What Is a Civil Investigative Demand?

A civil investigative demand (abbreviated to “CID”) is a type of administrative subpoena that government agencies use to gather evidence during their civil investigations. This potent law enforcement tool compels individuals and entities to answer questions, provide testimony, or produce documents related to ongoing civil investigations. Although the CID is connected to a civil investigation, an experienced attorney will need to consider and evaluate potential exposure to any criminal liability that could arise from the CID response. 

If you have received a CID yourself or are concerned that you might be issued one in the near future, understanding the nuances of this legal instrument will help you respond to the demand both appropriately and strategically. 

Read on as we explain what it means to receive a civil investigative demand, how to respond to a CID, and the most important steps to take once you have received a CID.

Who can issue CIDs, and why do they issue them?

Not everyone has the authority to issue civil investigative demands. Under the False Claims Act, federal entities may do so, such as:

• Department of Justice (DOJ)
• Consumer Financial Protection Bureau (CFPB)
• Federal Trade Commission (FTC)

In limited circumstances, State Offices of the Attorney General (OAG) may be authorized to issue CIDS under anti-fraud or consumer protection laws.

These agencies issue CIDs to gather information for cases involving civil regulatory matters, such as antitrust violations, illegal remuneration in violation of the Anti-Kickback Statute and Stark Law, deceptive trade practices, or fraud. 

According to 31 U.S.C. § 3733, which governs civil investigative demands, if the Attorney General (“or a designee”) has reason to believe that someone might be “in possession, custody, or control of any documentary material or information relevant to a false claims law investigation,” they can issue that person a civil investigative demand. 

So you received a CID—what now?

After receiving a civil investigative demand requiring you to answer questions, provide testimony, produce documents, or any combination of the three, you may be concerned about what comes next—and what it means for your future. While each situation is unique, we offer an overview of steps that individuals may need to take below. 

Important steps to take if you have received a CID

If you have received a civil investigative demand, the most important step for any individual is to secure legal representation immediately. Legal representation can help analyze your situation and provide targeted guidance to help you protect your rights. A major consideration is whether there is potential criminal liability attached to the investigation, and that will drive the response. Other measures to take may also include the following:

Put a legal hold in place

When you receive a civil investigative demand, your first step should be to institute a legal hold. Doing so will ensure that documents, communications, electronic files, and other materials that are relevant to the demand are preserved. 

Your legal counsel should help you navigate the requirements of this process so it is done correctly. If records are not preserved correctly, this could lead to evidence spoliation, sanctions from the court, and future legal consequences. 

Find out if you need to meet and confer with agency members

Next up is finding out whether you are legally required to meet and confer with members of the agency that issued your CID. If the answer is “yes,” there will be a deadline in place for this meeting—missing that deadline could place you in legal hot water and even make it impossible for you to challenge the CID itself. 

When you do meet with agency representatives, you should iron out any aspects of the demand that you do not understand or seek to limit the scope—this way, you will be able to comply fully with the CID. 

For instance, although the False Claims Act requires that all CIDs “state the nature of the conduct constituting the alleged violation of a false claims law which is under investigation,” there may nevertheless be elements that remain unclear to you. Make sure to clarify these during your meeting.

Collect relevant documents

Fully responding to and complying with a CID can be incredibly time-consuming and expensive, so the sooner you determine the scope of the request and start to collect relevant documents, the better off you will be. 

As you determine which documents are relevant to the demand, you should also pinpoint which of these documents contain privileged information—that is, info that is legally protected as private, such as communications between medical professionals and their patients. Experienced legal counsel can advise you on how to protect your privileged information while complying entirely with the CID.

Decide whether to challenge the CID

There are only certain cases in which you can challenge a CID, and most of the time, you won’t be challenging the entire CID. Instead, your attorney may advise you to challenge the CID’s scope, meaning how much the CID is asking for in total. 

Perhaps the CID you have received is broad enough in scope that you cannot reasonably comply within the agency’s requested time frame. If so, you can try to come to a more reasonable agreement with the agency, or you can file a motion to quash.

Additional: File a motion to quash the CID

The term “quash” refers to the legal process of terminating proceedings or motions or excluding evidence from trial. In the context of CIDs, to file a motion to quash means to throw out or modify the demand. 

You may or may not end up deciding to file a motion to quash in federal district court. But if you do, it is important to file the motion as soon as possible. In addition, while waiting on the motion’s outcome, you should do everything you can to abide by the CID. 

How to respond to a civil investigative demand

Once you have taken all the above steps—from putting a legal hold in place to determining whether to challenge the CID—you will need to respond to the CID. 

Most importantly, this involves submitting all the relevant documents the agency has demanded, except those containing privileged information. After the agency that issued the CID receives your submission, they might not reach out again, but your legal counsel can follow up to get more info about what to expect going forward.

Consult With an Experienced Attorney

After you have been issued a CID, working with robust legal counsel is the best way to protect your rights and interests while fully complying with agency demands. 

Dughi, Hewit & Domalewski’s attorneys have supported their clients as they successfully navigated numerous cases relating to the False Claims Act and responding to civil investigative demands. They will use their skill and extensive experience to help you do the same. 

To learn more, schedule your consultation with our team today.