties in interest.’” (quoting United States

v. Thomas, 840 F. Supp. 2d 1, 3 (D.D.C. 2011)). At the same time, if information contained in

the extension memoranda alert the relators to reasons for pause in their pursuit of the qui tam

claims, the earlier resolution of these claims will preserve the time, attention, and attendant

resources of the parties and the Court. Moreover, to the extent that the extension memoranda

disclose sources of relevant information uncovered by the government, the relators will be able

to expedite discovery in the case, which has already been delayed for several years pending the

government’s decision whether to intervene. Expediting discovery would inure to the benefit of

the relators, the government, and the Court. Therefore, the relators’ second argument counsels in

favor of disclosure under the first Hubbard factor.

2. Extent of Previous Public Access

Where the public already has access to the information in question, Hubbard instructs

courts to weigh the pre-existing access in favor of disclosure. See Hubbard, 650 F.2d at 318

(“Previous access is a factor which may weigh in favor of subsequent access.”). See also United

States ex rel. Grover v. Related Companies, LP, 4 F. Supp. 3d 21, 26 (D.D.C. 2013); United

12 States ex rel. Schweizer v. Oce, N.V., 577 F. Supp. 2d 169, 173 (D.D.C. 2008). “[T]he rationale

behind treating prior access as favoring unsealing” is “that it is less harmful to release a

document that was once public than to release one that has never been made publicly accessible.”

Friedman v. Sebelius, 672 F. Supp. 54, 59 (D.D.C. 2009) (citing Nat’l Children’s Ctr., Inc., 98

F.3d at 1409-10 and In re Application of New York Times Co. for Access to Certain Sealed Court

Records, 585 F. Supp. 2d 83, 92-93 (D.D.C. 2008)).

Well before the relators filed their complaint in October 2015, a lengthy record of the

events underlying the instant FCA claims had already been established in a civil suit between the

relators and the defendant Sterling Operations, where a jury verdict found Sterling Operations

liable for breach of contract and trespass. See 2013 Judgment. Likewise, as already noted, the

contents of the extension memoranda at issue largely contain information from the complaint,

which has been made public. See Order, dated November 19, 2018, ECF No. 25. Finally,

perusal of the extension memoranda indicates that the only information not already publicly

available relates to the government’s own investigatory actions to determine whether to

intervene. As noted supra in Part III.B, those investigatory steps are largely described in general

terms and involve steps that are common to virtually every investigation, such as collecting and

reviewing documentation and interviewing witnesses, but the memoranda do identify the sources

providing relevant information to the government, which sources may not be entirely publicly

known. While this factor would weigh against full public disclosure, this same factor would

expedite discovery in this case brought by relators to recover funds allegedly defrauded from the

U.S. Government and, therefore, weighs slightly in favor of disclosure to the relators with a

limited unsealing.

13 3. Objections to Unsealing

The third Hubbard factor considers the “fact of” an objection and the “identity of” the

person objecting. Hubbard, 650 F.2d at 319-320. In the instant case, only the government

objects to the limited unsealing, though third parties have had no opportunity to object since the

relators’ motion to unseal is itself filed under seal. The government’s objection to unsealing,

however, is predicated on concerns about the chilling effect any unsealing will have on future

investigations and government filings for extensions of time for making intervention decisions.

These concerns are no more persuasive here to keep sealed these judicial records. Therefore, this

factor favors unsealing.

4. Strength of Asserted Property/Privacy Interests

Besides the claim of an investigatory privilege by the government, neither party claims a

property or privacy interest to be at stake. Therefore, this factor has limited relevance for or

against the relators’ request for limited unsealing.

5. Possibility of Prejudice

The possibility of prejudice “refers to ‘whether disclosure of the documents will lead to

prejudice in future litigation to the party seeking the seal.’” United States ex rel. Durham v.

Prospect Waterproofing, Inc., 818 F. Supp. 2d 64, 68 (D.D.C. 2011) (quoting Friedman, 672 F.

Supp. 2d at 60). As discussed above, the government’s arguments as to the potential prejudice

resulting from the limited unsealing of the extension memoranda fail to persuade. The

government’s concern about revealing investigatory techniques could, in principle, be afforded

significant weight, but review of the extension memoranda shows that the government’s concern

here is misplaced. Moreover, any prejudice that could be ascribed to a public unsealing are

minimized at this stage, because the relators seek only a limited unsealing.

14 6. Purpose of Sealed Materials’ Introduction

The final Hubbard factor focuses on the purpose for which the sealed materials were

introduced, where materials more central to the litigation and actually relied upon by the judge

carry a stronger presumption of availability to the public. See Hubbard, 650 F.2d at 321

(holding that the district court should not have unsealed the documents where the documents

“were not determined by the trial judge to be relevant to the crimes charged … were not used in

the subsequent ‘trial’; nor were they … described or even expressly relied upon by the trial judge

in his decision on the suppression motion”). Here, the Court relied on the government’s

memoranda to decide whether the government had established “good cause” under the FCA to

warrant each of its seven requested extensions of time over three years. Therefore, this factor

weighs in favor of unsealing.

In sum, having applied the six-factor Hubbard analysis, the Court finds that the public

interest and purpose factors weigh strongly in favor of disclosure, and that other factors also

generally favor the limited unsealing sought here. Thus, in accordance with the “strong

presumption in favor of public access to judicial proceedings,” Johnson, 951 F.2d at 1277, the

Court will grant the relators’ motion for limited unsealing.

IV. CONCLUSION

Upon Consideration of the United States’ Notice of Election to Decline Intervention,

ECF No. 23, in this action pursuant to the False Claims Act, 31 U.S.C. § 3730(b)(4)(B), it is

hereby

ORDERED that the relators’ Motion for an Order that the Department of Justice Serve

on Relators’ Counsel, Under Seal, the Memoranda of Law That Accompanied the Government’s

15 Seven Requests for Extensions to Consider Its Election to Intervene and Preserve Records, ECF

No. 24, is GRANTED IN PART AND DENIED IN PART; and it is further

ORDERED that the government’s seven motions for extension of time to consider

election to intervene and associated memoranda of law, docketed at ECF Nos. 2, 4, 8, 10, 13, 15,

and 18, be partially unsealed for purposes of allowing access to relators and their counsel and

that the government, by January 7, 2019, deliver these memoranda to relators’ counsel; and it is

further

ORDERED that the relators’ Motion for an Order that the Department of Justice

Preserve Records is DENIED.

So ordered.

Date: December 31, 2018

__________________________ BERYL A. HOWELL Chief Judge