CID Oral Testimony: Preparing for a DOJ Examination

A civil investigative demand issued under the False Claims Act can compel more than documents. It can require a named witness to appear for sworn oral testimony in a DOJ examination, often the first time anyone at the company has answered government lawyers under oath. The examination carries its own rights, separate from the document and interrogatory portions of the demand covered in Responding to a Civil Investigative Demand (CID). Preparing for that day means understanding the process and the rights that govern it, not rehearsing what the witness will say.

Who May Attend the Oral Examination

The demand sets a date, time, and place for the testimony, and under 31 U.S.C. Section 3733(a)(2)(F) that date cannot be less than seven days after the witness receives it, absent exceptional circumstances found by the Attorney General or a designated Assistant Attorney General. During the examination, the investigator excludes everyone except the witness, the witness's attorney and any other representative of the witness, the government's attorney, anyone both sides agree to admit, the oath-administering officer, and the stenographer, under Section 3733(h)(2). The witness's attorney may accompany, represent, and advise the witness throughout. Negotiating the terms of a demand with the assigned government attorney is covered in Civil Investigative Demands: Negotiating Scope.

Reviewing and Correcting the Transcript

Testimony is transcribed by a stenographer. Under Section 3733(h)(4), the investigator or oath-administering officer must give the witness, who may have counsel present, a reasonable opportunity to examine and read the transcript unless waived. Changes the witness wants go into the record with the witness's stated reason, rather than being edited out quietly. The witness then signs unless signing is waived in writing, the witness is ill, cannot be found, or refuses. The witness can get a copy on payment of reasonable charges, though the Attorney General, the Deputy Attorney General, or an Assistant Attorney General can limit a witness to inspecting the official transcript for good cause.

How Testimony Can Be Shared and Used Later

CID testimony does not stay in the examiner's file. Section 3733(a)(1) lets the Attorney General or a designee share information obtained under the statute, testimony included, with a qui tam relator if the Attorney General or designee determines it is necessary as part of a False Claims Act investigation, so the relator's own lawyers may eventually see what a witness said. If the government later intervenes, Department of Justice attorneys can use that transcript in the case, including in the discovery covered in Civil Discovery in FCA Cases: Managing the Burden. If the government declines and the relator proceeds alone, the transcript can still surface in that litigation.

Does the Witness Need a Separate Lawyer

A company's own counsel can attend a CID examination of one of its employees only as the witness's attorney or representative or with the agreement of the government's attorney and the witness, and a lawyer retained by the company represents the company unless that lawyer also takes on the witness as a client. When the witness's account could diverge from the company's position, or the inquiry could expose the witness individually, joint representation can create a conflict company counsel cannot resolve alone. An individual witness can retain personal counsel for the examination; the statute's own attendance list, naming both the witness's attorney and the government's attorney, assumes those are not the same person. That question is worth raising before the testimony date, not during it.

The Fifth Amendment When a Criminal Inquiry Runs Alongside

In United States v. Kordel, 397 U.S. 1 (1970), the Supreme Court refused to make a federal agency choose between seeking civil relief and recommending a criminal prosecution over the same conduct, while noting that it was not dealing with a case where the government brought a civil action solely to obtain evidence for its criminal prosecution, and a civil investigative demand can proceed alongside a criminal inquiry into the same facts. Section 3733(h)(7)(A) lets a witness object on the grounds of any constitutional or legal privilege, including self-incrimination, and that objection goes on the record. If the witness invokes the privilege, Section 3733(h)(7)(B) lets the government compel the testimony anyway under the immunity provisions in Part V of Title 18. That tradeoff affects how the testimony can be used later.

Preparing a witness for a civil investigative demand examination means understanding the process and the rights that govern it, not scripting the answers the witness will give.

Why Early Legal Counsel Is Critical

It is critical that healthcare providers and individual witnesses promptly retain experienced healthcare defense counsel once a civil investigative demand calls for oral testimony. Early counsel can clarify who may attend, address the privilege against self-incrimination where a parallel criminal inquiry is possible, and review the transcript before it reaches a qui tam relator or a later proceeding. Waiting until the examination date can mean working through all of it for the first time in the room.

How Health Law Alliance Can Help

Health Law Alliance has handled 5,000+ matters and brings 25+ years of experience. If your organization or one of its employees has been served with a demand for oral testimony, contact Health Law Alliance's False Claims Act defense attorneys for a free, confidential consultation before the examination date arrives.