(S.D.N.Y. 1993) (discussing mail fraud statute, 18 U.S.C. 1341).
Plaintiff also seeks relief under New York's "whistle blower" statute (NY Labor Law 740), which permits an employee subjected to adverse personnel action for reporting hazards to public health or safety which violate laws or regulations to seek reinstatement, back pay and similar relief.
The United States Attorney, during investigation of the matter leading to a decision not to proceed, submitted material to the court in camera as permitted by 31 U.S.C. 3730(a)(3) seeking extensions of time during which the decision to proceed or not do so could be considered. The parties have agreed to unseal all such material except a Status Report (Docket # 6, filed December 28, 1992). Opposing positions have been submitted concerning whether or not the Status report should be made available to defendants. Because, as set forth below, examination of the document shows that it contains no confidential information, it is ordered unsealed together with all other sealed material in the court file of this case.
The Qui Tam statute evinces no specific intent to permit or deny disclosure of in camera material as a case proceeds. For contrast, see Baldrige v. Shapiro, 455 U.S. 345, 360-62, 71 L. Ed. 2d 199, 102 S. Ct. 1103 (1982) (Census Act). In permitting in camera submissions, the statute necessarily invests the court with authority to preserve secrecy of such items or make them available to the parties. Such decisions may be characterized as discovery matters either directly under, or closely analogous to those considered under, Fed.R.Civ.P. 26(c), which authorizes protective orders for protection of trade secrets and similar information. Resolution of disputes under Rule 26(c) is based on a pragmatic balancing of the need for and harm risked by, disclosures sought.
Where disclosure of confidential investigative techniques, of information which could jeopardize an ongoing investigation, or of matters which could injure non-parties is requested, courts have recognized the interest of the public in denying or deferring disclosure. See Friedman v. Bache, 238 U.S. App. D.C. 190, 738 F.2d 1336, 1341 (D.C. Cir. 1984); Black v. Sheraton Corp, 184 U.S. App. D.C. 46, 564 F.2d 531, 542 (D.C. Cir. 1977); Ass'n for Women in Science v. Califano, 185 U.S. App. D.C. 19, 566 F.2d 339, 343 (D.C. Cir. 1977).
No privilege is necessary for protection to be granted under Rule 26(c) if appropriate under the circumstances. See Gottlieb v. County of Orange, 151 F.R.D. 258 (S.D.N.Y. 1993).
In camera examination shows that the Status Report describes routine investigative procedures which anyone with rudimentary knowledge of investigative processes would assume would be utilized in the regular course of business. It contains no information about specific techniques such as what items might be looked for in an audit, what types of employees of an entity should be contacted and how, what laboratory tests might be utilized, or the like. By contrast, references concerning routine sources of information actually considered may be of some, albeit doubtless limited, use to the defense. There is no ground for retaining the Status Report under seal. See United States v. Zanfordino, 833 F. Supp. 429, 432-33 (S.D.N.Y. 1993).
Courts are required to examine their jurisdiction on their own motion if necessary, and under Fed.R.Civ.P. 1 should also ask the parties to address other potentially dispositive threshold issues presented in a case. Two such issues are raised by plaintiff's complaint: one pertains to plaintiff's New York Labor Law "whistle blower" claim in light of the exclusivity of remedy clause contained in Labor Law 740(7); the other concerns inclusion of income tax-related claims in plaintiff's complaint in light of the limitation of Qui Tam suits under 31 U.S.C. 3730 to claims for violation of 31 U.S.C. 3729.
Plaintiff is directed to submit a memorandum of law within 30 days of the date of this memorandum order setting forth any applicable reasons why both of these claims should not be dismissed.
Subsection 7 of New York Labor Law 740 provides that:
. . . institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under the common law.