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How to Make the SEC Disgorge Exculpatory Evidence
In the post-Enron world, the SEC is ratcheting-up the stakes in many of its cases. With millions of dollars in increased funding and hundreds of additional staff, it is bringing more cases, seeking harsher penalties, and generally litigating more aggressively. If recent press releases are indicative, it is also increasingly coordinating its civil enforcement activities with criminal investigations by the Department of Justice. As one SEC district administrator stated in a recent newspaper interview: “People are looking for heads. And we're going after them.”
The SEC's ever growing prosecutorial assertiveness means that defense counsel in SEC civil actions need to compel the SEC — by negotiation or court motion — to produce impeachment evidence, ie, evidence that directly proves innocence (Brady material) and proof that undermines the evidence supporting the SEC's theory of the case (Giglio material – see Giglio v. United States, 405 U.S. 150 (1972)). Federal prosecutors are required to produce impeachment evidence during a criminal case, but the SEC does not readily produce it in a civil action, even though it is asking courts to impose crippling fines, order disgorgement of ill-gotten gains, and impose lifetime employment bans based upon allegations of fraud. Moreover, SEC civil proceedings often set up a criminal case, with its deposition transcripts becoming the roadmap for conviction. Thus, the same due process that compels disclosure of exculpatory evidence in criminal cases should apply in proceedings initiated by the SEC.
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