This transcript has been auto generated
00;00;05;01 - 00;00;29;16
Jonathan Porter
Welcome to another episode of Husch Blackwell's False Claims Act Insights podcast. I'm your host, Jonathan Porter. Today, we're circling back to a topic we discussed on this Podcast's second episode, the Civil Investigative Demand, or CID, for short series, are by far the most powerful tool given to the Justice Department by Congress for investigating allegations of false claims against the government.
00;00;30;00 - 00;00;56;20
Jonathan Porter
That powerful tool can be also incredibly broad. Clients with no experience being investigated are often stunned at how broad CIDs are, how extensive their obligations are when they receive a CID, and, frankly, how expensive it is to comply with those obligations, both in terms of their time and legal fees. And when clients start to grasp the breadth and cost, they naturally find themselves asking an important question they ask, Isn't there some other way?
00;00;57;04 - 00;01;21;08
Jonathan Porter
So today we're circling back to CIDs to answer that question, because there's a new federal court case that shows one way to challenge the CID. And we're going to talk about that case and the strategies for thinking about asking a federal judge to step in on disputes relating to CIDs. Joining me to talk about kids and legal actions to set aside CIDs is my colleague, Rebecca Furdek.
00;01;21;22 - 00;01;43;12
Jonathan Porter
Rebecca is a white collar lawyer in Husch Blackwell's Milwaukee office. Rebecca has a lot of experience defending federal investigations of all type, including False Claims Act investigations. Rebecca is like me. She's been on the government side recently, which I think helps in understanding how the government thinks about things. But Rebecca is unlike me in a key way. In undergrad, Rebecca wasn't just pre law.
00;01;43;12 - 00;02;01;08
Jonathan Porter
She was also a piano performance major, which is really cool. Something I could never do. We'll have to talk about maybe a new theme song for the podcast sometime. Rebecca But also Rebecca was recently named partner at the Firm, which I'm very excited about. You'll be an amazing partner. Rebecca Once you officially start that role in a few weeks.
00;02;01;08 - 00;02;14;25
Jonathan Porter
And so I'm excited for this episode for us to talk about CIDs. And so, Rebecca, welcome to the podcast and thanks for telling our listeners a little bit about the process for getting a court to set aside CIDs.
00;02;15;17 - 00;02;25;03
Rebecca Furdek
Well, hi, Jonathan. Thank you for having me on and for that extremely gracious introduction. This is a huge topic and I'm looking forward to tackling it with you today.
00;02;25;16 - 00;02;45;06
Jonathan Porter
Thanks, Rebecca. So let's start by setting the stage on this topic just a little bit. So as I mentioned in the open, we did a whole episode on CIDs. Catherine Hanaway gave our listeners a lot of information about what CIDs are, what companies and individuals who receive one ought to do when they get one. It was a great episode, but it's been six months.
00;02;45;15 - 00;02;53;13
Jonathan Porter
And so a quick refresher probably wouldn't hurt. So Rebecca, would you be so kind as to give our listeners maybe a one minute rundown of CIDs?
00;02;53;19 - 00;03;19;04
Rebecca Furdek
Absolutely. So civil investigative demands or CIDs are a tool created by Congress and codified within the False Claims Act statute. DOJ uses them to investigate alleged violations of EFCA and allows DOJ to receive potentially huge amounts of information long before they even bring actual litigation. So DOJ can receive that information through a CID and a number of ways.
00;03;19;15 - 00;03;51;26
Rebecca Furdek
A CID can demand the production of documents, responses to written questions that we call interrogatories or oral testimony, or some combination of those three options. And we'll dive into more detail about this later. But the statute governing CIDs also sets forth particular parameters for what the government may demand and how. So, for example, take oral testimony there. The CID must state the date, time and place the general purpose for the demand and the primary areas of inquiry for the testimony.
00;03;52;14 - 00;04;19;26
Rebecca Furdek
And an important thing to keep in mind is that information that's shared in response to a CID may in many cases be shared with other government agents. So a common question is who might receive a CID? What is it signal more broadly to receive a CID? And like a lot of answers to legal questions, it depends. CIDs can range from very discrete requests to extremely broad requests for information related to an investigation.
00;04;20;12 - 00;04;51;08
Rebecca Furdek
And this is in part, again, due to the fact that DOJ enjoys a lot of latitude regarding who they may serve. The statute simply states that any person who may be in possession, custody or control of documents or information relevant to an investigation may receive one. So while typically targets of an investigation are the most common recipients of a kid receiving one, they also simply indicate that the recipient is a mere witness believed to only have limited information relevant to that investigation.
00;04;51;24 - 00;05;12;27
Rebecca Furdek
So taking that all together, this is only a very much a bird's eye view of the process. But the takeaway, again, is that this is a very powerful tool that DOJ can wield to receive information in a variety of ways. And the consequence ounces of how one responds upon receiving a CID can be absolutely crucial in shaping the ultimate outcome.
00;05;13;10 - 00;05;19;01
Rebecca Furdek
So as a result, it's highly advisable to be working with your legal counsel when you formulate your response.
00;05;19;28 - 00;05;35;20
Jonathan Porter
That's a great summary. Rebecca, thank you for that. Yeah. So a couple of big things that stand out to me. One, this is a one way discovery. A lot of times in civil litigation, you get to serve discovery on the other side as well. That doesn't happen in series. You're not going to find out anything from the government unless they volunteer.
00;05;35;23 - 00;05;50;28
Jonathan Porter
They choose to share with you sides. That's a one way tool. And I totally agree, Rebecca. This is an area where it's really helpful to get someone involved, a lawyer involved, who knows what they're doing on this front. I'm happy to be at a firm with people like you, Rebecca, and a lot of others who have a lot of good experience in this area.
00;05;50;29 - 00;06;11;17
Jonathan Porter
So, yeah, reaching out to someone who knows what to do in the CID world is really, really helpful. So, Rebecca, as I mentioned in the open, a lot of our clients have very little knowledge of what sides are when they first receive a. And when they get a side and they're faced with oftentimes really broad scope, they're stunned.
00;06;11;24 - 00;06;30;23
Jonathan Porter
And their question for us, their lawyers, is something along the lines of, boy, this is going to be crazy expensive. Is there something I can do to get out of this? And oftentimes we have conversations with DOJ about scope and cost. And in my experience, DOJ attorneys want to have those conversations because they don't want people going to unnecessary expense.
00;06;31;10 - 00;06;53;17
Jonathan Porter
And so it's a conversation about how to get DOJ, what they need in an efficient way. But other times, the answer to that question from DOJ is no produce it all produce everything that we requested, and I want you to produce it now. And that's when clients ask, okay, what are our other options? And the answer to that question is to talk about getting the court involved, the petition to set aside the side.
00;06;53;21 - 00;07;04;15
Jonathan Porter
And so, Rebecca, tell our listeners about petitions to set aside SIDS. What are these petitions and what grounds do courts look for in analyzing these types of petitions?
00;07;05;08 - 00;07;28;18
Rebecca Furdek
Of course, to what you said can be an absolutely overwhelming experience to just receive a CID, whether it is the cost of responding, the stress involved, the time involved in compiling requested materials. And this is also particularly burdensome for individuals or small businesses being swept up into an investigation. So as you also say, my experience is similar to yours.
00;07;28;18 - 00;07;53;23
Rebecca Furdek
Simply having some discussions with DOJ about how to adequately comply is one route to take. But that is not always successful. So when a client decides it's time to take it to court, the False Claims Act does provide grounds to move, to set aside or to modify the CID. And in practical terms, what that means is that you're asking a court to get involved and either stop the CID entirely.
00;07;53;23 - 00;08;20;21
Rebecca Furdek
So you don't have to comply at all. It's no longer there or in some way alter the CID or the obligations to responding to it. So the grounds for bringing such a petition can vary. The grounds can include some legal de fact with frankly the wording of the city itself or the contents, such as failing to adequately describe the information being sought, not providing the identity of the investigator who might receive the documents or testimony.
00;08;21;06 - 00;08;47;08
Rebecca Furdek
The grounds can sometimes include arguments that the CID is overly broad or unduly burdensome in some fashion. And in addition, the grounds can include some constitutional or privilege type issue that may warrant the court's involvement. For example, I know that on another recent episode of your podcast, you and your guest spoke about a recent Florida decision that was finding the key to hammer the whistleblower provision of the FCA to be unconstitutional.
00;08;48;01 - 00;09;14;02
Rebecca Furdek
Of course, these constitutional type cases, as you might imagine, are relatively rare. So one of the more common complaints with kids is typically the breadth or the scope of what the government may be seeking. However, unfortunately, courts often pose a very high bar when it comes to breath. And in that instance, to the extent a court may grant relief, the court may be more likely to narrow the scope than to set aside or be an entire side.
00;09;14;13 - 00;09;43;02
Rebecca Furdek
But even that is rarely granted. So in general, courts don't grant these petitions every day. And this is frankly just a reality that reflects DOJ's wide authority to seek this type of information. So the one sided approach you mentioned. So as practitioners, when we're deciding whether to pursue a petition, we typically look for a particularly extreme or really just strange or egregious fact patterns before we advise our client that there's a good chance that they might obtain this type of relief.
00;09;43;20 - 00;10;04;02
Jonathan Porter
Yeah, that's excellent advice, Rebecca. Yeah, my experience with judges is they want people to be able to work out these things. They want the government to be able to investigate things. And so very rarely are they going to take a hard line and say, I'm going to get involved in the government's investigation. I'm going to micromanage everything. So you're going to bring one of these.
00;10;04;02 - 00;10;20;02
Jonathan Porter
It's typically a good idea to have a really solid arguments and to show the court that you've tried really hard to work out things with the Justice Department in advance of bringing it to the court. I'm a parent of young boys who fight all the time, and I can tell you I want them to work it out between themselves and only bring it to me if it's serious.
00;10;20;03 - 00;10;47;04
Jonathan Porter
I think judges are largely view lawyers as little kids that they are trying to, you know, keep happy. But, you know, it's interesting to me looking at stuff like this, because every now and then you get a case that lets you sort of see how this is supposed to work. And we just got one of these cases. So in late October, an Idaho chiropractor and his practice, they filed one of these petitions in federal court asking a federal judge to set aside a couple of kids.
00;10;47;14 - 00;11;07;13
Jonathan Porter
And in that petition, the chiropractor sets up the request by trying to convince the judge they tried really hard to work with DOJ before filing the petition. That's a wise move. But for our purposes, Rebecca, this helps our listeners get some sense of the dialog that you need to have with DOJ well in advance of seeking court intervention and setting aside the idea.
00;11;07;13 - 00;11;23;07
Jonathan Porter
So Rebecca, we'll get to the legal arguments in a little bit, but to start off with this Idaho Chiropractors petition, can you tell us how this DOJ investigation in Idaho proceeded and ultimately ended up with this petition to set aside the city?
00;11;23;20 - 00;11;50;23
Rebecca Furdek
Absolutely. As you say, similar to this, the CID process itself being an important precursor to litigation. This sort of informal behind the scenes back and forth between defense counsel and the government can often set the tone for how this process then plays out. In this case, it's that preceded the back and forth that ended up in litigation, separate and apart from any FCA litigation that the DOJ may ultimately file.
00;11;51;05 - 00;12;15;24
Rebecca Furdek
So I will walk through the timeline of these kids and some of that back and forth on a high level because it is quite a saga. So in January, the DOJ issued a CID to a chiropractic center in Idaho for documents, interrogatories and oral testimony, which, by the way, is kind of odd because you don't often see the CID for oral testimony issued to a corporate entity rather than an individual.
00;12;16;07 - 00;12;52;12
Rebecca Furdek
But that aside, the parties did agree for two individuals to provide oral testimony in July. And according to this petition and related filings, the testimony lasted several hours and included treatment of certain individuals and knowledge of rules and regulations. And two months later, the DOJ issued two more CIDs, however, directly to those same two individuals who already testified rather than to the chiropractic center and required each of them to produce documents and to again provide testimony in Boise, Idaho.
00;12;53;00 - 00;13;20;15
Rebecca Furdek
So two things were strange here. First, in a separate conversation, DOJ changed the location to a different city in Idaho. And second, the DOJ, through their side, didn't even specify what documents they were demanding. So attorneys for the two individuals kicked off that behind the scenes type of dialog through emails, raising these issues and to serve an example of how these conversations sometimes can be productive.
00;13;20;27 - 00;13;44;22
Rebecca Furdek
DOJ did retract the document request, and they reissued the sit with the correct location. However, after receiving the corrected, CID's defense counsel then claimed via email that they had a prepaid vacation planned for the date of the testimony and asked for the testimony to be pushed back a little to early December. And then here is where everything starts to break down.
00;13;45;09 - 00;14;16;00
Rebecca Furdek
According to the petition that was filed, moving to set aside the CID defense counsel had a call which we refer to as a meet and confer with DOJ, and DOJ refused to change the date, citing the fact that November 20th was always the date. And defense counsel could have raised this earlier. But there's more than just that. Defense counsel also argued that the testimony was on topics to which these people already testified, and they requested also that the government reissue the CIDs naming the entity instead.
00;14;16;15 - 00;14;49;04
Rebecca Furdek
And DOJ entirely refused to modify the idea on either front there. And one more issue that I frankly find the most interesting is that the defense attorney asked for a copy of the prior transcripts from July oral testimony, and DOJ refused again to provide a copy for two reasons. Number one, because the investigation was ongoing. And number two, because if they provided the transcript, the two individuals may try to, quote, harmonize, unquote, their forthcoming answers with their prior testimony.
00;14;49;20 - 00;14;57;20
Rebecca Furdek
So as a result, defense counsel then decided to take it to court. So they filed a petition in federal district court moving to set aside the CID.
00;14;58;07 - 00;15;16;24
Jonathan Porter
Yet this super interesting background to me, Rebecca, I mean, you and I, we do this work, so we think stuff like this is interesting to see other people's investigations and sort of nitpicked them. So it's really interesting. First of all, I'm with you the like 36 variety of taking oral testimony of a corporate entity in the context of a.
00;15;17;14 - 00;15;35;19
Jonathan Porter
I haven't seen that before. I think that's a pretty unique thing for DOJ to do. Usually DOJ wants to pick the people they want to talk to rather than just saying, Hey, we want talked to someone. You pick the person who's the most knowledgeable about these topics. It's really interesting. And then to take their own individual testimony. Just really fascinating to me.
00;15;35;19 - 00;15;54;18
Jonathan Porter
I don't know what led to that, but it's interesting. But this transcript issue. Rebecca, I'm with you. I think this is really interesting because by statute witnesses, they've got a right to a reasonable opportunity to examine and read the transcripts unless they waive it because they're allowed to go in and identify any form or substance changes that they want to make.
00;15;55;00 - 00;16;19;10
Jonathan Porter
And I'm guessing here that maybe the practice, they weren't able to make effective use of that process or maybe it somehow got waived. But then there's a second part of the CID statute that says that witnesses have the ability generally to receive their side. Transcript. But the issue here is that that general right to receive your city transcript, it can be limited for good cause to just inspection of the transcript.
00;16;19;22 - 00;16;34;21
Jonathan Porter
But the statute doesn't say that you can just totally withhold the transcript and hear it for believing the accusations in the petition. It sounds like DOJ, they're just not abiding by the statute by just totally withholding the the transcript altogether. Rebecca, I'm sure is that your take is. Well.
00;16;35;02 - 00;16;53;21
Rebecca Furdek
Yes it is based on what I'm seeing here. And it filed in conjunction with the petition. So just to provide a little backdrop, the emails that are attached to this petition, the emails by both parties do make clear that DOJ appears to be interpreting the demand for the transcript under that second part of the statute, not the first.
00;16;54;07 - 00;17;26;23
Rebecca Furdek
And that subsection provides that the government shall furnish a copy of the transcript except for good cause. And when good cause exists, the DOJ still cannot entirely with all the transcript. It may instead limit to inspection of the transcript. But again, even inspection is only when there's good cause. So the parties here appear to be fighting over whether there's good cause at all, such that DOJ can only provide an inspection of the transcript versus providing a copy of the transcript to counsel.
00;17;27;09 - 00;17;56;14
Rebecca Furdek
And as mentioned earlier, DOJ is offering these two reasons that the investigation is ongoing and this whole harmonization argument. So I'll take the second point as first, maybe as a music major harmony kind of sticks out to me. The FCA does not prohibit review of a transcript at all in any way. And just as a general matter, it's not necessarily problematic to harmonize testimony or unethical if the testimony is truthful in both instances.
00;17;56;14 - 00;18;25;11
Rebecca Furdek
And of course, the government may certainly be interested in whether questions are answered slightly different in any way between July and November. But I hesitate to see how that provides a good cause to not grant witnesses the right to a transcript to which they are entitled under the statute and regarding the ongoing investigation prong it is. I think it's just strange to hinge good cause on an investigation being ongoing because if DOJ is issuing a CID.
00;18;25;16 - 00;18;49;12
Rebecca Furdek
Of course there's an investigation. That's the whole point of this. So DOJ cannot possibly be saying with a straight face that in every single instance involving individual files or a company being investigated, that there's good cause because then 100% of the time, they could just avoid producing a transcript. So therefore that simply cannot be a reasonable reading of the statutory text with that reality in mind.
00;18;50;04 - 00;19;10;14
Rebecca Furdek
Now, the government did state and one of these many back and forth emails that good cause was justified because the individuals were being investigated in their individual capacity versus merely on behalf of the entity. I'm not sure how that necessarily provides good cause, and DOJ didn't explain it either. So that too does strike me as a little tenuous.
00;19;10;29 - 00;19;33;02
Jonathan Porter
Yeah, 100% agree. Rebecca. That's to me spot on analysis. I'm with you. I don't think it's wrong to harmonize testimony so long as it's truthful. I know that a lot of times in litigation in general, litigants try to take advantage of the fact that stories might seem to be a little different and so pressing people to make sure that that doesn't happen in order to give the other side unnecessary ammo.
00;19;33;12 - 00;19;50;15
Jonathan Porter
That's not just allowed. But why? So as long as people are going to continue to sort of capitalize on, you know, potentially change stories, I think it's normal for people to say no. Let's try to make sure that our story stays consistent so long as it's truthful. So I don't think there's anything wrong with that at all. And I'm totally with you on the rest of it.
00;19;50;15 - 00;20;05;28
Jonathan Porter
Rebecca I think this is a really interesting situation. It seems like this is one of the rare times where it's smart to go to the court and say, Look, something's going on that's wrong here. You know, Judge, here's the statute, and I need you to help us make sure that we're having our rights abided by. So that's why this is such an interesting case to me.
00;20;06;06 - 00;20;25;04
Jonathan Porter
So, Rebecca, putting the transcript issue to the side, what do you make of the dispute of the timing of the additional oral testimony? So on the one hand, DOJ barely spoke to these two people as representatives of the corporate entity and oral testimony like depositions that often involve some sort of give and take working with each other on dates.
00;20;25;04 - 00;20;49;06
Jonathan Porter
And it's not like grand jury testimony where you're appearing when the grand jury convenes. So to me, it's normal to ask opposing counsel to work with you on dates. Rebecca How do you assess this testimony timing issue? How do you think the judge will respond to being asked to weigh in on this dispute? And would you have done anything differently had you been defending this case in this deposition or oral testimony timing issue arose?
00;20;49;15 - 00;21;12;15
Rebecca Furdek
Well, on the one hand, not mentioning the date right away when you're raising all these other issues isn't necessarily the most collegial strategy. But on the other hand, eight days delay isn't really that long when you're looking almost two months later on a calendar and there's really no set rule per se that was violated here. With that said, presumably counsel did know the date was unworkable, right away.
00;21;12;17 - 00;21;39;19
Rebecca Furdek
If this was some prepaid trip and one could understand why DOJ is a little irked or sees this as a delay tactic. And on top of that, it doesn't help that there's all these other disputes going. And DOJ appears to be taking issue with defense counsel's tone, even overall in prior correspondence. So as far as how I would have handled it, it's very easy for someone like you or I to just look in without being part of all these dealings and communications.
00;21;40;01 - 00;22;03;13
Rebecca Furdek
But I sense that either for the defense counsel or the government, it could have been handled a bit differently on either side, at least in my own practice. When I see something as simple as a scheduling issue or a logistic issue arise, I do try to notify the government or another party as soon as possible because frankly, that's just a professional courtesy I would also expect in return.
00;22;04;17 - 00;22;27;27
Rebecca Furdek
But with that said, I don't think dogs decision to just outright refuse upon being asked is productive because now this is escalated and now the testimony is likely going to be delayed anyway because the court has to wrestle with this newly filed petition. So to answer your other question, as far as how the court may respond, as we've said, setting aside a seated is already a relatively rare phenomenon.
00;22;28;09 - 00;22;57;20
Rebecca Furdek
And on top of that, I think judges won't want to sit and read all these various emails back and forth to parse out a simple scheduling dispute when there's no actual question of law related to that to resolve and as a result, I can't imagine the court looking particularly favorable on either party regarding this one issue, which is not how you want the court to view you when you have other issues such as the government facing this murky good cause issue or the defense already facing an uphill climb by filing a petition at all.
00;22;58;06 - 00;23;12;21
Rebecca Furdek
So if I had to guess, I would predict that here the court will order that the parties must just agree on a date themselves, which I guess is technically a modification of the CID. But the court is not going to set aside a seated on that basis.
00;23;13;10 - 00;23;31;00
Jonathan Porter
Yeah, I think that's right. Rebecca. Yeah, I'm with you. I think neither side is going to look particularly good to the judge reviewing this. The government, on the one hand, doesn't look all that good. It looks like they're probably going to get slapped down a little bit by the judge who's going to say, look, you're better than this, but also I'm with you sort of defense counsel.
00;23;31;00 - 00;23;50;22
Jonathan Porter
You don't really want to be the one running to the judge. And it look like you could have prevented this by just communicating earlier. You know, everyone's got different styles when dealing with a uses. My style is to get along with people. It's just how I am that does this not to mean that I'm going to let DOJ get away with statutory violations which appear to possibly be happening here.
00;23;51;04 - 00;24;17;03
Jonathan Porter
But yeah, hopefully you're protecting your client's rights and standing up for your client while also getting along with the AUSA. Because honestly, the AUSA has a lot of discretion in whether to intervene and a key item or file of false claims that comply serve additional CIDs work with you on modifying the scope. And so in general, you want to get along with your AUSA and something tells me going to the judge and saying, Judge, they're doing all these things wrong.
00;24;17;04 - 00;24;37;29
Jonathan Porter
Probably not setting up the most healthy discussion going forward. Sometimes it's necessary though, and I don't know that I would have done anything differently here. But so Rebecca, I'm with you on all of your analysis. So zooming out a bit, why don't you close this out by telling our listeners what else they should be on the lookout for when it comes to challenging DOJ's ability to use sides?
00;24;37;29 - 00;24;55;11
Jonathan Porter
We talked about what judges look for a little bit, not abiding by the statute. That's a clear cut reason to loop in a judge. But what else do you look for when advising clients on whether to seek a challenge to a CID? What are your thoughts on asking a judge to narrow the scope of a CID on grounds that the city is overly broad?
00;24;55;11 - 00;24;57;16
Jonathan Porter
Closes out with your analysis on that front.
00;24;57;16 - 00;25;18;00
Rebecca Furdek
Rebecca Sure. So first, when a client comes to me with the kid and they're concerned about how to respond, I do give them the spiel that challenging a kid through this formal petition process is not a slam dunk for the reasons we've already discussed. And I like to look at the particular facts. Every case is a little different.
00;25;18;17 - 00;25;44;09
Rebecca Furdek
So if the challenge might be to the breadth or the scope of the kid, I'm a little hesitant to bring a petition just on that basis alone, I think, as to breath if it's a document type request, as e-discovery tools become more prevalent and easy to apply even for smaller businesses or individual email accounts, it can sometimes be difficult to mount a serious challenge if the CIDs calling for electronic materials.
00;25;44;24 - 00;26;13;16
Rebecca Furdek
A challenge on breath might be more appealing if it's a paper document issue or to the extent it's for interrogatories or for testimony. Another new issue I'll be looking at increasingly and we alluded to earlier, is constitutional grounds. For example, to the extent a CID might emanate from a whistleblower derived action, there may be some leeway there. Finally, a simple thing to look for is just a procedural defect or something a little more straightforward.
00;26;13;23 - 00;26;44;15
Rebecca Furdek
Such is the issue here where the DOJ didn't even describe the documents that they were seeking from the two individuals. That's often a more straightforward basis. So with that said, rather than going to court as my initial strategy, I will often encourage clients to allow me to attempt to resolve these issues through that back and forth, behind the scenes type of dialog that we've discussed in this case, it's not just more likely to be successful and get resolved a little more quickly, but it's also more cost effective typically for clients.
00;26;44;28 - 00;27;18;21
Rebecca Furdek
And as we saw here regarding those document requests, DOJ does sometimes acquiesce because frankly, they want the information and they want it a little more quickly. Then litigation would bring. But there is a time and a place to take a strong stance. And we discussed a case here where that might very well be the case. And to the extent that DOJ is being completely unreasonable or the information being sought is egregiously overbroad or some other aspect of the case makes compliance incredibly burdensome, or the CID itself is arguably unconstitutional.
00;27;19;02 - 00;27;42;09
Rebecca Furdek
There are rare instances where going to court is certainly appropriate, and as a practical matter, is simply doing so, or even floating in advance with DOJ that you intend to do so may apply some pressure on the government to modify the CID or work with you to the extent they're eager to get that information. So with that said, again, every fact pattern, every case is a little bit different.
00;27;42;10 - 00;28;10;04
Rebecca Furdek
So I always take this on a case by case approach. And part of I don't want to speak for you, but part of what makes working on False Claims Act matters interesting for me is that every client situation and every conversation with the government goes a little bit differently. So in this case, I'll certainly be interested to see how the court resolves this particular dispute and how the court interprets this good cause issue, because it could have ripple effects for a lot of false claims act work going forward.
00;28;10;27 - 00;28;31;13
Jonathan Porter
Yeah, those are great insights. Rebecca and I totally agree. Every investigation is a little bit different, but I also agree with you on this. Every time it's better to work out your differences with DOJ if possible. If you can preserve your client's rights and do that by talking with DOJ about your concerns before going to the court, I think that's the way to do things.
00;28;31;13 - 00;28;49;04
Jonathan Porter
So I'm with you there, Rebecca. It should be a rare thing to go to the court and say, Judge, we need your help here, and you better have both the documents showing that you've tried to work things out in advance and you better have really good arguments as well. I think it'd be unwise to go into the court and say, you know, Judge, we don't really feel like being investigated.
00;28;49;04 - 00;29;05;06
Jonathan Porter
The judge is just not going to look very kindly on that. But these are really important issues. And so, Rebecca, thanks for coming on the podcast to talk about this process because this is something that that clients do ask about. And so it's helpful to to talk about this and know where that line is, where you ought to think about this.
00;29;05;12 - 00;29;27;20
Jonathan Porter
So we're going to continue talking about this big concept of CIDs and responding to federal investigations. There's a different a totally different side to involving the courts where the Justice Department can involve the courts on their side and they can enforce CIDs. That's something that we're going to talk about at some point in the coming year, because that's a big topic as well.
00;29;27;20 - 00;29;42;15
Jonathan Porter
You can't receive a kid and then do nothing. You got to do something. And the last thing you want to do is for the government to go to the judge and say, Hey, I asked for these documents and they're just not responding to me. So, Judge, I need you to get involved. So we'll talk about that in the coming year.
00;29;42;15 - 00;30;07;02
Jonathan Porter
That's a really interesting topic. But to me, a big reason why kids are such a big deal is because there are huge ramifications for these documents. There was a case coming out of Massachusetts earlier this year where a I think was a medical device company turned over some documents that were privileged. These were attorney client privileged documents should have been given to the government.
00;30;07;13 - 00;30;27;01
Jonathan Porter
But what ended up happening is these documents ended up going to the whistleblower, to the relator that the government shared with the whistleblower these attorney client privilege documents. So it was a big deal. The company ended up firing their law firm, going to and then the new firm went to the court and said, look, we shouldn't have turned these over.
00;30;27;07 - 00;30;45;13
Jonathan Porter
We want to claw these back. And the court said, No, you've waited too long. This is why it's important to go through your documents and make sure that you're not you're not giving the government something that they're not en
titled to. The stakes here are really, really high. That case got a lot of bad press. It's the most spine case.
00;30;45;13 - 00;31;02;04
Jonathan Porter
Got a lot of really bad press for that law firm who turned stuff over. This is why sometimes you have to go through these documents with a fine tooth comb, because the stakes are really high and apparently whistleblowers can get your documents. I don't think they're allowed to do that under the statute, but that's a conversation for another day.
00;31;02;09 - 00;31;26;15
Jonathan Porter
But this has been a really good conversation. We're going to continue talking about these cutting edge cases and topics. And so if you're listening to this, feel free to subscribe. However you listen to this so you can hear us as we come out with more cutting edge episodes. But that's our conversation for today. We'll see you next time.