Several recent rulings have highlighted the uncertainty surrounding the discoverability of information provided to the government, either as a part of a government investigation or subsequent proceedings. The decisions suggest that the views of courts on such issues may vary widely, which creates uncertainty for companies interacting with the government.
On March 14, 2016, the U.S. Securities and Exchange Commission (“SEC”) was able to avoid producing documents it had collected during a foreign bribery investigation of Wal-Mart Stores, Inc. in Robbins Geller Rudman & Dowd LLP v. U.S. Securities and Exchange Commission, No. 14-cv-02197 (M.D. Tenn.). In 2014, a law firm brought an action for injunctive relief pursuant to the Freedom of Information Act, claiming that the SEC had failed to provide materials in response to a request that Wal-Mart had provided to the SEC in connection with the agency’s Foreign Corrupt Practices Act investigation into Wal-Mart. Notably, some of these materials had already been disclosed by Wal-Mart itself as well as by the New York Times. However, the SEC refused to produce any materials in response to the request, claiming that the materials were subject to exemption 7(A) of the Freedom of Information Act, which allows an agency to withhold information that was “compiled for law enforcement purposes” where its disclosure “could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). The SEC sought summary judgment on the same issue.