Co-opted Cooperators Corporate Internal Investigations and Brady v. Maryland

Abstract

In 2019, the United States District Court for the Southern District of New York criticized the Department of Justice for “outsourc[ing] its investigation” of alleged LIBOR manipulation practices within Deutsche Bank to the bank and its lawyers. The decision to “outsource” had, in the court’s view, rendered the bank and its outside counsel agents of the government, and provided a basis for the defendant, a former Deutsche Bank employee, to claim that his statements to the bank’s lawyers had been compelled in violation of the Fifth Amendment.

This Note considers the effect of such outsourcing on a prosecutor’s duty to disclose evidence favorable to the accused under Brady v. Maryland. To do so, it imagines a scenario where a corporation facing criminal indictment undertakes a comprehensive internal investigation. The investigation, which is itself part of the company’s campaign to enter into a deferred prosecution agreement and avoid criminal charges, dredges up evidence of conduct that provides the basis for later charges against individual employees, as well as evidence that tends to exculpate them. This scenario sets up the central question: should the fruits of the outsourced investigation be considered part of the government’s file for the purposes of a Brady claim?

This Note argues that, where outsourced investigations make “the prosecution” indistinguishable from its corporate target, courts should consider answering this question in the affirmative. Using three doctrinal lenses to explore the relationship between the government and corporate cooperators, as well as case law touching on the issue, it offers a framework for enforcing the component of due process explicated in Brady where one could reasonably argue that the government constructively possesses all the information collected during a company-sponsored investigation.