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United States v. Gupta

United States District Court for the Southern District of New York

March 26, 2012, Decided

11 Cr. 907 (JSR); 11 Civ. 7566 (JSR)




That separate government agencies having overlapping jurisdiction will cooperate in the factual investigation of the same alleged misconduct makes perfect sense; but that they can then disclaim such cooperation to avoid their respective discovery obligations makes no sense at all.

During the factual investigation that preceded the bringing of these two actions - a criminal insider trading case and a parallel civil enforcement action, both brought against defendant Rajat Gupta - Assistant United States Attorneys ("AUSAs") from the United States Attorney's Office for the Southern District of New York ("USAO") and an attorney from the United States  [*493]  Securities and Exchange Commission ("SEC") conducted joint interviews of 44 witnesses. By contrast, the SEC separately conducted interviews of only two witnesses. At the joint interviews, the only person who took notes was an FBI agent assigned to the USAO. However, the SEC attorney who attended the joint interviews subsequently prepared memoranda summarizing the portions of the interview he deemed relevant, and, in one of the separate interviews,  [**3] took contemporaneous written notes of the interview.

Based on these facts, defendant Gupta argues he is entitled to disclosure of some or all of the SEC memoranda and notes through two avenues. First, in a motion made in the criminal case, he argues that the USAO has a "Brady" obligation to review the SEC's memoranda and notes and turn over any exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Second, in a motion made in the parallel civil action (and joined by his co-defendant there, Rajaratnam), Gupta argues that he is entitled to production of the memoranda and notes under Fed. R. Civ. P. 26(b) as "matter relevant to the subject matter involved in the action." In response, the USAO argues that it has no Brady obligation to review the SEC's materials, and the SEC asserts, inter alia, that its memoranda and notes are entitled to work product protection pursuant to Fed. R. Civ. P. 26(b)(3). Notwithstanding these objections, however, the SEC, joined by the USAO, has offered to have the SEC review its memoranda and notes and provide the defendant with any "Brady" material. See Letter Brief of the Government dated Feb. 23, 2012 ("Gov't 2/23/12 Br.") at 1; Letter Brief of  [**4] the Securities and Exchange Commission dated Feb. 23, 2012 ("SEC 2/23/12 Br.") at 1. Despite this helpful suggestion, the Court, after full consideration, concludes that it is the USAO that must, on these facts, review the SEC's memoranda and interview notes and disclose to defendant any "Brady" material therein.

Starting with the USAO's Brady obligations, the Supreme Court has held that the prosecutor "has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Kyles v. Whitley, 514 U.S. 419, 437, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995); accord United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998). Where the USAO conducts a "joint investigation" with another state or federal agency, courts in this Circuit have held that the prosecutor's duty extends to reviewing the materials in the possession of that other agency for Brady evidence. See, e.g., United States v. Upton, 856 F. Supp. 727, 749-50 (E.D.N.Y. 1994) (summarizing case law). In the words of Judge Weinfeld, any argument that the Government's duty does not extend so far merely because another agency, not the USAO, is in actual possession of the documents created or obtained as part  [**5] of the joint investigation is both "hypertechnical and unrealistic." See United States v. Shakur, 543 F. Supp. 1059, 1060 (S.D.N.Y. 1982).

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848 F. Supp. 2d 491 *; 2012 U.S. Dist. LEXIS 41134 **; 2012 WL 990779


Subsequent History: Motion denied by United States v. Gupta, 2012 U.S. Dist. LEXIS 45610 (S.D.N.Y., Mar. 26, 2012)

Motion denied by SEC v. Gupta, 2012 U.S. Dist. LEXIS 64205 (S.D.N.Y., Apr. 30, 2012)

Prior History: SEC v. Gupta, 2011 U.S. Dist. LEXIS 142125 (S.D.N.Y., Nov. 29, 2011)


interviews, documents, argues, disclosures, exculpatory, disclose, criminal case, investigations, witnesses, work product protection, preparing, agencies, jointly