Judge Ericksen stated however, that the FRE do not apply to discovery.Second, BSC argued that public policy requires the court to protect communications between defendants and the government in qui tam cases and that allowing disclosure of these communications would hinder the government’s ability to settle FCA cases. Judge Ericksen side-stepped BSC’s policy argument, turning instead to the language in the FCA governing Civil Investigative Demands (CIDs) (31 U.S.C. § 3733). Judge Ericksen determined that the FCA CID provisions prohibit the government from disclosing materials while in the possession of the government but do not prohibit the defendant from disclosing those materials in discovery.

What Is a Civil Investigative DemandA civil investigative demand (CID) is a tool, like a subpoena, that the government uses to obtain documents and information to investigate potential violations of the False Claims Act.The False Claims Act expressly authorizes the government to use civil investigative demands in False Claims Act investigations and describes the process the government must follow, 31 U.S.C. § 3733. Through a CID, the government can require any person or entity to:Produce documentsAnswer written interrogatoriesGive oral testimonyThe United States may investigate potential violations of the False Claims Act on its own initiative or after the filing of a qui tam complaint, as we’ve discussed in other posts.

aims Act investigations, how you respond to a CID can either protect your company or expose it to some significant legal liability. Dr. Nick Oberheiden is a CID defense lawyer at the national law firm Oberheiden P.C. and has helped numerous clients navigate this tricky step during False Claims Act investigations. Here is what you need to know about CIDs, as well as a few general tips for how to respond to them.How Do CIDs Work?A CID is a formal request for information that is backed up by criminal contempt charges, much like a subpoena. Unlike a subpoena, though, Civil Investigative Demands (CIDs) are administrative subpoenas issued by a law enforcement agency, rather than by a court. This means that there does not need to be a probable cause showing before it is issued.Not all federal law enforcement agencies have the authority to issue a CID, though, and the DOJ can only issue one for antitrust violations or alleged False Claims Act violations. When it comes to the FCA, federal law (31 U.S.C. § 3733) gives the DOJ the authority to issue a CID to anyone believed to have information relevant to an FCA investigation and demand:Documentary evidenceAnswers to written interrogatories Oral testimonyWhat is the FCA?The False Claims Act is a federal law that punishes anyone who submits a wrongful or false claim for compensation from a federal government source of funding. It gets invoked most often in the context of healthcare fraud, where a doctor or other healthcare provider improperly bills Medicare or Medicaid. However, it also comes up in federal government contractor situations.Importantly, the FCA has both a civil and criminal prong to it. The criminal side is, generally speaking, for conduct that involved the intent to defraud. The civil side is for conduct without that intent. This means you may undergo civil procedure and can face civil liability under the FCA for accidents, like mistakenly overbilling Medicaid. The penalties for making false claims for compensation against the

The United States Department of Justice (DOJ) is authorized by the False Claims Act (FCA) to issue Civil Investigative Demands, commonly known as CIDs. 31 U.S.C. § 3733. The DOJ has made increasing use of CIDs to obtain information from health care providers.

Civil Isn't Necessarily Limited to Civil. The Justice Department may serve a CID where there exists “reason to believe that any person may be in possession, custody, or control of any documentary material or information relevant to a False Claims Act investigation . . . .” 31 U.S.C. § 3733(a)(1). ACID is similar to a grand jury subpoena, but the government has more flexibility in using the information obtained pursuant to a CID because it could be shared with a qui tam whistleblower or government investigatorlooking into a potential criminal case, too.

Finally, all entities were found to have a relationship with the state itself to render them sufficiently close to make them an entity of the respective states.For the reasons discussed in the Opinion, the district court dismissed the complaints against each defendant because none were a "person" who may be sued by a qui tam relator under the FCA.If you have any questions about this alert, please contact the primary author of this article, Steve Cave, or the other Womble Carlyle Government Contracts attorneys, Jim Kearney or Holly Svetz.For a printer friendly link to this alert, please click here.1. 31 U.S.C. § 3729. 2. http://www.justice.gov/iso/opa/civil/speeches/2012/civ-speech-1206071.html. 3. 31 U.S.C. § 3733(a)(1). The statute also requires issuance of the CID prior to making an election under § 3730(b).

First, pursuant to FERA, information obtained through CIDs may now be shared with "any qui tam relator if the Attorney General or designee determine it is necessary as part of any false claims act investigation." 31 U.S.C. § 3733(a)(1)(D) (as amended by FERA). Armed with such information, a relator can now more easily satisfy the requirements of Fed. R. Civ. Pro. 9(b). Second, in situations in which there are parallel criminal and civil investigations, the government can use CIDs to compel testimony that previously could be obtained only through use of a grand jury subpoena.