DOJ Redaction Error in Motion to Conceal


Last year the Second Circuit ruled in United States v. Allen, 2017 WL 3040201 (2d Cir. July 19, 2017) that testimony compelled in a fraud investigation in the United Kingdom cannot be used for a criminal prosecution in the United States. This became an issue during an investigation by the Department of Justice into alleged rigging of the London InterBank Offered Rate by former Deutsche Bank traders Matthew Connolly and Gavin Black. The Department of Justice filed a motion to conceal, the publicly available version of which contained testimony of Mr. Black before UK investigators that was not redacted correctly. Mr. Black sought a Kastigar hearing which would require the DOJ to show that it did not rely on compelled testimony in its investigation. The motion to conceal was filed a by a division at the DOJ other than that which is conducting the LIBOR rigging investigation. The motion to conceal brief itself made the argument that Mr. Black was not entitled to a Kastigar hearing because the investigating attorneys did not have access to the testimony compelled in the UK. The DOJ acknowledged that an error in its redaction process allowed metadata to be manipulated. The case is United States v. Connolly, No.1:16-cr-00370 (S.D.N.Y.) .