Challenging Civil Investigative Subpoenas or Civil Investigative Demands

Posted by Clyde Hutchins | Feb 20, 2020 | 0 Comments

One of the challenges of online marketing on a national level in the US is getting the attention of the government. There are plenty of compliance areas where one can run afoul of a government regulation or law, or appear to run afoul of such a law.

If you are advertising and selling products online, the Federal Trade Commission and State Attorney Generals of each state may become aware of your company through consumer complaints, the Better Business Bureau or referrals from other agencies. If the complaints suggest that your company may have run afoul of some regulation or law, the government is apt to begin an investigation. Many jurisdictions will start with a cheery letter or informal written inquiry. Others will begin with their investigator issuing a civil investigative demand or civil investigative subpoena.

If your company receives a civil investigative demand or civil investigative subpoena, you should take the following steps immediately:


(1) Determine the deadline to respond. Sometimes the date is written on the demand or subpoena. Other times you have to calculate it from the date it was delivered to your company. Also determine whether the demand or subpoena is just requesting documents and information, or if it is seeking to interview of depose a representative of your company. If the latter, then you should seriously consider opening a dialogue with the government investigator or challenging the subpoena to force the government to show its suspicions. The last thing you want to do is walk into an interview or deposition unprepared.

(2) Ascertain what the problem might be. Some demands and subpoenas are deliberately vague. They allude to some unfair or deceptive practice, but do not explain what it is that the government is concerned about. You may be able to determine what the issues might be from the documents and information sought.

(3) If you can determine what the government is concerned about, then analyze the situation to see what your liability might be. This would take into consideration what type of financial hit your company will suffer if the issue can only be resolved through refunds. Note that some government agencies will also seek civil penalties on top of any refunds.

(4) Gather the documents and information quickly. Then review for confidentiality issues. Many times it is possible to negotiate or seek some sort of protection for confidential commercial information, customer lists, etc.

(5) Contact the investigator or person who signed the civil investigative demand or civil investigative subpoena to open a dialogue. Sometimes you will learn from that conversation what the government is most concerned about.

(6) If you determine that the government is really on a "fishing expedition" then challenge the demand or subpoena in court. Most demands or subpoenas allow for court challenges. There are various grounds for challenging them. A challenge can also result in you learning more about the government's motives and suspicions. More importantly, a strategic challenge can nullify the investigation altogether. A challenge will reset the clock on the response date. Be mindful though that the deadline for challenging the demand or subpoena is not the same as the response date and can be significantly sooner.

(7) If the potential liability seems manageable, the confidential information is protected and the investigation reasonable, then move forward with producing the documents. Keep copies of everything produced.

(8) If the potential liability is going to sink your company, then you have to regroup and come up with a strategy for handling the problem.

(9) If it appears that your company is at fault, and you think you can manage the liability and recover, then be extra cooperative and proactive with the investigative process. The sooner you address the issues and resolve them, the less expensive it will be for you and the sooner you can turn your full attention to making a profit. Not to mention that with most government agencies, cooperation can help to minimize the civil penalties, if any.

(10) If you have any concerns or uncertainties, please contact a lawyer if you have not already retained one. Under no circumstances ignore the demand or subpoena.

Best wishes for dealing with that civil investigative subpoena or civil investigative demand. If you have any questions, feel free to contact Harmony Law, LLC at 970-488-1857.

About the Author

Clyde Hutchins

Clyde Hutchins is the founder of Harmony Law. Mr. Hutchins started his legal career in Cheyenne, Wyoming as a law clerk for the district court judges. Mr. Hutchins then entered private practice with a Wyoming based litigation and business law firm. Later, Mr. Hutchins went to Alaska, where he was the chief litigator for a firm that engaged in bond law, corporate law, securities law, and municipal law. The State of Wyoming hired Mr. Hutchins from Alaska to represent the State of Wyoming in the national tobacco arbitration and act as its tobacco settlement attorney. While in that position, as a hobby, he developed an enforcement unit for consumer protection for Wyoming residents. Mr. Hutchins moved to Colorado in 2016 and founded Harmony Law, LLC. Harmony Law is primarily engaged in civil litigation. It is also a general practice firm in the areas of business law, estate planning, consumer law and family law. Harmony Law is active in all state and federal courts throughout Wyoming and Colorado.


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