Legal Memorandum: Statute of Limitations and Discovery in RICO

Issue: Under the Federal Rules, in a RICO case, must discovery requests be limited to information generated or concerning events within the statute of limitations period?

A party may not assert that the statute of limitations period is the only relevant period for discovery.  To do so is wrong for at least two reasons.  First, with respect to the continuity element necessary to prove a “pattern of racketeering activity,” “the longer the time period in which predicate acts take place, the more likely continuity exists, establishing the racketeering pattern.”  Blue Cross and Blue Shield of New Jersey Inc. v. Phillip Morris Inc., 113 F. Supp. 345, 365 (E.D.N.Y. 2000).  There is no four-year limitation on proving continuity.  See 18 U.S.C. § 1961(5) (two or more predicate acts must occur within ten year period).  Thus, with regard to the continuity analysis it is relevant to establish that the defendant committed related predicate acts even more than four years before and even after the complaint is filed.  See, e.g., Tabas v. Tabas, 47 F.3d 1280, 1296 (3d Cir. 1995) (“as a regular way of doing business, defendants were fraudulently misrepresenting expenditures to benefit themselves and to deprive the [Estate] and its beneficiaries of their legitimate share of the profits . . . .  [T]hese practices, defendants’ regular way of doing business, continued even after plaintiffs’ complaint was filed.  As a consequence, plaintiffs have established a threat of continuing fraudulent conduct as required under an ‘open ended’ continuity analysis.)

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