A recent decision in the parallel criminal and civil insider trading cases against Rajat Gupta, former member of the boards of directors at Goldman Sachs and Proctor & Gamble who is alleged to have provided insider information to Raj Rajaratnam of the Galleon Group, brings back to the forefront a long-standing discovery debate.1 This debate centers around what information a defendant is entitled to in such related cases where different agencies—namely, the U.S. Department of Justice (DOJ) and the Securities and Exchange Commission (SEC)—are involved, and where different rules of discovery traditionally apply in each context. In United States v. Gupta, the criminal prosecutor’s obligation to disclose exculpatory information was extended to include certain witness interview memos in the possession of the SEC. This ruling comes amid a move for reform in criminal discovery obligations in the aftermath of several high-profile cases in which discovery violations occurred, and is likely to be cited in the future by defendants charged in parallel cases.

In March 2012, U.S. District Judge Jed Rakoff, who is presiding over both cases against Gupta, ordered the SEC to turn over 44 memoranda of interviews conducted jointly by the agencies to the U.S. Attorney’s Office (USAO) so that prosecutors could review them for Brady material—evidence or information that is favorable to or tends to exculpate the defendant2—and promptly disclose any such material to the defense.

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