Changes to the Local Civil Rules in the Eastern District of Virginia could be problematic for qui tam practice under the federal False Claims Act
Today’s post focuses on the Local Civil Rules in the U.S. District Court for the Eastern District of Virginia. More specifically, today’s post focuses on a handful of proposed changes to the Local Civil Rules and how those changes could adversely affect qui tam practice under the federal False Claims Act.
Fernando Galindo, in his official capacity as the Clerk of Court, gave notice of the proposed changes and invited comments no later than January 11, 2016. I encourage any and all lawyers who practice in this area to weigh in with a letter to Mr. Galindo. I attach here my own letter to Mr. Galindo as well as a letter from David Pearline, another practitioner in the EDVa.
One final introductory point — I have handled qui tam cases in state and federal courts all over the country, and I strongly feel that there is no better place to litigated a qui tam case (or any other kind of case) than the Eastern District of Virginia. There are many reasons why I feel that way, but one of the best things about practice in the EDVa is that there are very few local rules in the EDVa, and the ones we do have are short and sweet and cover basic administrative matters.
By way of contrast, in certain other federal courts, it is clear to me that the Court appointed a committee of distinguished lawyers and Judges who then did exactly what lawyers do best — they made it as complex as possible and went completely bananas with the local rules drafting, creating hundreds and hundreds of pages of very complex local rules governing everything from the use of tobacco products in private law firms to the exact dress code required of lawyers when attending a deposition.
But that is not what we did in the Eastern District of Virginia — we have very few local rules but the ones we have count.
Review of the Specific Potential Changes to Local Civil Rule 5
A more detailed review of the changes is available in my letter, but I want to review the most basic parts here.
The proposed amendment to Local Civil Rule 5(B) would be problematic because it would require the filing party to provide a description of any document filed under seal. The description would then be posted to the docket and available to the public.
Currently, in a sealed qui tam case in the Eastern District of Virginia, only the case number of a sealed qui tam case is available, with the parties listed as [UNDER SEAL v. UNDER SEAL].
At a first glance this new proposed change might not be a problem if nothing more is noted in the description “filing under seal in sealed qui tam case.” In theory I suppose the docket could just reveal the case number and [UNDER SEAL v. UNDER SEAL] together with the date each document is filed.
The problem is that even that little bit of information — the date of the original complaint’s filing, the dates various government memos and documents were filed, etc. — could ultimately provide defendants with some kind of information.
And make no mistake about it – some defense lawyers who practice in this area try to seek out as much information as they can, in any way they can. They use a variety of sophisticated tactics to try to discern whether a case is under seal somewhere and, if so, the posture of the sealed case.
Another proposed change concerns Local Civil Rule 5(C); the proposed change creates new requirements for a Motion to Seal. Counsel for qui tam relators file a Motion to Seal the case along with the initial Complaint. The new requirements found in this subsection would appear to complicate the process of filing a qui tam case by imposing new standards on anyone filing a Motion to Seal.
Subsection 5(C) seems to indicate that that subsection does not apply to filings under Local Civil Rule 5(B) — i.e., filings under seal required by statute — but I find the proposed rule a bit ambiguous. Moreover, the proposed new Rule 5(C) would suffer from all of the problems associated with subsection (B) of the proposed rule.
One final comment is that proposed Rule 5(E) requires parties filing anything under seal to submit the filing in a sealed envelope. This is, in my experience, impossible because the Marshals open up every envelope as it enters the Court.
Stay tuned, we shall see if these proposed local rule changes go through or if they are edited again.