Responding to Burdensome or Overly Broad FTC Civil Investigative Demands

Responding to Burdensome or Overly Broad FTC Civil Investigative Demands

When a company receives a civil investigative demand (CID) from the Federal Trade Commission, it can often feel overwhelming trying to respond, especially if the requests seem burdensome or overly broad. The FTC has broad authority to investigate potential violations of consumer protection laws, but companies do have some rights when responding to a CID.

Assessing the Scope of the FTC Investigation

The first step is to carefully review the CID and try to understand the scope of the FTC’s investigation. The CID should include a resolution from the FTC stating the nature and purpose of the investigation ^[1]. This will provide context for the information requests and can help assess whether they reasonably relate to the investigation.

If the purpose stated in the resolution seems overly broad or vague, that may form the basis for an objection. For example, if the resolution authorizes an investigation into “potential anticompetitive practices” without further detail, the company could argue the requests are not sufficiently tailored to a specific issue ^[2].

Evaluating Burden and Relevance

The company should also evaluate whether complying with the CID would be unduly burdensome or require producing information not reasonably relevant to the investigation. This involves assessing factors like:

• The number and breadth of document requests
• The timeframes covered
• The number of custodians involved
• The estimated cost and effort to retrieve and review responsive documents

If certain specifications seem disproportionate to the investigation’s scope, are duplicative of past productions, or inquire into sensitive or privileged information, the company can object on relevance or burden grounds ^[3].

Petition to Limit or Quash

The company can file a petition with the FTC Commissioner asking to limit or quash certain specifications in the CID. The petition must be filed within 20 days and should clearly state the objections and propose modifications to tailor the requests appropriately.

When asserting burden, it is helpful to provide concrete evidence through affidavits or expert testimony estimating the costs and resources required to fully respond. Prior FTC decisions limiting similar requests can also help demonstrate overbreadth or lack of relevance ^[4].

Seeking Judicial Review

If the FTC denies the petition, the company can seek judicial review in federal court. However, courts generally defer to the FTC’s broad investigative authority, so the burden remains high to prove unreasonableness or that requests fall outside the agency’s jurisdiction ^[5].

Nonetheless, seeking judicial review is still an important step to challenge problematic portions of a CID and protect the company’s rights. At a minimum, negotiations with the FTC may lead to beneficial limitations on scope even if court intervention is not secured.

Negotiating Limitations

Before resorting to litigation, the company should negotiate cooperatively with the FTC to narrow overbroad specifications. While the FTC cannot compromise on requests clearly within the purview of its investigation, discussions can focus on reducing burden through sampling protocols, date restrictions, or custodian limitations ^[6].

If negotiations reach an impasse, the company can reassert its objections through a petition or in court. But working constructively with FTC staff will demonstrate reasonableness and good faith efforts to respond appropriately.

Avoiding Privilege Waivers

The company must also be very careful not to inadvertently waive privileges or protections when responding to a CID. It is advisable to enter a confidentiality agreement with the FTC early in the process to guard against public disclosure of sensitive business information or trade secrets ^[7].

Additionally, the company should clearly designate any inadvertently produced privileged materials, such as attorney-client communications or attorney work product, in accordance with Federal Rule of Evidence 502. This avoids blanket privilege waivers and limits the waiver to that specific disclosure.

Avoiding Follow-On Litigation

The goal when responding to an FTC CID is to provide enough information to satisfy the investigation without fueling further enforcement actions. Admissions of past wrongdoing should be avoided. Instead, responses should emphasize the company’s commitment to compliance and willingness to remedy any potential issues.

If subsequent litigation does occur, early production of privileged documents or admissions made to FTC staff could come back to haunt the company. Counsel should always bear this risk in mind when interacting with agency representatives or answering specifications ^[8].

Takeaways

Responding to an expansive FTC CID can be a daunting task, but understanding the process and protecting your rights is critical. Companies should:

• Carefully analyze the purpose and scope of FTC information requests
• Object to unduly burdensome or irrelevant specifications
• Attempt to negotiate reasonable limitations on scope
• Avoid over-disclosure of sensitive business information
• Prevent inadvertent privilege waivers

With the help of experienced legal counsel, companies can respond appropriately to CIDs and manage the inquiry without further escalation.