The U.S. District Court for the Eastern District of New York recently rejected the government’s argument that statements from non-testifying witnesses collected during a wage and hour investigation were protected under the government-informant privilege. Secretary of Labor v. Yianna Food Corp. d/b/a Williston Town House Diners, et al., E.D.N.Y. Case No. 17-CV-6974.

Government agencies frequently assert the government-informant privilege to “withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of the law.” Roviano v. United States, 353 U.S. 53, 59 (1957). The informant’s privilege is designed to protect from retaliation individuals who give information to the government during investigations. The government often asserts the privilege during litigation against an employer to protect the individuals from whom it gathered information.

The privilege can create difficulty for an employer preparing for trial because the employer may not have access to potentially relevant information that it could use to defend the case. For example, a non-testifying individual may have given the government a statement that contradicts what a testifying witness will say at trial.

Fortunately, the government-informant privilege is not absolute. Where an informant’s identity is “essential to the fair determination of the case,” the government may be forced to reveal the informant’s name and the substance of the informant’s statement.

As trial approached in this case, the government produced statements from the individuals who appeared on its trial witness list, but it refused to produce anything from individuals from whom it obtained statements but would not be trial witnesses. The employers argued that this was unfair because the non-trial witnesses’ statements could contain information helpful to them in preparing to cross-examine the individuals who would testify during trial.

The district court agreed with the employers and ordered the government to produce several unredacted statements. After reviewing the statements at issue in camera, the court determined that several of the statements from non-witnesses referenced individuals who would be trial witnesses. Accordingly, the court found those statements would be relevant to trial preparation and the employers’ interest in having them outweighed the government’s interest in protecting its informants.

Lesson: Employers preparing for trial against the government should be aware the government may be withholding statements that could be helpful in defending against the government’s allegations. Employers should be prepared to seek court relief to ensure full access to relevant information.

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