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 In legal terminology, a complaint is any formal legal document that sets out the facts and legal reasons (see: cause of action) that the filing party or parties (the plaintiff(s)) believes are sufficient to support a claim against the party ...

has been filed by the government in order to commence a

lawsuit - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil actio ...

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, w ...

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 rel ...

, 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 tribun ...

. Parties request documents from one another in order to gather

evidence Evidence for a proposition is what supports this proposition. It is usually understood as an indication that the supported proposition is true. What role evidence plays and how it is conceived varies from field to field. In epistemology, eviden ...

, 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 ki ...

under ordinary discovery rules, for two reasons. First, they are issued before the relevant government agency has filed a

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 antitrus ...

authorizes the Attorney General to issue a CID " enever

e or she E, or e, is the fifth letter and the second vowel letter in the Latin alphabet, used in the modern English alphabet, the alphabets of other western European languages and others worldwide. Its name in English is ''e'' (pronounced ); plura ...

has 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, mor ...

(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 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 litig ...

(FCA) authorizes the

Attorney General In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general. In some jurisdictions, attorneys general also have exec ...

to issue CIDs requiring the recipient to produce documents relevant to an investigation under the FCA " enever

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