15 U.S.C. § 1312 — Civil investigative demands

Page 1391 TITLE 15—COMMERCE AND TRADE § 1312 Title 28, Judiciary and Judicial Procedure, and enact- ing provisions set out as notes under sections 15, 16, and 18 of this title] may be cited as the ‘Antitrust Proce- dural Improvements Act of 1980’.’’ SHORT TITLE Pub. L. 87–664, § 1, Sept. 19, 1962, 76 Stat. 548, provided: ‘‘That this Act [enacting this chapter and amending section 1505 of Title 18, Crimes and Criminal Procedure] may be cited as the ‘Antitrust Civil Process Act’.’’ SAVINGS PROVISION Pub. L. 87–664, § 7, Sept. 19, 1962, 76 Stat. 552, provided that: ‘‘Nothing contained in this Act [see Short Title note above] shall impair the authority of the Attorney General, the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice, or any antitrust investigator to (a) lay before any grand jury impaneled before any district court of the United States any evidence concerning any alleged antitrust violation, (b) invoke the power of any such court to compel the production of any evidence before any such grand jury, or (c) institute any proceeding for the en- forcement of any order or process issued in execution of such power, or to punish disobedience of any such order of process by any person, including a natural person.’’ § 1312. Civil investigative demands (a) Issuance; service; production of material; testimony Whenever the Attorney General, or the Assist- ant Attorney General in charge of the Antitrust Division of the Department of Justice, has rea- son to believe that any person may be in posses- sion, custody, or control of any documentary material, or may have any information, relevant to a civil antitrust investigation or, with re- spect to the International Antitrust Enforce- ment Assistance Act of 1994 [15 U.S.C. 6201 et seq.], an investigation authorized by section 3 of such Act [15 U.S.C. 6202], he may, prior to the in- stitution of a civil or criminal proceeding by the United States thereon, issue in writing, and cause to be served upon such person, a civil in- vestigative demand requiring such person to produce such documentary material for inspec- tion and copying or reproduction, to answer in writing written interrogatories, to give oral tes- timony concerning documentary material or in- formation, or to furnish any combination of such material, answers, or testimony. Whenever a civil investigative demand is an express de- mand for any product of discovery, the Attorney General or the Assistant Attorney General in charge of the Antitrust Division shall cause to be served, in any manner authorized by this sec- tion, a copy of such demand upon the person from whom the discovery was obtained and no- tify the person to whom such demand is issued of the date on which such copy was served. (b) Contents; return date for demand for product of discovery Each such demand shall— (1) state the nature of— (A) the conduct constituting the alleged antitrust violation, or (B) the activities in preparation for a merger, acquisition, joint venture, or simi- lar transaction, which, if consummated, may result in an antitrust violation, which are under investigation and the provi- sion of law applicable thereto; (2) if it is a demand for production of docu- mentary material— (A) describe the class or classes of docu- mentary material to be produced thereunder with such definiteness and certainty as to permit such material to be fairly identified; (B) prescribe a return date or dates which will provide a reasonable period of time within which the material so demanded may be assembled and made available for inspec- tion and copying or reproduction; and (C) identify the custodian to whom such material shall be made available; or (3) if it is a demand for answers to written interrogatories— (A) propound with definiteness and cer- tainty the written interrogatories to be an- swered; (B) prescribe a date or dates at which time answers to written interrogatories shall be submitted; and (C) identify the custodian to whom such answers shall be submitted; or (4) if it is a demand for the giving of oral tes- timony— (A) prescribe a date, time, and place at which oral testimony shall be commenced; and (B) identify an antitrust investigator who shall conduct the examination and the cus- todian to whom the transcript of such exam- ination shall be submitted. Any such demand which is an express demand for any product of discovery shall not be re- turned or returnable until twenty days after a copy of such demand has been served upon the person from whom the discovery was obtained. (c) Protected material or information; demand for product of discovery superseding disclo- sure restrictions except trial preparation ma- terials (1) No such demand shall require the produc- tion of any documentary material, the submis- sion of any answers to written interrogatories, or the giving of any oral testimony, if such ma- terial, answers, or testimony would be protected from disclosure under— (A) the standards applicable to subpenas or subpenas duces tecum issued by a court of the United States in aid of a grand jury investiga- tion, or (B) the standards applicable to discovery re- quests under the Federal Rules of Civil Proce- dure, to the extent that the application of such standards to any such demand is appro- priate and consistent with the provisions and purposes of this chapter. (2) Any such demand which is an express de- mand for any product of discovery supersedes any inconsistent order, rule, or provision of law (other than this chapter) preventing or restrain- ing disclosure of such product of discovery to any person. Disclosure of any product of dis- covery pursuant to any such express demand does not constitute a waiver of any right or privilege, including without limitation any right or privilege which may be invoked to re- sist discovery of trial preparation materials, to which the person making such disclosure may be entitled. Page 1392 TITLE 15—COMMERCE AND TRADE § 1312 1 So in original. Probably should be capitalized. 2 See References in Text note below. (d) Service; jurisdiction (1) Any such demand may be served by any antitrust investigator, or by any United States marshal or deputy marshal, at any place within the territorial jurisdiction of any court of the United States. (2) any 1 such demand or any petition filed under section 1314 of this title may be served upon any person who is not to be found within the territorial jurisdiction of any court of the United States, in such manner as the Federal Rules of Civil Procedure prescribe for service in a foreign country. To the extent that the courts of the United States can assert jurisdiction over such person consistent with due process, the United States District Court for the District of Columbia shall have the same jurisdiction to take any action respecting compliance with this chapter by such person that such court would have if such person were personally within the jurisdiction of such court. (e) Service upon legal entities and natural per- sons (1) Service of any such demand or of any peti- tion filed under section 1314 of this title may be made upon a partnership, corporation, associa- tion, or other legal entity by— (A) delivering a duly executed copy thereof to any partner, executive officer, managing agent, or general agent thereof, or to any agent thereof authorized by appointment or by law to receive service of process on behalf of such partnership, corporation, association, or entity; (B) delivering a duly executed copy thereof to the principal office or place of business of the partnership, corporation, association, or entity to be served; or (C) depositing such copy in the United States mails, by registered or certified mail, return receipt requested, duly addressed to such partnership, corporation, association, or entity at its principal office or place of busi- ness. (2) Service of any such demand or of any peti- tion filed under section 1314 of this title may be made upon any natural person by— (A) delivering a duly executed copy thereof to the person to be served; or (B) depositing such copy in the United States mails by registered or certified mail, return receipt requested, duly addressed to such person at his residence or principal office or place of business. (f) Proof of service A verified return by the individual serving any such demand or petition setting forth the man- ner 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 de- mand. (g) Sworn certificates The production of documentary material in re- sponse to a demand served pursuant to this sec- tion shall be made under a sworn certificate, in such form as the demand designates, by the per- son, if a natural person, to whom the demand is directed or, if not a natural person, by a person or persons having knowledge of the facts and circumstances relating to such production, to the effect 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 custodian. (h) Interrogatories Each interrogatory in a demand served pursu- ant to this section shall be answered separately and fully in writing under oath, unless it is ob- jected to, in which event the reasons for the ob- jection shall be stated in lieu of an answer, and it shall be submitted under a sworn certificate, in such form as the demand designates, by the person, if a natural person, to whom the demand is directed or, if not a natural person, by a per- son or persons responsible for answering each in- terrogatory, to the effect 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 sub- mitted. (i) Oral examinations (1) The examination of any person pursuant to a demand for oral testimony served under this section shall be taken before an officer author- ized to administer oaths and affirmations by the laws of the United States 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 person- ally, or by someone acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken steno- graphically and transcribed. When the testi- mony is fully transcribed, the officer before whom the testimony is taken shall promptly transmit a copy of the transcript of the testi- mony to the custodian. (2) The antitrust investigator or investigators conducting the examination shall exclude from the place where the examination is held all other persons except the person being examined, his counsel, the officer before whom the testi- mony is to be taken, and any stenographer tak- ing such testimony. The provisions of section 30 2 of this title shall not apply to such examina- tions. (3) The oral testimony of any person taken pursuant to a demand served under this section shall be taken in the judicial district of the United States within which such person resides, is found, or transacts business, or in such other place as may be agreed upon by the antitrust in- vestigator conducting the examination and such person. (4) When the testimony is fully transcribed, the antitrust investigator or the officer shall af- ford the witness (who may be accompanied by counsel) a reasonable opportunity to examine the transcript; and the transcript shall be read to or by the witness, unless such examination and reading are waived by the witness. Any changes in form or substance which the witness Page 1393 TITLE 15—COMMERCE AND TRADE § 1312 desires to make shall be entered and identified upon the transcript by the officer or the anti- trust investigator with a statement of the rea- sons 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 wit- ness within thirty days of his being afforded a reasonable opportunity to examine it, the offi- cer or the antitrust 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 reason, if any, given therefor. (5) The officer shall certify on the transcript that the witness was duly sworn by him and that the transcript is a true record of the testimony given by the witness, and the officer or antitrust investigator shall promptly deliver it or send it by registered or certified mail to the custodian. (6) Upon payment of reasonable charges there- for, the antitrust investigator shall furnish a copy of the transcript to the witness only, ex- cept that the Assistant Attorney General in charge of the Antitrust Division may for good cause limit such witness to inspection of the of- ficial transcript of his testimony. (7)(A) Any person compelled to appear under a demand for oral testimony pursuant to this sec- tion may be accompanied, represented, and ad- vised by counsel. Counsel may advise such per- son, in confidence, either upon the request of such person or upon counsel’s own initiative, with respect to any question asked of such per- son. 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 properly be made, received, and entered upon the record when it is claimed that such person is entitled to refuse to answer the question on grounds of any constitutional or other legal right or privi- lege, including the privilege against self-in- crimination. Such person shall not otherwise ob- ject to or refuse to answer any question, and shall not by himself or through counsel other- wise interrupt the oral examination. If such per- son refuses to answer any question, the anti- trust investigator conducting the examination may petition the district court of the United States pursuant to section 1314 of this title for an order compelling such person to answer such question. (B) If such person refuses to answer any ques- tion on grounds of the privilege against self-in- crimination, the testimony of such person may be compelled in accordance with the provisions of Part V of title 18. (8) Any person appearing for oral examination pursuant to a demand served under this section shall be entitled to the same fees and mileage which are paid to witnesses in the district courts of the United States. (Pub. L. 87–664, § 3, Sept. 19, 1962, 76 Stat. 548; Pub. L. 94–435, title I, § 102, Sept. 30, 1976, 90 Stat. 1384; Pub. L. 96–349, § 2(b)(1)–(3), Sept. 12, 1980, 94 Stat. 1154; Pub. L. 103–438, § 3(e)(1)(B), Nov. 2, 1994, 108 Stat. 4598.) Editorial Notes REFERENCES IN TEXT The International Antitrust Enforcement Assistance Act of 1994, referred to in subsec. (a), is Pub. L. 103–438, Nov. 2, 1994, 108 Stat. 4597, which is classified prin- cipally to chapter 88 (§ 6201 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 6201 of this title and Tables. This chapter, referred to in subsecs. (c)(1)(B), (2) and (d), was in the original ‘‘this Act’’, meaning Pub. L. 87–664, known as the Antitrust Civil Process Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1311 of this title and Tables. Section 30 of this title, referred to in subsec. (i)(2), was repealed by Pub. L. 107–273, div. C, title IV, § 14102(f), Nov. 2, 2002, 116 Stat. 1922. AMENDMENTS 1994—Subsec. (a). Pub. L. 103–438 inserted ‘‘or, with respect to the International Antitrust Enforcement As- sistance Act of 1994, an investigation authorized by sec- tion 3 of such Act’’ after ‘‘investigation’’ and ‘‘by the United States’’ after ‘‘proceeding’’. 1980—Subsec. (a). Pub. L. 96–349, § 2(b)(1), inserted pro- vision for service and notice of a civil investigative de- mand for any product of discovery. Subsec. (b). Pub. L. 96–349, § 2(b)(2), inserted provision respecting time demand for product of discovery is re- turnable. Subsec. (c). Pub. L. 96–349, § 2(b)(3), designated exist- ing provisions as par. (1), redesignated as cls. (A) and (B) former cls. (1) and (2), and added par. (2). 1976—Subsec. (a). Pub. L. 94–435 struck out ‘‘under in- vestigation’’ before ‘‘may be in possession’’, inserted ‘‘or may have any information’’ after ‘‘any documen- tary material’’, and inserted provision requiring the production of documentary material for inspection or reproduction, answers in writing to written interrog- atories, the giving of oral testimony concerning docu- mentary material or information, and the furnishing of any combination of such material, answers, or testi- mony. Subsec. (b). Pub. L. 94–435 restructured subsec. (b) and as so restructured, in par. (1) inserted provisions of cl. (B), in par. (2), added cls. (B) and (C), in par. (3) sub- stituted provisions relating to written interrogatories for provisions relating to prescription of a return date for demanded material, and in par. (4), substituted pro- visions relating to oral testimony for provisions requir- ing a demand to identify the custodian to whom de- manded material shall be made available. Subsec. (c). Pub. L. 94–435 inserted provision relating to the submission of answers to written interrogatories and the giving of oral testimony, struck out provisions of par. (1) relating to the reasonableness requirement for demands for documentary material, redesignated par. (2) as (1) and provided that protected status of any information or material would be determined by stand- ards applicable in the case of a subpena or subpena duces tecum issued by a court of the United States, and added par. (2). Subsec. (d). Pub. L. 94–435 redesignated existing pro- visions as par. (1) and added par. (2). Subsec. (e). Pub. L. 94–435 redesignated existing provi- sions as par. (1), inserted ‘‘return receipt requested’’ after ‘‘certified mail’’ in par. (C), and added par. (2). Subsecs. (g) to (i). Pub. L. 94–435 added subsecs. (g) to (i). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1976 AMENDMENT Amendment by Pub. L. 94–435 effective Sept. 30, 1976, except subsec. (i)(8) of this section effective Oct. 1, 1976, see section 106 of Pub. L. 94–435, set out as a note under section 1311 of this title. Page 1394 TITLE 15—COMMERCE AND TRADE § 1313 1 See References in Text note below. § 1313. Custodian of documents, answers and transcripts (a) Designation The Assistant Attorney General in charge of the Antitrust Division of the Department of Jus- tice shall designate an antitrust investigator to serve as custodian of documentary material, an- swers to interrogatories, and transcripts of oral testimony received under this chapter, and such additional antitrust investigators as he shall de- termine from time to time to be necessary to serve as deputies to such officer. (b) Production of materials Any person, upon whom any demand under section 1312 of this title for the production of documentary material has been duly served, shall make such material available for inspec- tion and copying or reproduction to the custo- dian designated therein at the principal place of business of such person (or at such other place as such custodian and such person thereafter may agree and prescribe in writing or as the court may direct, pursuant to section 1314(d) 1 of this title) on the return date specified in such demand (or on such later date as such custodian may prescribe in writing). Such person may upon written agreement between such person and the custodian substitute copies for originals of all or any part of such material. (c) Responsibility for materials; disclosure (1) The custodian to whom any documentary material, answers to interrogatories, or tran- scripts of oral testimony are delivered shall take physical possession thereof, and shall be re- sponsible for the use made thereof and for the return of documentary material, pursuant to this chapter. (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 duly authorized official, employee, or agent of the Department of Justice under regulations which shall be promulgated by the Attorney General. Notwithstanding paragraph (3) of this subsection, such material, answers, and tran- scripts may be used by any such official, em- ployee, or agent in connection with the taking of oral testimony pursuant to this chapter. (3) Except as otherwise provided in this sec- tion, while in the possession of the custodian, no documentary material, answers to interrog- atories, or transcripts of oral testimony, or cop- ies thereof, so produced shall be available for ex- amination, without the consent of the person who produced such material, answers, or tran- scripts, and, in the case of any product of dis- covery produced pursuant to an express demand for such material, of the person from whom the discovery was obtained, by any individual other than a duly authorized official, employee, or agent of the Department of Justice. Nothing in this section is intended to prevent disclosure to either body of the Congress or to any authorized committee or subcommittee thereof. (4) While in the possession of the custodian and under such reasonable terms and conditions as the Attorney General shall prescribe, (A) doc- umentary material and answers to interrog- atories shall be available for examination by the person who produced such material or answers, or by any duly authorized representative of such person, and (B) transcripts of oral testimony shall be available for examination by the person who produced such testimony, or his counsel. (d) Use of investigative files (1) Whenever any attorney of the Department of Justice has been designated to appear before any court, grand jury, or Federal administrative or regulatory agency in any case or proceeding, the custodian of any documentary material, an- swers to interrogatories, or transcripts of oral testimony may deliver to such attorney such material, answers, or transcripts for official use in connection with any such case, grand jury, or proceeding as such attorney determines to be re- quired. Upon the completion of any such case, grand jury, or proceeding, such attorney shall return to the custodian any such material, an- swers, or transcripts so delivered which have not passed into the control of such court, grand jury, or agency through the introduction thereof into the record of such case or proceeding. (2) The custodian of any documentary mate- rial, answers to interrogatories, or transcripts of oral testimony may deliver to the Federal Trade Commission, in response to a written request, copies of such material, answers, or transcripts for use in connection with an investigation or proceeding under the Commission’s jurisdiction. Such material, answers, or transcripts may only be used by the Commission in such manner and subject to such conditions as apply to the De- partment of Justice under this chapter. (e) Return of material to producer If any documentary material has been pro- duced in the course of any antitrust investiga- tion by any person pursuant to a demand under this chapter and— (1) any case or proceeding before any court or grand jury arising out of such investiga- tion, or any proceeding before any Federal ad- ministrative or regulatory agency involving such material, has been completed, or (2) no case or proceeding, in which such ma- terial may be used, has been commenced with- in 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 cop- ies thereof furnished to the custodian pursuant to subsection (b) of this section or made by the Department of Justice pursuant to subsection (c) of this section) which has not passed into the control of any court, grand jury, or agency through the introduction thereof into the record of such case or proceeding. (f) Appointment of successor custodians In the event of the death, disability, or separa- tion from service in the Department of Justice of the custodian of any documentary material, answers to interrogatories, or transcripts of oral testimony produced under any demand issued