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Negotiating Confidentiality Agreements with the Government
In years past, a corporation could assume that, when it produced documents in response to a Department of Justice (DOJ) subpoena, there were limited risks that such documents would be disclosed to an entity outside of the investigation unless the government used them as exhibits in court proceedings. Rule 6(e) Fed. R. Cr. P., which imposes confidentiality on matters occurring before the grand jury, typically impeded access to subpoenaed documents held by prosecutors or the court. Two factors in recent years have changed that set of expectations and significantly raised the likelihood that documents produced to the government could end up in the hands of plaintiffs' lawyers, competitors, the news media, and others.
First, administrative agencies routinely use investigative subpoenas to gather documents. We have seen, for instance, a significant increase in the use of health care or HIPAA administrative subpoenas, authorized in 2000 by 18 U.S.C. ' 3486. Unlike grand jury subpoenas, these other subpoenas do not impose confidentiality on documents produced under them. As a result, these materials may be more easily obtainable by a request under the Freedom of Information Act (FOIA), see 5 U.S.C. 552, or even voluntary disclosure by the government.
The other significant factor is the rise of private litigation that is a followup on, or sometimes parallel to, the government investigation. Ostensible representatives of classes of consumers or shareholders, customers or payors claiming in 'victim' lawsuits that they were affected by the alleged wrongdoing, and competitors are all looking to secure copies of documents produced to the government. These plaintiffs frequently assume the government knows more than they do are about the allegations of their complaint and knows where to find probative evidence, so they look to capitalize on the government's work product.
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