A civil investigative demand (CID) is a

discovery Discovery may refer to: * Discovery (observation), observing or finding something unknown * Discovery (fiction), a character's learning something unknown * Discovery (law), a process in courts of law relating to evidence Discovery, The Discover ...

tool used by a number of executive agencies in the United States to obtain information relevant to an investigation. By contrast with other discovery mechanisms, CIDs are typically issued before a complaint has been filed by the government in order to commence a lawsuit against the recipient of the CID. CIDs are considered a type of

administrative subpoena An administrative subpoena under U.S. law is a subpoena issued by a federal agency without prior judicial oversight. Critics say that administrative subpoena authority is a violation of the Fourth Amendment to the United States Constitution, whi ...

Background

civil litigation Civil law is a major branch of the law.Glanville Williams. '' Learning the Law''. Eleventh Edition. Stevens. 1982. p. 2. In common law legal systems such as England and Wales and the United States, the term refers to non-criminal law. The law ...

, the discovery process is intended to help clarify and narrow the issues in a case in advance of

trial In law, a trial is a coming together of parties to a dispute, to present information (in the form of evidence) in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court. The tribunal ...

. Parties request documents from one another in order to gather evidence, determine if a case is viable, examine what issues should be explored further, and consider what arguments they might make in court. CIDs are unusual, as compared to

civil procedure Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or case may be commenced; what kin ...

under ordinary discovery rules, for two reasons. First, they are issued before the relevant government agency has filed a complaint against the target of the demand. Ordinarily, a lawsuit must have commenced before one party can demand documents from the other party. Second, they are not reciprocal: the government can issue a CID to investigate a person before a complaint has been filed, but that person is not entitled to demand information from the government.

Legal authorization

A number of state and federal statutes authorize the issuance of CIDs.

Antitrust law

Federal

antitrust law Competition law is the field of law that promotes or seeks to maintain market competition by regulating anti-competitive conduct by companies. Competition law is implemented through public and private enforcement. It is also known as antitrust ...

authorizes the Attorney General to issue a CID " enever e or shehas reason to believe" that a person has information "relevant to a civil antitrust investigation" or to an investigation under section 3 of the International Antitrust Enforcement Assistance Act of 1994. Texas antitrust law gives the Attorney General of Texas similar authority.

Dodd–Frank

The Dodd–Frank Act gives the

Consumer Financial Protection Bureau The Consumer Financial Protection Bureau (CFPB) is an agency of the United States government responsible for consumer protection in the financial sector. CFPB's jurisdiction includes banks, credit unions, securities firms, payday lenders, mo ...

(CFPB) authority to issue civil investigative demands.

Richard Cordray Richard Adams Cordray (born May 3, 1959) is an American lawyer and politician serving as the COO of Federal Student Aid in the United States Department of Education. He served as the first director of the Consumer Financial Protection Bureau (CFP ...

, a former director of the CFPB, has described CIDs as a "crucial" tool for the CFPB's enforcement operations.

Consumer protection law

State

consumer protection laws Consumer protection is the practice of safeguarding buyers of goods and services, and the public, against unfair practices in the marketplace. Consumer protection measures are often established by law. Such laws are intended to prevent business ...

known as Unfair or Deceptive Acts or Practices statutes, which prevent various kinds of unfair commercial behavior, often authorize state attorneys general to issue CIDs.

FARA

Since 1991, the National Security Division of the

Department of Justice A justice ministry, ministry of justice, or department of justice is a ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of justice (minister for justice in a ...

(DOJ) has intermittently requested that the

Foreign Agents Registration Act The Foreign Agents Registration Act (FARA)2 U.S.C. § 611 ''et seq.'' is a United States law that imposes public disclosure obligations on persons representing foreign interests.

(FARA) be amended to include the authority to issue CIDs under FARA. A number of proposed bills would grant DOJ this authority, but none had been passed.

FCA and state analogues

The

False Claims Act The False Claims Act (FCA), also called the "Lincoln Law", is an American federal law that imposes liability on persons and companies (typically federal contractors) who defraud governmental programs. It is the federal government's primary litigat ...

(FCA) authorizes the Attorney General to issue CIDs requiring the recipient to produce documents relevant to an investigation under the FCA " enever e or shehas reason to believe that any person may be in possession, custody, or control of any documentary material or information relevant to a false claims law investigation." A CID may only be served under the FCA before the Attorney General has brought an action against the target of the investigation, after which the statute requires the government to use more traditional discovery tools such as the

subpoena A subpoena (; also subpœna, supenna or subpena) or witness summons is a writ issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of ...

. CIDs may be issued under the FCA at the initiative of the Attorney General or in relation to a ''

qui tam In common law, a writ of ''qui tam'' is a writ through which private individuals who assist a prosecution can receive for themselves all or part of the damages or financial penalties recovered by the government as a result of the prosecution. Its ...

'' action brought by a private

relator In mathematics, a presentation is one method of specifying a group. A presentation of a group ''G'' comprises a set ''S'' of generators—so that every element of the group can be written as a product of powers of some of these generators—and ...

. Courts have not imposed significant limits on the issuance of CIDs under the FCA, rendering their potential ambit quite expansive. One commentator has observed that it is "difficult[]" for a recipient to avoid complying with a CID under the FCA. , several state laws gave state attorneys general analogous powers to those under the FCA.

RICO

The Racketeer Influenced and Corrupt Organizations Act (RICO) authorizes CIDs. According to DOJ policy, they may be issued only with the consent of DOJ's Criminal Division.

Notes

Sources

* {{Cite journal, last=McFarland, first=Anthony J., date=1980, title=The Civil Investigative Demand: A Constitutional Analysis and Model Proposal, url=https://heinonline.org/HOL/P?h=hein.journals/vanlr33&i=1465, journal=

Vanderbilt Law Review The ''Vanderbilt Law Review'' is the flagship academic journal of Vanderbilt University Law School. The law review was founded in 1947 and is published six times per year. In 2018, it was ranked #11 among general-topic law review A law revie ...

, volume=33, issue=6, pages=1451–1492 United States discovery law United States civil procedure United States federal antitrust legislation