685.6 Civil investigative demands.
1. Issuance and service.
a. If the attorney general, or a designee, for the purposes of this section, 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, or a designee, may, before commencing a civil proceeding under section 685.3, subsection 1, or other false claims law, or making an election under section 685.3, subsection 2, issue in writing and cause to be served upon such person, a civil investigative demand requiring any of the following of such person:
(1) To produce such documentary material for inspection and copying.
(2) To answer in writing, written interrogatories with respect to such documentary material or information.
(3) To give oral testimony concerning such documentary material or information.
(4) To furnish any combination of such material, answers, or testimony.
b. The attorney general may delegate the authority to issue civil investigative demands under this subsection. If a civil investigative demand is an express demand for any product of discovery, the attorney general, a 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. Any information obtained by the attorney general or a designee of the attorney general under this section may be shared with any qui tam plaintiff if the attorney general or designee determines it is necessary as part of any false claims law investigation.
2. Contents and deadlines.
a. Each civil investigative demand issued under subsection 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 provide all of the following:
(1) Describe each class of documentary material to be produced with such definiteness and certainty as to permit such material to be fairly identified.
(2) 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.
(3) 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 provide for all of the following:
(1) Set forth with specificity the written interrogatories to be answered.
(2) Prescribe dates at which time answers to written interrogatories shall be submitted.
(3) 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 provide for all of the following:
(1) Prescribe a date, time, and place at which oral testimony shall be commenced.
(2) Identify a false claims law investigator who shall conduct the examination and the custodian to whom the transcript of such examination shall be submitted.
(3) Specify that such attendance and testimony are necessary to the conduct of the investigation.
(4) Notify the person receiving the demand of the right to be accompanied by an attorney and any other representative.
(5) 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 twenty 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.
3. Protected material or information.
a. A civil investigative demand issued under subsection 1 shall 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 any of the following:
(1) The standards applicable to subpoenas or subpoenas duces tecum issued by a court of the state to aid in a grand jury investigation.
(2) The standards applicable to discovery requests under the Iowa 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.
b. 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.
4. Service.
a. Any civil investigative demand issued under subsection 1 may be served by a false claims law investigator, or by any official authorized to issue civil investigative demands.
b. Service of any civil investigative demand issued under subsection 1 or of any petition filed under subsection 9 may be made upon a partnership, corporation, association, or other legal entity by any of the following methods:
(1) 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.
(2) Delivering an executed copy of such demand or petition to the principal office or place of business of the partnership, corporation, association, or entity.
(3) 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.
c. Service of any such demand or petition may be made upon any natural person by any of the following methods:
(1) Delivering an executed copy of such demand or petition to the person.
(2) 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.
d. A verified return by the individual serving any civil investigative demand issued under subsection 1 or any petition filed under subsection 9 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.
5. Documentary material.
a. 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 the following persons, as applicable:
(1) In the case of a natural person, the person to whom the demand is directed.
(2) 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.
b. 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.
c. 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 agree and prescribe in writing, or as the court may direct under subsection 9. Such material shall be made 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.
6. Interrogatories.
a. 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 the following persons, as applicable:
(1) In the case of a natural person, the person to whom the demand is directed.
(2) In the case of a person other than a natural person, the person or persons responsible for answering each interrogatory.
b. 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.
7. Oral examinations.
a. 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 this state 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 Iowa rules of civil procedure.
b. 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 state, any person who may be agreed upon by the attorney for the state and the person giving the testimony, the officer before whom the testimony is to be taken, and any stenographer taking such testimony.
c. The oral testimony of any person taken pursuant to a civil investigative demand served under this section shall be taken in any state in 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.
d. 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 thirty days after being afforded a reasonable opportunity to examine the transcript, the officer or the false claims law investigator shall sign the transcript 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, for the waiver, illness, absence, or refusal.
e. 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.
f. Upon payment of reasonable charges for a copy, 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.
g. (1) Any person compelled to appear for oral testimony under a civil investigative demand issued under subsection 1 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 state under subsection 9 for an order compelling such person to answer such question.
(2) 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 applicable law.
h. Any person appearing for oral testimony under a civil investigative demand issued under subsection 1 shall be entitled to the same fees and allowances which are paid to witnesses in the district courts of the state.
8. Custodians of documents, answers, and transcripts.
a. 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.
b. (1) 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 their use and for the return of documentary material under paragraph “d”.
(2) 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. 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.
(3) Except as otherwise provided in this subsection, documentary material, answers to interrogatories, or transcripts of oral testimony, or copies of documentary materials, answers, or transcripts, while in the possession of the custodian, shall not 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 (2). This prohibition 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 general assembly, including any committee or subcommittee of the general assembly, or to any other agency of the state for use by such agency in furtherance of its statutory responsibilities.
(4) While in the possession of the custodian and under such reasonable terms and conditions as the attorney general shall prescribe, all of the following shall apply, as applicable:
(a) 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.
(b) 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.
c. If an attorney of the department of justice has been designated to appear before any court, grand jury, state agency, 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 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.
d. 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 any case or proceeding before the court or grand jury arising out of such investigation, or any proceeding before any state agency or federal agency involving such material, has been completed, or a case or proceeding in which such material may be used has not 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 5 or made for the department of justice under paragraph “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.
e. (1) 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 do all of the following:
(a) Designate another false claims law investigator to serve as custodian of such material, answers, or transcripts.
(b) Transmit in writing to the person who produced such material, answers, or testimony notice of the identity and address of the successor designated.
(2) Any person who is designated to be a successor under this paragraph “e” 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.
9. Judicial proceedings.
a. If a person fails to comply with any civil investigative demand issued under subsection 1, or if satisfactory copying or reproduction of any material requested in such demand cannot be completed and such person refuses to surrender such material, the attorney general may file, in the district court of the state for any county 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.
b. (1) A person who has received a civil investigative demand issued under subsection 1 may file, in the district court of the state for the county 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 state for the county in which the proceeding in which such discovery was obtained is or was last pending. Any petition under this paragraph shall be filed in accordance with the following, as applicable:
(a) Within twenty 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.
(b) Within such longer period as may be prescribed in writing by any false claims law investigator identified in the demand.
(2) The petition shall specify each ground upon which the petitioner relies in seeking relief under subparagraph (1), 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.
c. (1) In the case of any civil investigative demand issued under subsection 1 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 state for the county 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 shall be filed in accordance with the following, as applicable:
(a) Within twenty 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.
(b) Within such longer period as may be prescribed in writing by any false claims law investigator identified in the demand.
(2) The petition shall specify each ground upon which the petitioner relies in seeking relief under subparagraph (1), 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.
d. 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 1, 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 state for the judicial district within which the office of such custodian is located, 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.
e. If a petition is filed in any district court of the state 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 in accordance with the Iowa rules of civil procedure. Any disobedience of any final order entered under this section by any court shall be punished as a contempt of the court.
f. The Iowa 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.
10. Disclosure exemption. Any documentary material, answers to written interrogatories, or oral testimony provided under any civil investigative demand issued under subsection 1 shall be deemed confidential and exempt from disclosure under chapter 22.
2010 Acts, ch 1031, §343; 2010 Acts, ch 1193, §64
Referred to in §685.1