For some, a jury summons might be the only instance where something comes in the mail from a court or relating to a legal proceeding. However, if you are a business owner, medical provider, pharmacist, or simply an individual working in the healthcare or life sciences space, you may open the mail one day and find a subpoena or a civil investigative demand (“CID”). This article provides some guidance on what these documents are, what they mean, and what you should do if you receive a CID or subpoena.
What is a subpoena? A subpoena is a document from an attorney or the clerk of the court that commands the recipient to provide information or documents. A subpoena generally comes in 3 forms:
- A subpoena for documents (subpoena duces tecum)
- A subpoena for deposition, hearing or trial testimony (subpoena ad testificandum)
- A Grand Jury subpoena
A subpoena for documents or testimony is exactly that – a demand for the recipient to produce documents in the recipient’s possession or a request for the recipient to appear in person to give oral testimony. A subpoena for documents or testimony may relate to either a civil or criminal case and in federal cases are governed by Federal Rule of Civil Procedure 45 and Federal Rule of Criminal Procedure 17.
A Grand Jury subpoena is issued by the Grand Jury to assist with an investigation into a criminal matter and usually means that you or someone you know is the target of the investigation. This subpoena can also seek the production of documents or live testimony before the Grand Jury.
What is a CID? A CID is like a subpoena in that it is a tool used by Federal agencies to obtain documents or information relevant to that agency’s investigation. Two main differences between a CID and a subpoena are that (1) a CID is used in a civil investigation whereas a subpoena could be issued in either civil or criminal matters and (2) a CID usually is served before a lawsuit or court proceeding is filed. The Department of Justice, Federal Trade Commission, State Offices of Inspector General are a few entities that issue CIDs.
CIDs under the False Claims Act (“FCA”), the law used to file most healthcare fraud cases, largely tracks the Federal Rules of Civil Procedure (see 31 U.S.C. § 3733), so it is important to make sure the attorney representing you has a strong understanding of the FCA and experience litigating in federal courts.
What to do when served with a subpoena or CID?
A subpoena or CID might not mean you committed or are culpable of any wrongdoing. It could just be that you are a witness with information relevant to an investigation or other legal proceeding. It could, however, also mean that you or your business are the target of an investigation, which carries significant civil and/or criminal implications.
Here are some helpful steps to follow when served with a subpoena or CID:
- Act immediately and do not ignore it. The failure to comply with the subpoena or CID’s command could result in a finding of contempt, legal sanctions, or other negative consequences.
- Note the timing and deadlines. The last thing you would want is to miss a deadline or appearance due to oversight.
- Make note of service and how it was performed. Lack of proper service is a potential ground to object to the subpoena’s command.
- Note the scope of the subpoena or CID and make sure that responsive documents are preserved and not destroyed.
- Most importantly, engage an attorney to handle the response. An attorney more than likely issued the subpoena or CID, and any response should be handled by an attorney. As noted above, failure to properly respond to a subpoena may result in adverse legal consequences and the imposition of sanctions by the court. An attorney will ensure that you have satisfied the legal obligations imposed by the subpoena or CID.
Your attorney could:
- Speak to or have a “meet and confer” with the sender to gather information about the case or investigation. If the subpoena was issued by the Grand Jury or it related to a criminal investigation or matter, then it is also important to inquire about the recipient’s role in the investigation. An attorney will likely be able to learn whether the recipient is a target, subject or witness of the investigation.
- Ask that the sender extend the CID or subpoena deadlines and/or work out an agreement to produce documents on a timeline or rolling basis.
- Negotiate the scope of the subpoena or CID to limit the burden or expense of complying with the request.
- File a motion to quash or a motion for a protective order on the recipient’s behalf to preserve any privilege or lodge an objection to the scope of the subpoena or CID.
How Frier Levitt Can Help
Frier Levitt is a national boutique healthcare law firm that is unlike most other firms in the country. Our firm has more than forty attorneys that have experience handling subpoenas and CIDS, especially in the healthcare and life sciences space, some of whom are alumni from the Department of Justice and State Attorney General’s Offices. In addition, the firm has a regulatory department and employs clinician and pharmacist attorneys.
If you are a medical provider, pharmacy, pharmacist or individual working in healthcare or life sciences and have received a CID or subpoena, you should contact us at (973) 618-1660 or through our website, HERE.
