Disclosure of Exculpatory Evidence in “Parallel” Civil and Criminal Investigations

When must the DOJ review files held by other federal agencies for exculpatory evidence? According to a recent opinion in a case in the Northern District of Illinois, which has potential discovery implications for white collar defendants and the government, the DOJ had an affirmative obligation to review the files of the CFTC for exculpatory information because the two agencies cooperated and coordinated throughout their respective investigations of two traders. Notably, the court looked beyond clear-cut instances of joint interviews or document sharing and considered circumstantial evidence of coordination. In a guest article, Ryan Rohlfsen, Michael Marzano, Brooke Cohen and Sean Adessky of Ropes & Gray explain how the opinion indicates that the DOJ’s increased tendency to work with – and often rely on – other agencies may trigger increased discovery obligations, forcing the DOJ to turn over exculpatory evidence beyond its own records. For more on regulatory cooperation, see “The Impact of the SEC-CFTC Memorandum of Understanding on Fund Managers” (Aug. 9, 2018).

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