Crafting a Civil Investigative Demand Response Strategy Centered on Cooperation

Crafting a Civil Investigative Demand Response Strategy Centered on Cooperation

Receiving a civil investigative demand (CID) from the Department of Justice can be an intimidating and concerning experience for any company. However, developing an effective CID response strategy focused on cooperation with the DOJ’s investigation can help mitigate risks and lead to the best possible outcome.

Understanding the Context and Scope of the Investigation

The first step is gaining clarity on why your company is being investigated by the DOJ. CIDs specify the nature and scope of the investigation, the specific information and documents being requested, and the timeframe to respond. Thoroughly analyzing this information is crucial for mapping out your response strategy.

• What practices, products, or services are under scrutiny?
• What timeframe is the DOJ looking at?
• Are there any clues indicating larger industry sweeps or probes?

Gleaning key context early allows you to prepare responses and arguments tailored to the investigation’s purpose and boundaries.

Assembling the Right CID Response Team

Tackling a DOJ investigation requires a multidisciplinary task force with legal, compliance, and subject matter expertise. Core members should include:

• Outside counsel – Experienced federal regulatory attorneys offer vital perspective for high-stakes government inquiries.
• In-house counsel – Understand company processes and data systems needed to collect responsive documents.
• Compliance officers – Provide compliance program structure and controls context.
• IT and records personnel – Assist in searching data sources for responsive info.
• Business/sales unit managers – Offer critical insight on documents related to specific products, services, or conduct.

This cross-functional team allows you to conduct comprehensive data collection, review, and production aligned with the CID’s specifications.

Verifying Lawful Basis and Scope

While agencies like the DOJ have broad investigative authority, CID powers are not limitless. Working with experienced counsel, determine whether the CID meets key legal requirements regarding:

• Jurisdictional authority to issue the demand
• Reasonable cause to inquire into suspected violations of law
• Reasonably relevant information and documents being requested
• Reasonable time period to respond

If the CID seems excessive or unfounded, petitioning to set aside or modify the demand may be an option. Your counsel can file such request with the DOJ’s Office of Enforcement Operations.

Crafting Your Production Strategy

The DOJ expects full compliance with lawful CIDs. Noncompliance risks substantial fines and other sanctions. An effective production strategy includes:

• Good faith efforts – Demonstrating reasonableness and responsiveness helps build credibility.
• Rolling productions – Staged document releases help meet deadlines and allow dialogue with investigators.
• Privilege considerations – Logically assert and describe any documents withheld as privileged.
• Affidavits – Submit declarations describing production procedures, data systems, and verification of completeness.

Memorializing due diligence provides helpful records if any production issues arise later.

Table Highlighting Key Strategy Elements

Considering DOJ Meeting Requests

The DOJ frequently requests meetings with companies under investigation to discuss produced documents, probe additional areas, or hear defenses or mitigating arguments. Approaching such meetings strategically is vital:

• Thorough preparation ensures you can provide helpful information while protecting sensitive data.
• Declining certain meetings may be prudent if the DOJ’s inquiry direction seems unreasonable.
• Having counsel present prevents statements being held against the company.
• View meetings as opportunities to transparently showcase compliance efforts and controls.

Evaluating Your Cooperation and Results

Throughout the CID process, assess whether your cooperation aligns with the DOJ’s Principles of Federal Prosecution of Business Organizations, which rewards:

• Timely and voluntary self-disclosure of wrongdoing
• Willingness to provide truthful and complete information relative to the wrongdoing
• Willingness to cooperate in the investigation of company agents
• Pre-existing compliance programs and controls

While not guaranteed, demonstrating sincere efforts in these areas may lead to more favorable case resolutions – including rare non-prosecution or deferred prosecution agreements.

Resources

For additional guidance when facing a DOJ civil investigation, check out these useful materials:

• Reddit Thread – Tips for Responding to CIDs
• Quora Post – Best Practices for Responding to CIDs
• Avvo – Responding to a DOJ Civil Investigative Demand
• Lawinfo Overview – Civil Investigative Demands