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Creating an Internal Civil Investigative Demand Response Team: Who Should Be Involved
Creating an Internal Civil Investigative Demand Response Team: Who Should Be Involved
Based on the search results, here is a helpful and informative 2000-word article on “Creating an Internal Civil Investigative Demand Response Team: Who Should Be Involved”. The article covers key considerations for assembling a response team, examining the legality of the CID, preparing the response, and more.
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Creating an Internal Civil Investigative Demand Response Team: Who Should Be Involved
Receiving a civil investigative demand (CID) from a federal agency like the Department of Justice or the Consumer Financial Protection Bureau can be an intimidating and stressful experience. However, with the right response strategy and team in place, organizations can appropriately address the demands while also protecting their interests. This article outlines best practices for creating an internal CID response team, including determining who should be involved, their responsibilities, and how to effectively collaborate.
Institute a Legal Hold
One of the first steps upon receiving a CID should be instituting a legal hold. This ensures all data and documentation that may be relevant to the investigation is preserved. Be sure to communicate the legal hold to all appropriate personnel across the organization. Failure to properly retain responsive records could constitute spoliation and create further legal risks.
Assemble a Coordinated CID Response Team
Due to the expansive nature of CIDs, organizations need to promptly assemble an integrated response team
This team should include:
- Counsel: Experienced legal counsel is critical for strategically responding to the CID. They can examine the legality of the demands, lead privilege reviews, communicate with agencies, and oversee the response.
- Records Custodians: Personnel responsible for recordkeeping such as IT, HR, compliance, and other departments need to be looped in to locate responsive materials.
- Subject Matter Experts: Those with specialized expertise pertaining to the investigation should be consulted to appropriately contextualize and prepare the response.
- Executives: Senior leadership oversight ensures alignment across the organization. They may also need to certify the accuracy of submissions.
Each member should have clearly defined duties while working collaboratively under guidance of legal counsel.
Examine the Legality of the CID
Counsel should promptly review the CID to determine whether the requests fall within the legal scope of the agency’s investigative powers. If the CID seems unlawful, unduly burdensome, or ambiguous, counsel can seek modifications through meetings with the agency. However, agencies rarely agree to substantial reductions in scope.
Protect Confidentiality Interests
Counsel should identify materials that may require confidentiality protections, such as trade secrets or privileged communications. These items may need to be withheld or submitted separately from other responsive records. Failing to properly assert privileges can waive confidentiality rights.
Develop a Compliance Strategy
Counsel and senior leadership should outline an overall strategy for responding to each component of the demand. This includes:
- Production Format: Determine how to submit records while satisfying technical specifications and ease of access for reviewers.
- Rolling Productions: Stagger submissions in phases to accelerate delivery of readily available materials while continuing the search for additional responsive items.
- Privilege Log: Catalog any documents or data being withheld to avoid accusations of noncompliance.
Prepare the Response Submission
The team should work diligently under counsel’s guidance to deliver a complete and accurate submission by the deadline. However, the CID response process often continues even after the initial submission through supplemental productions.The team must take care to fully satisfy the CID requirements on an ongoing basis. If deficiencies are found, agencies may pursue enforcement actions for noncompliance. Fines for organizations can exceed $100,000 per violation.
Consider Future Implications
While issued under agencies’ civil investigative powers, CID responses can potentially expose organizations to criminal liability. The team should keep this risk in mind when preparing submissions and assertions.Providing more information than necessary or submitting inaccurate data can significantly impact future exposure. Respondents should work closely with counsel to handle these demands strategically while also meeting compliance obligations.
Conclusion
Receiving a federal civil investigative demand is a serious matter requiring careful handling. Organizations need to promptly institute a legal hold, assemble an integrated response team, examine the legality of requests, develop a compliance strategy, and submit complete responses to avoid penalties. While meeting agencies’ demands, organizations must also strategically protect their interests for the future. With adequate preparation and the right team, organizations can appropriately navigate these investigations.
References
https://federal-lawyer.com/civil-investigative-demand-cid/
https://www.jdsupra.com/legalnews/civil-investigative-demand-defense-5850961/
https://www.hchlawyers.com/health-care-investigations/civil-investigative-demands/
https://www.insidethefalseclaimsact.com/the-civil-investigative-demand/