Nothing is more unnerving than receiving a subpoena from the Department of Justice (DOJ). Unlike private litigants, the DOJ has the statutory power to demand the production of documents, witnesses, and interrogatory responses, prior to making its decision to bring a case. Receiving such a subpoena, however, does not mean that you’ve done anything wrong.
The False Claims Act (FCA), 31 U.S.C. § 3729, et seq., provides the DOJ with authority to issue a Civil Investigative Demand (CID) requiring that the recipient produce documents, written interrogatories, and/or oral testimony that is transcribed by a court reporter. The FCA allows the DOJ to require the production of discovery within twenty days and the production of witnesses within seven, however DOJ attorneys will often permit a longer time to respond.
When the DOJ issues a CID it often, but not always, means that a whistleblower, also known as a relator, has filed a qui tam complaint in federal district court alleging FCA violations against you or your company. Such complaints are filed under seal, meaning that a defendant is not served with the complaint, nor is DOJ permitted to notify the defendant about the complaint, absent obtaining a partial seal lift from the judge. After receiving the complaint, and a copy of all material evidence and information that the whistleblower possesses, DOJ is afforded a period of 60 days to investigate the allegations and determine if it will proceed with the litigation. For practical purposes, the 60-day period is far less time than the DOJ needs to complete its investigation, and extensions are routinely granted by courts, allowing investigations to proceed for many months, and often years.
Depending on DOJ’s perception of the potential money at issue in the case, the investigation may be handled directly by a United States Attorney’s Office, or jointly with main justice’s Civil Fraud Section in Washington, D.C.
There are many questions that will arise immediately after receiving a CID, including the following:
- What steps should you take to collect relevant materials and information?
- How will these obligations impact current business operations?
- What are your obligations for preserving documents and other information?
- Should you utilize search terms for the collection of documents?
- How far back in time must you collect?
- Do you have any reporting requirements resulting from receipt of the CID?
- Do you have any insurance that will cover the costs of your response?
An experienced FCA attorney should be consulted as soon as possible to help you navigate through these decisions and others, as well as to interface with the DOJ on your behalf.
