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

When must the Department of Justice review files held by other federal agencies for exculpatory evidence? According to a recent opinion in the Northern District of Illinois case of United States v. Bases & Pacilio with potential discovery implications for white collar defendants and the government, the DOJ has 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 Bases 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 Bases 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. See “FCPA Resource Guide Second Edition in Practice” (Jan. 20, 2021).

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