The complaint is filed under seal for an initial period of 60 days. In most cases, the DoJ will ask the court for an extension of the 60 day period to allow it more time to investigate the allegations. There have been a number of cases in which the DoJ has extended the seal period for as long as two years or more. Two years is too long for the DoJ to decide whether to intervene or not. Be aware that when the DoJ keeps a case under seal for that length of time and then decides not to intervene, it is usually left in a state of disarray that makes it very difficult to reconstruct if you decide to litigate the action on your own. As a rule of thumb, six months is long enough for a qui tam case to remain under seal.

The purpose of the 60 day seal period is to allow the DoJ time to investigate the allegations to determine if they should intervene. Also, the seal period may allow the DoJ, actually the U.S. Attorney who has jurisdiction, to conduct a criminal investigation, if it is warranted, in order to obtain hard evidence through the use of certain investigative tools that may include the execution of a search warrant or conducting an undercover operation.

Maintaining the integrity of the seal is important in a qui tam action. There have been cases dismissed by the courts for violation of the seal provisions because of disclosures to the media or to the defendant. Violation of the seal provision that results in a premature disclosure to the defendant could thwart the government investigation and prevent it from obtaining important evidence that could determine whether they would intervene and subsequently prove your case.

In addition to the complaint, a relator must also file a written disclosure statement under seal that, according to 31 U.S.C. §3730(b)(2), contains "substantially all material evidence and information the person possesses." The primary reason for the disclosure statement is to provide the DoJ with the information necessary to conduct a proper investigation that will enable it to make a determination whether to intervene.

Submitting a disclosure statement can be tricky and there are some issues you should be aware of. As a result of various court decisions, the disclosure statement is discoverable. However, the relator is not required to provide all its evidence to the government as long as sufficient information is provided that will allow the government to properly investigate and make an informed decision. The disclosure statement also does not have to be filed simultaneously with the complaint. However, for all practical purposes, it is better to file the disclosure statement simultaneously or within a short period of time after the complaint is filed. If you decide not to file the disclosure statement simultaneously with the complaint, it would be wise to notify the DoJ or U.S. Attorney of your intentions.