What the government is doing
In False Claims Act investigations, the Justice Department can issue civil investigative demands requiring documents, written answers, and sworn oral testimony before any lawsuit is filed. Inspectors general may also issue subpoenas, and agency audits can feed into the same investigation. Many investigations are prompted by a sealed whistleblower complaint, which the company usually cannot see while the investigation runs. Others begin with data analytics, audit findings, or a referral from another agency. A demand is not a finding of liability, but how the company responds shapes the government's view of the matter. Similar demands may go to former employees, vendors, and billing contractors at the same time, so the company may not be the only source the government is hearing from.
Responding to a demand
Note the return date and contact the issuing attorney early to discuss scope, custodians, search terms, and a rolling production schedule, since reasonable narrowing is common when raised promptly. Issue a legal hold right away and suspend automatic deletion for the relevant systems and people. Review documents before producing them so the company understands its own record, and log anything withheld as privileged. Prepare witnesses for oral testimony carefully, since it is given under oath and transcribed. Employees contacted directly by investigators may speak with counsel first, and the company should not discourage them from cooperating.
Steering the investigation
In a first meeting we review the demand, identify the program and period at issue, and assess whether the questions point to a whistleblower and what that person might have seen. We discuss whether an internal investigation should run in parallel and how to keep it privileged, and whether there are signs of criminal interest. Once the facts are understood, there may be an opportunity to present the company's position before the government decides whether to intervene or sue. Where an overpayment is identified, we discuss returning it, since in federal health care programs keeping a known overpayment can create liability of its own.
