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Using Civil Investigative Demand Responses to Further Policy Positions
Using Civil Investigative Demand Responses to Further Policy Positions
Civil investigative demands (CIDs) are a powerful tool used by federal agencies to obtain information during investigations into potential legal violations 1.
Understanding Civil Investigative Demands
CIDs allow federal agencies like the Department of Justice to compel the production of documents and testimony from companies or individuals 1 2.
They are similar to subpoenas but do not require court approval prior to being issued 3.
- Comply fully with the demand
- Petition to set aside or modify the demand
- Refuse to comply (risking being held in contempt) 1
The scope of CIDs is broad, with demands seeking information on business activities, documents, interrogatory answers, and deposition testimony 4.
Using CID Responses Strategically
While responding to CIDs can be burdensome, the information provided can also be used to further policy goals 5:
Highlighting Industry Burdens
CID responses require extensive internal reviews, document production, written submissions, and testimony. Quantifying the associated resource expenditure in responses can demonstrate the real costs of regulatory burdens on businesses and individuals. This data provides compelling evidence to reduce unnecessary demands in future investigations.
Identifying Overreach
If any demands seem unrelated to the scope of the investigation, this potential regulatory overreach can be evidenced in CID responses 1.
Documenting and challenging irrelevant CID requests establishes boundaries on investigations and protects entities from excessive demands.
Informing New Guidance
Information provided in responses may reveal issues not previously considered by regulators. For example, emerging technologies or foreign competitor actions highlighted in testimony may prompt agencies to provide new formal guidance to industry.
Building Relationships
Responding to CIDs requires extensive communication with agency staff. This regular contact can help build relationships between regulators and industry to promote cooperation and mutually beneficial policy outcomes.
Best Practices for Responding to CIDs
To optimize CID responses 6:
- Carefully assess the scope of demands and limit compliance to requests directly relevant to the stated investigation.
- Designate expert staff to oversee collection, review, and production to ensure consistency.
- Track and quantify all resources utilized throughout the response process.
- Prepare thoroughly for written and oral testimony procedures.
- Maintain open communication with agency staff throughout the process.
Conclusion
While civil investigative demands can be intimidating and burdensome, strategic responses to these inquiries can further policy goals. Quantifying regulatory burdens, challenging overreach, providing new insights, and building agency relationships are constructive outcomes from the CID process. Following best practices for responding enhances the likelihood of productive policy impacts rather than solely punitive outcomes.
References
Civil Investigative Demand Overview
DOJ’s Civil Investigative Demand Authority
Strategic Use of CID Responses