D. Conneticut Notes Split re Whether Discovery During Litigation is Publicly Disclosed

Per U.S. ex rel Smith v. Yale Univ., 415 F.Supp.2d 58 (D. Conn. Feb. 14, 2006) in Footnote 7:

Although the Second Circuit adopted the Stinson approach in Kreindler, the circuits are split on how to treat discovery disclosed during litigation. Both the D.C. Circuit and the Seventh Circuit disagreed with the Stinson approach, holding that “discovery material which has not been filed with the court and is only theoretically available upon the public's request” is not “publicly disclosed” within the meaning of Section 3730(e)(4)(A). United States ex rel. Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 652 (D.C.Cir.1994); United States v. Bank of Farmington, 166 F.3d 853, 860 (7th Cir.1999). Every Court of Appeals to consider whether discovery material which has been filed with a court has been publicly disclosed within the meaning of Section 3730(e)(4)(A), however, has answered that question in the affirmative. See Quinn, 14 F.3d at 651 n. 4 (collecting cases). As the Second Circuit has already spoken on the issue, the approach adopted in Kreindler controls in this case and any information disclosed during discovery in the State Court Action to a party not under a “court imposed limitation as to its use” will be deemed “publicly disclosed.”


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