February 24, 2009
Dear Justice :
This responds to your inquiry (08-90) asking how you should handle a “confidential” FBI Notice of Investigation about a party appearing before you, which was sent to you ex parte by the other side. You authorized me to discuss the status of the investigation with the Assistant US Attorney (AUSA) involved in the matter. The AUSA advised that, from his perspective, the investigation is "virtually complete" and that disclosure of the FBI notice to the defendant and defendant’s counsel is not likely to interfere with an ongoing investigation, nor is it likely to cause harm or endanger anyone. The AUSA commented that the defendant is already aware of the substance of the FBI notice.
Under these circumstances, you should disclose the FBI notice to both sides (see 22 NYCRR 100.3[B]).
Enclosed, for your convenience, is Opinion 05-78 addressing this issue.
Very truly yours,
George D. Marlow
Justice of the Supreme Court