United States of America, Ex Rel. John Kurzman v. Microsoft Corp.
- Lorna Schofield
- 1:19-cv-04270
- U.S. District Court · Southern District of New York
- 3
In United States ex rel. Kurzman v. Microsoft, Judge Schofield granted the Government’s request to keep earlier investigative submissions sealed.
The order keeps the Government’s earlier investigative submissions from public disclosure while preserving the confidentiality of information about its False Claims Act investigation. The opinion does not state that it changed the parties’ underlying claims or defenses.
What happened
United States, et al. ex rel. Kurzman v. Microsoft Corp., et al. is a False Claims Act case involving the Government’s investigation after the action was unsealed. The Government asked the court to keep its earlier investigative submissions private.
The Government said those submissions described its investigative steps, plans, methods, witnesses, records, and interim views. It argued that the materials were protected attorney work product and by the law-enforcement privilege, and that disclosure could interfere with investigations and discourage candid reports to courts.
Judge Schofield granted the application. The order directed that the Government’s ex parte submissions filed before the order remain under seal and not be made public; it did not decide the underlying False Claims Act allegations.
The detailed version
- United States of America, Ex Rel. John Kurzman v. Microsoft Corp. · No. 1:19-cv-04270
- Lorna Schofield
- Oct. 31, 2022
Background
This action was filed under seal under the False Claims Act, a federal law addressing certain claims for payment made to the Government. The court had previously ordered the action unsealed and directed the parties to refile certain documents publicly. The Government then asked the court to keep its earlier one-sided submissions to the court under seal.
The submissions were status reports about the Government’s interim investigative work, plans, methods, and impressions. The Government’s letter stated that the submissions discussed witnesses interviewed, data collected and reviewed, consulting experts, records analyzed, and methods for identifying and approaching potential witnesses.
Government’s Arguments
The Government argued that the False Claims Act requires eventual unsealing of the relator’s complaint but does not similarly require public disclosure of the Government’s earlier investigative submissions. It also argued that keeping those submissions sealed would support candid reports to the court when the Government seeks additional time to investigate.
The Government further argued that the materials contained attorneys’ mental impressions, conclusions, opinions, and legal theories protected as attorney work product. It also invoked the law-enforcement privilege, which protects information about investigative techniques, sources, witnesses, personnel, and ongoing investigations from disclosure when disclosure could interfere with law enforcement.
Ruling
The court granted the application for substantially the reasons stated in the Government’s letter. The court ordered that the Government’s ex parte submissions filed before the order remain under seal and not be made public.
This was a sealing ruling. The opinion did not decide whether the False Claims Act allegations were valid, whether Microsoft was liable, or whether the Government would take over prosecution of any claim.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.