June 01, 2016

Uses and Implications of Government Reports

Whether and how to use government reports in civil litigation.

Benjamin Margulis

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With the proliferation of government investigations in recent years, we have all likely noticed a recurring pattern: The media announces a government investigation of an individual, company, or industry, followed shortly by news of a private lawsuit against the target of the investigation. There is a feeling of inevitability to this cycle—like the tide or taxes. After all, if the government investigation signals the possibility of wrongdoing, those investigations will lead to lawsuits. The investigation may also generate a report, giving rise to questions about whether and how to use the report in civil litigation.

This article considers ways to use government reports in preparing a civil suit and explores some of the major evidentiary questions that need to be answered before using the reports at summary judgment or in a trial. By and large, the following discussion treats all government reports the same way, regardless of whether they are written by a congressional subcommittee, an agency, or a legislative commission (e.g., the 9/11 Commission). Of course, this discussion cannot be comprehensive. Lawyerly ingenuity ensures that there is no adequate way to catalogue every potential use of a government report. Instead, consider what follows as a whistle-stop tour, designed primarily to highlight the potential uses for government reports in litigation.

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