31 U.S.C. § 3733 : US Code - Section 3733: Civil investigative demands

Search 31 U.S.C. § 3733 : US Code - Section 3733: Civil investigative demands

(a) In General. -
(1) Issuance and service. - Whenever the Attorney General has
reason to believe that any person may be in possession, custody,
or control of any documentary material or information relevant to
a false claims law investigation, the Attorney General may,
before commencing a civil proceeding under section 3730 or other
false claims law, issue in writing and cause to be served upon
such person, a civil investigative demand requiring such person -

(A) to produce such documentary material for inspection and
copying,
(B) to answer in writing written interrogatories with respect
to such documentary material or information,
(C) to give oral testimony concerning such documentary
material or information, or
(D) to furnish any combination of such material, answers, or
testimony.
The Attorney General may not delegate the authority to issue
civil investigative demands under this subsection. Whenever a
civil investigative demand is an express demand for any product
of discovery, the Attorney General, the Deputy Attorney General,
or an Assistant Attorney General shall cause to be served, in any
manner authorized by this section, a copy of such demand upon the
person from whom the discovery was obtained and shall notify the
person to whom such demand is issued of the date on which such
copy was served.
(2) Contents and deadlines. -
(A) Each civil investigative demand issued under paragraph
(1) shall state the nature of the conduct constituting the
alleged violation of a false claims law which is under
investigation, and the applicable provision of law alleged to
be violated.
(B) If such demand is for the production of documentary
material, the demand shall -
(i) describe each class of documentary material to be
produced with such definiteness and certainty as to permit
such material to be fairly identified;
(ii) prescribe a return date for each such class which will
provide a reasonable period of time within which the material
so demanded may be assembled and made available for
inspection and copying; and
(iii) identify the false claims law investigator to whom
such material shall be made available.
(C) If such demand is for answers to written interrogatories,
the demand shall -
(i) set forth with specificity the written interrogatories
to be answered;
(ii) prescribe dates at which time answers to written
interrogatories shall be submitted; and
(iii) identify the false claims law investigator to whom
such answers shall be submitted.
(D) If such demand is for the giving of oral testimony, the
demand shall -
(i) prescribe a date, time, and place at which oral
testimony shall be commenced;
(ii) identify a false claims law investigator who shall
conduct the examination and the custodian to whom the
transcript of such examination shall be submitted;
(iii) specify that such attendance and testimony are
necessary to the conduct of the investigation;
(iv) notify the person receiving the demand of the right to
be accompanied by an attorney and any other representative;
and
(v) describe the general purpose for which the demand is
being issued and the general nature of the testimony,
including the primary areas of inquiry, which will be taken
pursuant to the demand.
(E) Any civil investigative demand issued under this section
which is an express demand for any product of discovery shall
not be returned or returnable until 20 days after a copy of
such demand has been served upon the person from whom the
discovery was obtained.
(F) The date prescribed for the commencement of oral
testimony pursuant to a civil investigative demand issued under
this section shall be a date which is not less than seven days
after the date on which demand is received, unless the Attorney
General or an Assistant Attorney General designated by the
Attorney General determines that exceptional circumstances are
present which warrant the commencement of such testimony within
a lesser period of time.
(G) The Attorney General shall not authorize the issuance
under this section of more than one civil investigative demand
for oral testimony by the same person unless the person
requests otherwise or unless the Attorney General, after
investigation, notifies that person in writing that an
additional demand for oral testimony is necessary. The Attorney
General may not, notwithstanding section 510 of title 28,
authorize the performance, by any other officer, employee, or
agency, of any function vested in the Attorney General under
this subparagraph.
(b) Protected Material or Information. -
(1) In general. - A civil investigative demand issued under
subsection (a) may not require the production of any documentary
material, the submission of any answers to written
interrogatories, or the giving of any oral testimony if such
material, answers, or testimony would be protected from
disclosure under -
(A) the standards applicable to subpoenas or subpoenas duces
tecum issued by a court of the United States to aid in a grand
jury investigation; or
(B) the standards applicable to discovery requests under the
Federal Rules of Civil Procedure, to the extent that the
application of such standards to any such demand is appropriate
and consistent with the provisions and purposes of this
section.
(2) Effect on other orders, rules, and laws. - Any such demand
which is an express demand for any product of discovery
supersedes any inconsistent order, rule, or provision of law
(other than this section) preventing or restraining disclosure of
such product of discovery to any person. Disclosure of any
product of discovery pursuant to any such express demand does not
constitute a waiver of any right or privilege which the person
making such disclosure may be entitled to invoke to resist
discovery of trial preparation materials.
(c) Service; Jurisdiction. -
(1) By whom served. - Any civil investigative demand issued
under subsection (a) may be served by a false claims law
investigator, or by a United States marshal or a deputy marshal,
at any place within the territorial jurisdiction of any court of
the United States.
(2) Service in foreign countries. - Any such demand or any
petition filed under subsection (j) may be served upon any person
who is not found within the territorial jurisdiction of any court
of the United States in such manner as the Federal Rules of Civil
Procedure prescribe for service in a foreign country. To the
extent that the courts of the United States can assert
jurisdiction over any such person consistent with due process,
the United States District Court for the District of Columbia
shall have the same jurisdiction to take any action respecting
compliance with this section by any such person that such court
would have if such person were personally within the jurisdiction
of such court.
(d) Service Upon Legal Entities and Natural Persons. -
(1) Legal entities. - Service of any civil investigative demand
issued under subsection (a) or of any petition filed under
subsection (j) may be made upon a partnership, corporation,
association, or other legal entity by -
(A) delivering an executed copy of such demand or petition to
any partner, executive officer, managing agent, or general
agent of the partnership, corporation, association, or entity,
or to any agent authorized by appointment or by law to receive
service of process on behalf of such partnership, corporation,
association, or entity;
(B) delivering an executed copy of such demand or petition to
the principal office or place of business of the partnership,
corporation, association, or entity; or
(C) depositing an executed copy of such demand or petition in
the United States mails by registered or certified mail, with a
return receipt requested, addressed to such partnership,
corporation, association, or entity at its principal office or
place of business.
(2) Natural persons. - Service of any such demand or petition
may be made upon any natural person by -
(A) delivering an executed copy of such demand or petition to
the person; or
(B) depositing an executed copy of such demand or petition in
the United States mails by registered or certified mail, with a
return receipt requested, addressed to the person at the
person's residence or principal office or place of business.
(e) Proof of Service. - A verified return by the individual
serving any civil investigative demand issued under subsection (a)
or any petition filed under subsection (j) setting forth the manner
of such service shall be proof of such service. In the case of
service by registered or certified mail, such return shall be
accompanied by the return post office receipt of delivery of such
demand.
(f) Documentary Material. -
(1) Sworn certificates. - The production of documentary
material in response to a civil investigative demand served under
this section shall be made under a sworn certificate, in such
form as the demand designates, by -
(A) in the case of a natural person, the person to whom the
demand is directed, or
(B) in the case of a person other than a natural person, a
person having knowledge of the facts and circumstances relating
to such production and authorized to act on behalf of such
person.
The certificate shall state that all of the documentary material
required by the demand and in the possession, custody, or control
of the person to whom the demand is directed has been produced
and made available to the false claims law investigator
identified in the demand.
(2) Production of materials. - Any person upon whom any civil
investigative demand for the production of documentary material
has been served under this section shall make such material
available for inspection and copying to the false claims law
investigator identified in such demand at the principal place of
business of such person, or at such other place as the false
claims law investigator and the person thereafter may agree and
prescribe in writing, or as the court may direct under subsection
(j)(1). Such material shall be made so available on the return
date specified in such demand, or on such later date as the false
claims law investigator may prescribe in writing. Such person
may, upon written agreement between the person and the false
claims law investigator, substitute copies for originals of all
or any part of such material.
(g) Interrogatories. - Each interrogatory in a civil
investigative demand served under this section shall be answered
separately and fully in writing under oath and shall be submitted
under a sworn certificate, in such form as the demand designates,
by -
(1) in the case of a natural person, the person to whom the
demand is directed, or
(2) in the case of a person other than a natural person, the
person or persons responsible for answering each interrogatory.
If any interrogatory is objected to, the reasons for the objection
shall be stated in the certificate instead of an answer. The
certificate shall state that all information required by the demand
and in the possession, custody, control, or knowledge of the person
to whom the demand is directed has been submitted. To the extent
that any information is not furnished, the information shall be
identified and reasons set forth with particularity regarding the
reasons why the information was not furnished.
(h) Oral Examinations. -
(1) Procedures. - The examination of any person pursuant to a
civil investigative demand for oral testimony served under this
section shall be taken before an officer authorized to administer
oaths and affirmations by the laws of the United States or of the
place where the examination is held. The officer before whom the
testimony is to be taken shall put the witness on oath or
affirmation and shall, personally or by someone acting under the
direction of the officer and in the officer's presence, record
the testimony of the witness. The testimony shall be taken
stenographically and shall be transcribed. When the testimony is
fully transcribed, the officer before whom the testimony is taken
shall promptly transmit a copy of the transcript of the testimony
to the custodian. This subsection shall not preclude the taking
of testimony by any means authorized by, and in a manner
consistent with, the Federal Rules of Civil Procedure.
(2) Persons present. - The false claims law investigator
conducting the examination shall exclude from the place where the
examination is held all persons except the person giving the
testimony, the attorney for and any other representative of the
person giving the testimony, the attorney for the Government, any
person who may be agreed upon by the attorney for the Government
and the person giving the testimony, the officer before whom the
testimony is to be taken, and any stenographer taking such
testimony.
(3) Where testimony taken. - The oral testimony of any person
taken pursuant to a civil investigative demand served under this
section shall be taken in the judicial district of the United
States within which such person resides, is found, or transacts
business, or in such other place as may be agreed upon by the
false claims law investigator conducting the examination and such
person.
(4) Transcript of testimony. - When the testimony is fully
transcribed, the false claims law investigator or the officer
before whom the testimony is taken shall afford the witness, who
may be accompanied by counsel, a reasonable opportunity to
examine and read the transcript, unless such examination and
reading are waived by the witness. Any changes in form or
substance which the witness desires to make shall be entered and
identified upon the transcript by the officer or the false claims
law investigator, with a statement of the reasons given by the
witness for making such changes. The transcript shall then be
signed by the witness, unless the witness in writing waives the
signing, is ill, cannot be found, or refuses to sign. If the
transcript is not signed by the witness within 30 days after
being afforded a reasonable opportunity to examine it, the
officer or the false claims law investigator shall sign it and
state on the record the fact of the waiver, illness, absence of
the witness, or the refusal to sign, together with the reasons,
if any, given therefor.
(5) Certification and delivery to custodian. - The officer
before whom the testimony is taken shall certify on the
transcript that the witness was sworn by the officer and that the
transcript is a true record of the testimony given by the
witness, and the officer or false claims law investigator shall
promptly deliver the transcript, or send the transcript by
registered or certified mail, to the custodian.
(6) Furnishing or inspection of transcript by witness. - Upon
payment of reasonable charges therefor, the false claims law
investigator shall furnish a copy of the transcript to the
witness only, except that the Attorney General, the Deputy
Attorney General, or an Assistant Attorney General may, for good
cause, limit such witness to inspection of the official
transcript of the witness' testimony.
(7) Conduct of oral testimony. - (A) Any person compelled to
appear for oral testimony under a civil investigative demand
issued under subsection (a) may be accompanied, represented, and
advised by counsel. Counsel may advise such person, in
confidence, with respect to any question asked of such person.
Such person or counsel may object on the record to any question,
in whole or in part, and shall briefly state for the record the
reason for the objection. An objection may be made, received, and
entered upon the record when it is claimed that such person is
entitled to refuse to answer the question on the grounds of any
constitutional or other legal right or privilege, including the
privilege against self-incrimination. Such person may not
otherwise object to or refuse to answer any question, and may not
directly or through counsel otherwise interrupt the oral
examination. If such person refuses to answer any question, a
petition may be filed in the district court of the United States
under subsection (j)(1) for an order compelling such person to
answer such question.
(B) If such person refuses to answer any question on the
grounds of the privilege against self-incrimination, the
testimony of such person may be compelled in accordance with the
provisions of part V of title 18.
(8) Witness fees and allowances. - Any person appearing for
oral testimony under a civil investigative demand issued under
subsection (a) shall be entitled to the same fees and allowances
which are paid to witnesses in the district courts of the United
States.
(i) Custodians of Documents, Answers, and Transcripts. -
(1) Designation. - The Attorney General shall designate a false
claims law investigator to serve as custodian of documentary
material, answers to interrogatories, and transcripts of oral
testimony received under this section, and shall designate such
additional false claims law investigators as the Attorney General
determines from time to time to be necessary to serve as deputies
to the custodian.
(2) Responsibility for materials; disclosure. - (A) A false
claims law investigator who receives any documentary material,
answers to interrogatories, or transcripts of oral testimony
under this section shall transmit them to the custodian. The
custodian shall take physical possession of such material,
answers, or transcripts and shall be responsible for the use made
of them and for the return of documentary material under
paragraph (4).
(B) The custodian may cause the preparation of such copies of
such documentary material, answers to interrogatories, or
transcripts of oral testimony as may be required for official use
by any false claims law investigator, or other officer or
employee of the Department of Justice, who is authorized for such
use under regulations which the Attorney General shall issue.
Such material, answers, and transcripts may be used by any such
authorized false claims law investigator or other officer or
employee in connection with the taking of oral testimony under
this section.
(C) Except as otherwise provided in this subsection, no
documentary material, answers to interrogatories, or transcripts
of oral testimony, or copies thereof, while in the possession of
the custodian, shall be available for examination by any
individual other than a false claims law investigator or other
officer or employee of the Department of Justice authorized under
subparagraph (B). The prohibition in the preceding sentence on
the availability of material, answers, or transcripts shall not
apply if consent is given by the person who produced such
material, answers, or transcripts, or, in the case of any product
of discovery produced pursuant to an express demand for such
material, consent is given by the person from whom the discovery
was obtained. Nothing in this subparagraph is intended to prevent
disclosure to the Congress, including any committee or
subcommittee of the Congress, or to any other agency of the
United States for use by such agency in furtherance of its
statutory responsibilities. Disclosure of information to any such
other agency shall be allowed only upon application, made by the
Attorney General to a United States district court, showing
substantial need for the use of the information by such agency in
furtherance of its statutory responsibilities.
(D) While in the possession of the custodian and under such
reasonable terms and conditions as the Attorney General shall
prescribe -
(i) documentary material and answers to interrogatories shall
be available for examination by the person who produced such
material or answers, or by a representative of that person
authorized by that person to examine such material and answers;
and
(ii) transcripts of oral testimony shall be available for
examination by the person who produced such testimony, or by a
representative of that person authorized by that person to
examine such transcripts.
(3) Use of material, answers, or transcripts in other
proceedings. - Whenever any attorney of the Department of Justice
has been designated to appear before any court, grand jury, or
Federal agency in any case or proceeding, the custodian of any
documentary material, answers to interrogatories, or transcripts
of oral testimony received under this section may deliver to such
attorney such material, answers, or transcripts for official use
in connection with any such case or proceeding as such attorney
determines to be required. Upon the completion of any such case
or proceeding, such attorney shall return to the custodian any
such material, answers, or transcripts so delivered which have
not passed into the control of such court, grand jury, or agency
through introduction into the record of such case or proceeding.
(4) Conditions for return of material. - If any documentary
material has been produced by any person in the course of any
false claims law investigation pursuant to a civil investigative
demand under this section, and -
(A) any case or proceeding before the court or grand jury
arising out of such investigation, or any proceeding before any
Federal agency involving such material, has been completed, or
(B) no case or proceeding in which such material may be used
has been commenced within a reasonable time after completion of
the examination and analysis of all documentary material and
other information assembled in the course of such
investigation,
the custodian shall, upon written request of the person who
produced such material, return to such person any such material
(other than copies furnished to the false claims law investigator
under subsection (f)(2) or made for the Department of Justice
under paragraph (2)(B)) which has not passed into the control of
any court, grand jury, or agency through introduction into the
record of such case or proceeding.
(5) Appointment of successor custodians. - In the event of the
death, disability, or separation from service in the Department
of Justice of the custodian of any documentary material, answers
to interrogatories, or transcripts of oral testimony produced
pursuant to a civil investigative demand under this section, or
in the event of the official relief of such custodian from
responsibility for the custody and control of such material,
answers, or transcripts, the Attorney General shall promptly -
(A) designate another false claims law investigator to serve
as custodian of such material, answers, or transcripts, and
(B) transmit in writing to the person who produced such
material, answers, or testimony notice of the identity and
address of the successor so designated.
Any person who is designated to be a successor under this
paragraph shall have, with regard to such material, answers, or
transcripts, the same duties and responsibilities as were imposed
by this section upon that person's predecessor in office, except
that the successor shall not be held responsible for any default
or dereliction which occurred before that designation.
(j) Judicial Proceedings. -
(1) Petition for enforcement. - Whenever any person fails to
comply with any civil investigative demand issued under
subsection (a), or whenever satisfactory copying or reproduction
of any material requested in such demand cannot be done and such
person refuses to surrender such material, the Attorney General
may file, in the district court of the United States for any
judicial district in which such person resides, is found, or
transacts business, and serve upon such person a petition for an
order of such court for the enforcement of the civil
investigative demand.
(2) Petition to modify or set aside demand. - (A) Any person
who has received a civil investigative demand issued under
subsection (a) may file, in the district court of the United
States for the judicial district within which such person
resides, is found, or transacts business, and serve upon the
false claims law investigator identified in such demand a
petition for an order of the court to modify or set aside such
demand. In the case of a petition addressed to an express demand
for any product of discovery, a petition to modify or set aside
such demand may be brought only in the district court of the
United States for the judicial district in which the proceeding
in which such discovery was obtained is or was last pending. Any
petition under this subparagraph must be filed -
(i) within 20 days after the date of service of the civil
investigative demand, or at any time before the return date
specified in the demand, whichever date is earlier, or
(ii) within such longer period as may be prescribed in
writing by any false claims law investigator identified in the
demand.
(B) The petition shall specify each ground upon which the
petitioner relies in seeking relief under subparagraph (A), and
may be based upon any failure of the demand to comply with the
provisions of this section or upon any constitutional or other
legal right or privilege of such person. During the pendency of
the petition in the court, the court may stay, as it deems
proper, the running of the time allowed for compliance with the
demand, in whole or in part, except that the person filing the
petition shall comply with any portions of the demand not sought
to be modified or set aside.
(3) Petition to modify or set aside demand for product of
discovery. - (A) In the case of any civil investigative demand
issued under subsection (a) which is an express demand for any
product of discovery, the person from whom such discovery was
obtained may file, in the district court of the United States for
the judicial district in which the proceeding in which such
discovery was obtained is or was last pending, and serve upon any
false claims law investigator identified in the demand and upon
the recipient of the demand, a petition for an order of such
court to modify or set aside those portions of the demand
requiring production of any such product of discovery. Any
petition under this subparagraph must be filed -
(i) within 20 days after the date of service of the civil
investigative demand, or at any time before the return date
specified in the demand, whichever date is earlier, or
(ii) within such longer period as may be prescribed in
writing by any false claims law investigator identified in the
demand.
(B) The petition shall specify each ground upon which the
petitioner relies in seeking relief under subparagraph (A), and
may be based upon any failure of the portions of the demand from
which relief is sought to comply with the provisions of this
section, or upon any constitutional or other legal right or
privilege of the petitioner. During the pendency of the petition,
the court may stay, as it deems proper, compliance with the
demand and the running of the time allowed for compliance with
the demand.
(4) Petition to require performance by custodian of duties. -
At any time during which any custodian is in custody or control
of any documentary material or answers to interrogatories
produced, or transcripts of oral testimony given, by any person
in compliance with any civil investigative demand issued under
subsection (a), such person, and in the case of an express demand
for any product of discovery, the person from whom such discovery
was obtained, may file, in the district court of the United
States for the judicial district within which the office of such
custodian is situated, and serve upon such custodian, a petition
for an order of such court to require the performance by the
custodian of any duty imposed upon the custodian by this section.
(5) Jurisdiction. - Whenever any petition is filed in any
district court of the United States under this subsection, such
court shall have jurisdiction to hear and determine the matter so
presented, and to enter such order or orders as may be required
to carry out the provisions of this section. Any final order so
entered shall be subject to appeal under section 1291 of title
28. Any disobedience of any final order entered under this
section by any court shall be punished as a contempt of the
court.
(6) Applicability of federal rules of civil procedure. - The
Federal Rules of Civil Procedure shall apply to any petition
under this subsection, to the extent that such rules are not
inconsistent with the provisions of this section.
(k) Disclosure Exemption. - Any documentary material, answers to
written interrogatories, or oral testimony provided under any civil
investigative demand issued under subsection (a) shall be exempt
from disclosure under section 552 of title 5.
(l) Definitions. - For purposes of this section -
(1) the term "false claims law" means -
(A) this section and sections 3729 through 3732; and
(B) any Act of Congress enacted after the date of the
enactment of this section which prohibits, or makes available
to the United States in any court of the United States any
civil remedy with respect to, any false claim against, bribery
of, or corruption of any officer or employee of the United
States;
(2) the term "false claims law investigation" means any inquiry
conducted by any false claims law investigator for the purpose of
ascertaining whether any person is or has been engaged in any
violation of a false claims law;
(3) the term "false claims law investigator" means any attorney
or investigator employed by the Department of Justice who is
charged with the duty of enforcing or carrying into effect any
false claims law, or any officer or employee of the United States
acting under the direction and supervision of such attorney or
investigator in connection with a false claims law investigation;
(4) the term "person" means any natural person, partnership,
corporation, association, or other legal entity, including any
State or political subdivision of a State;
(5) the term "documentary material" includes the original or
any copy of any book, record, report, memorandum, paper,
communication, tabulation, chart, or other document, or data
compilations stored in or accessible through computer or other
information retrieval systems, together with instructions and all
other materials necessary to use or interpret such data
compilations, and any product of discovery;
(6) the term "custodian" means the custodian, or any deputy
custodian, designated by the Attorney General under subsection
(i)(1); and
(7) the term "product of discovery" includes -
(A) the original or duplicate of any deposition,
interrogatory, document, thing, result of the inspection of
land or other property, examination, or admission, which is
obtained by any method of discovery in any judicial or
administrative proceeding of an adversarial nature;
(B) any digest, analysis, selection, compilation, or
derivation of any item listed in subparagraph (A); and
(C) any index or other manner of access to any item listed in
subparagraph (A).