32 V.S.A. § 642 — Civil investigative demands

(a) In general.
(1) Issuance and service. Whenever the Attorney General or a designee 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 subsection 632(a) of this title or making an election under subsection 632(b) of this title, issue in writing and cause to be served upon such person a civil investigative demand
requiring such person:
(A) to produce such documentary material for inspection and copying;
(B) to answer in writing written interrogatories with respect to such documentary material
or information;
(C) to give oral testimony concerning such documentary material or information; or
(D) to furnish any combination of such material, answers, or testimony.
(2) Service authority. The Attorney General may delegate the authority to issue civil investigative demands
under this subsection. Whenever a civil investigative demand is an express demand
for any product of discovery, the Attorney General, the 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 relator if
the Attorney General or designee determines it is necessary as part of any false claims
act investigation.
(3) Contents and deadlines.
(A) Each civil investigative demand issued under subdivision (1) of this subsection (a)
shall state the nature of the conduct constituting the alleged violation of a false
claims law that 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:
(i) describe each class of documentary material to be produced with such definiteness
and certainty as to permit such material to be fairly identified;
(ii) prescribe a return date for each such class that will provide a reasonable period
of time within which the material so demanded may be assembled and made available
for inspection and copying; and
(iii) 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:
(i) set forth with specificity the written interrogatories to be answered;
(ii) prescribe dates at which time answers to written interrogatories shall be submitted;
and
(iii) 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:
(i) prescribe a date, time, and place at which oral testimony shall be commenced;
(ii) identify a false claims law investigator who shall conduct the examination;
(iii) specify that such attendance and testimony are necessary to the conduct of the investigation;
(iv) notify the person receiving the demand of the right to be accompanied by an attorney
and any other representative; and
(v) 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 that is an express demand
for any product of discovery shall not be returned or returnable until 20 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 that is not less than seven business
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 that 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.
(b) Protected material or information.
(1) In general. A civil investigative demand issued under subsection (a) of this section may 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:
(A) the standards applicable to subpoenas or subpoenas duces tecum issued by a court of
the State of Vermont to aid in a grand jury investigation or conduct an inquest; or
(B) the standards applicable to discovery requests under the Vermont 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.
(2) Effect on other orders, rules, and laws. Any such demand that 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 that the person making such disclosure may be entitled
to invoke to resist discovery of trial preparation materials.
(c) Service; jurisdiction.
(1) By whom served. Any civil investigative demand issued under this section may be served by a false
claims law investigator, by a law enforcement officer, or by any other individual
authorized by law to serve legal process in the jurisdiction in which the demand is
served.
(2) Service outside Vermont. Any demand issued under this section or any petition filed under subsection (i) of
this section may be served upon any person or entity who is not found in Vermont,
consistent with 12 V.S.A. chapter 25 and in any such manner as provided in the Vermont Rules of Civil Procedure for personal
service outside the State. To the extent that the courts of Vermont can assert jurisdiction
over any person consistent with due process, the Civil Division of the Superior Court
of Washington County shall have the same jurisdiction to take any action respecting
compliance with this section by any such person that such court would have if such
person were personally within the jurisdiction of such court.
(d) Service upon legal entities and natural persons.
(1) Legal entities. Service of any civil investigative demand issued under subsection (a) of this section
or of any petition filed under subsection (i) of this section may be made upon a partnership,
corporation, association, or other legal entity by:
(A) 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;
(B) delivering an executed copy of such demand or petition to the principal office or
place of business of the partnership, corporation, association, or entity;
(C) depositing an executed copy of such demand or petition in the U.S. mail by registered
or certified mail, return receipt requested, addressed to such partnership, corporation,
association, or entity at its principal office or place of business; or
(D) by any other method provided by 12 V.S.A. chapter 25 or the Vermont Rules of Civil Procedure.
(2) Natural persons. Service of any such demand or petition may be made upon any natural person by:
(A) delivering an executed copy of such demand or petition to the person;
(B) depositing an executed copy of such demand or petition in the U.S. mail by registered
or certified mail, return receipt requested, addressed to the person at the person’s
residence or principal office or place of business; or
(C) by any other method provided by 12 V.S.A. chapter 25 or the Vermont Rules of Civil Procedure.
(e) Proof of service. A verified return by the individual serving any civil investigative demand issued
under subsection (a) of this section or any petition filed under subsection (i) of
this section 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.
(f) Documentary material.
(1) Sworn certificates. 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:
(A) in the case of a natural person, the person to whom the demand is directed; or
(B) 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.
(2) Contents of certificate. 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. 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.
(3) Production of materials. 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 thereafter may agree and prescribe in writing,
or as the court may direct under subdivision (i)(1) of this section. Such material
shall be made so 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.
(g) Interrogatories.
(1) 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:
(A) in the case of a natural person, the person to whom the demand is directed; or
(B) in the case of a person other than a natural person, the person or persons responsible
for answering each interrogatory.
(2) 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.
(h) Oral examinations.
(1) Procedures. 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 Vermont 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 Attorney General or a designee.
This subsection shall not preclude the taking of testimony by any means authorized
by, and in a manner consistent with, the Vermont Rules of Civil Procedure.
(2) Persons present. 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 government, any person who may be agreed upon by the attorney
for the government and the person giving the testimony, the officer before whom the
testimony is to be taken, and any stenographer taking such testimony.
(3) Where testimony taken. The oral testimony of any person taken pursuant to a civil investigative demand served
under this section shall be taken not more than 50 miles from where 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.
(4) Transcript of testimony. 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
that 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 30
days after being afforded a reasonable opportunity to examine it, the officer or the
false claims law investigator shall sign it 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, given.
(5) Certification and delivery to Attorney General. 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 Attorney General or a designee.
(6) Furnishing or inspection of transcript by witness. Upon payment of reasonable charges, 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.
(7) Conduct of oral testimony.
(A) Any person compelled to appear for oral testimony under a civil investigative demand
issued under subsection (a) of this section 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 Civil
Division of Washington County Superior Court under subdivision (i)(1) of this section
for an order compelling such person to answer such question.
(B) 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
the provisions of 12 V.S.A. § 1664.
(8) Witness fees and allowances. Any person appearing for oral testimony under a civil investigative demand issued
under subsection (a) of this section shall be entitled to the same fees and allowances
that are paid to witnesses in the courts of the State of Vermont.
(i) Judicial proceedings.
(1) Petition for enforcement. Whenever any person fails to comply with any civil investigative demand issued under
subsection (a) of this section, or whenever satisfactory copying or reproduction of
any material requested in such demand cannot be done and such person refuses to surrender
such material, the Attorney General may file, in the Civil Division of Washington
County Superior Court or the Civil Division in 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.
(2) Petition to modify or set aside demand.
(A) Any person who has received a civil investigative demand issued under subsection (a)
of this section may file, in the Civil Division of Washington County Superior Court
or the Civil Division in any county in which such person resides, is found, or transacts
business, and serve upon the Attorney General’s Office 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 Civil Division in which the proceeding in which
such discovery was obtained is or was last pending. Any petition under this subdivision
(2) must be filed:
(i) within 20 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; or
(ii) within such longer period as may be prescribed in writing by any false claims law
investigator identified in the demand.
(B) The petition shall specify each ground upon which the petitioner relies in seeking
relief under subdivision (A) of this subdivision (2) 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.
(3) Petition to modify or set aside demand for product of discovery.
(A) In the case of any civil investigative demand issued under subsection (a) of this
section that is an express demand for any product of discovery, the person from whom
such discovery was obtained may file, in the Civil Division 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
subdivision (3) must be filed:
(i) within 20 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; or
(ii) within such longer period as may be prescribed in writing by any false claims law
investigator identified in the demand.
(B) The petition shall specify each ground upon which the petitioner relies in seeking
relief under subdivision (A) of this subdivision (3) 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.
(4) Jurisdiction. Whenever any petition is filed 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
may be appealed to the Vermont Supreme Court. Any disobedience of any final order
entered under this section by any court shall be punished as a contempt of the court.
(5) Applicability of Rules of Civil Procedure. The 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.
(j) Use and disclosure of material, answers, or transcripts. The Office of the Attorney General may use the material, answers to interrogatories,
or transcripts for any lawful purpose in conducting its investigation under the false
claims law, including sharing the materials with the relator as provided in subdivision
(a)(1) of this section. Further, whenever any attorney from the Office of the Attorney
General has been designated to appear before any court, grand jury, or agency in any
case or proceeding, such attorney may obtain, possess, and use any documentary material,
answers to interrogatories, or transcripts of oral testimony received under this section
for official use in connection with any such case or proceeding as such attorney determines
to be required. Any documentary material, answers to written interrogatories, or oral
testimony provided under any civil investigative demand issued under subsection (a)
of this section shall not be used or disclosed in any other manner than set forth
in this subsection without a Court order. No order authorizing such further use or
disclosure shall issue without notice to the Attorney General and the person from
whom such discovery was obtained and, if requested by either of those parties, an
opportunity to present arguments or evidence, or both, on the issue of disclosure.
(k) Definitions. As used in this section:
(1) “False claims law investigation” means any inquiry conducted by any false claims law
investigator for the purpose of ascertaining whether any person is or has been engaged
in any violation of a false claims law.
(2) “False claims law investigator” means any attorney or investigator employed by the
Attorney General’s Office who is charged with the duty of enforcing or carrying into
effect any false claims law, or any officer or employee of Vermont acting under the
direction and supervision of such attorney or investigator in connection with a false
claims law investigation.
(3) “Documentary material” includes the original or any copy of any book, record, report,
memorandum, paper, communication, tabulation, chart, or other document, or data compilations
stored in or accessible through computer or other information retrieval systems, together
with instructions and all other materials necessary to use or interpret such data
compilations, and any product of discovery.
(4) “Product of discovery” includes:
(A) the original or duplicate of any deposition, interrogatory, document, thing, result
of the inspection of land or other property, examination, or admission, which is obtained
by any method of discovery in any judicial or administrative proceeding of an adversarial
nature;
(B) any digest, analysis, selection, compilation, or derivation of any item listed in
subdivision (A) of this subdivision (4); and
(C) any index or other manner of access to any item listed in subdivision (A) of this
subdivision (4).
(5) “Official use” means any use that is consistent with the law, and the rules and policies
of the Office of the Attorney General, including use in connection with internal office
memoranda and reports; communications between the office and a federal, State, or
local government agency, or a contractor of a federal, State, or local government
agency, undertaken in furtherance of an office investigation or prosecution of a case;
interviews of any qui tam relator or other witness; oral examinations; depositions;
preparation for and response to civil discovery requests; introduction into the record
of a case or proceeding; applications, motions, memoranda, and briefs submitted to
a court or other tribunal; and communications with government investigators, auditors,
consultants, experts, the counsel of other parties, arbitrators, and mediators, concerning
an investigation, case, or proceeding. (