76-10-917 - Civil antitrust investigations -- Demand for production of documents and responses to written interrogatories -- Oral examination -- Judicial order for compliance -- Confidentiality -- Sub
76-10-917. Civil antitrust investigations -- Demand for production of documentsand responses to written interrogatories -- Oral examination -- Judicial order forcompliance -- Confidentiality -- Subpoenas precluded.
(1) When the attorney general has reasonable cause to believe that any person may be inpossession, custody, or control of any information relevant to a civil antitrust investigation, hemay, prior to the commencement of a civil action thereon, issue and cause to be served upon thatperson a written civil investigative demand requesting that person to:
(a) produce the documentary material for inspection, copying, or reproduction by thestate where the documents are located or produced;
(b) give oral testimony under oath, concerning the subject of the investigation;
(c) respond to written interrogatories; or
(d) furnish any combination of these.
(2) (a) Each demand shall state:
(i) The nature of the activities under investigation, constituting the alleged antitrustviolation, which may result in a violation of this act and the applicable provision of law;
(ii) that the recipient is entitled to counsel;
(iii) that the documents, materials, or testimony in response to the demand may be used ina civil or criminal proceeding;
(iv) that if the recipient does not comply with the demand the Office of the AttorneyGeneral may compel compliance by appearance, upon reasonable notice to the recipient, beforethe district court in the judicial district wherein the recipient resides or does business and onlyupon a showing before that district court that the requirements of Subsection (7) have been met;
(v) that the recipient has the right at any time before the return date of the demand, orwithin 30 days, whichever period is shorter, to seek a court order determining the validity of thedemand; and
(vi) that at any time during the proceeding the person may assert any applicable privilege.
(b) If the demand is for production of documentary material, it shall also:
(i) describe the documentary material to be produced with sufficient definiteness andcertainty as to permit the material to be fairly identified;
(ii) prescribe return dates that provide a reasonable period of time within which thematerial demanded may be assembled and made available for inspection and reproduction; and
(iii) identify the individual at the attorney general's office to whom the material shall bemade available.
(c) If the demand is for the giving of oral testimony, it shall also:
(i) prescribe the date, time, and place at which oral testimony shall be commenced;
(ii) state that a member of the attorney general's office staff shall conduct theexamination; and
(iii) state that the recording or the transcript of such examination shall be submitted to andmaintained by the Office of the Attorney General.
(d) If the demand is for responses to written interrogatories, it shall also:
(i) state that each interrogatory shall be answered separately and fully in writing andunder oath, unless the person objects to the interrogatory, in which event the reasons for objectionshall be stated in lieu of an answer;
(ii) state that the answers are to be signed by the person making them, and the objectionsare to be signed by the attorney making them;
(iii) identify by name and address the individual at the Office of the Attorney General onwhom answers and objections provided under this Subsection (2)(d) are to be served; and
(iv) prescribe the date on or before which these answers and objections are to be servedon the identified individual.
(3) The civil investigative demand may be served upon any person who is subject to thejurisdiction of any Utah court and shall be served upon the person in the manner provided forservice of a subpoena.
(4) (a) The documents submitted in response to a demand served under this section shallbe accompanied by an affidavit, in the form the demand designates, by the person, if a naturalperson, to whom the demand is directed or, if not a natural person, by a person having knowledgeof the facts and circumstances relating to the production.
(b) The affidavit shall state that all of the documentary material required by the demandand in the possession, custody, or control of the person to whom the demand is directed has ingood faith been produced and made available to the Office of the Attorney General.
(c) The affidavit shall identify any demanded documents that are not produced and statethe reason why each document was not produced.
(5) (a) The examination of any person pursuant to a demand for oral testimony servedunder this section shall be taken before an officer authorized to administer oaths or affirmationsby the laws of the United States or of the place where the examination is held. The officer beforewhom the testimony is to be taken shall put the witness on oath or affirmation and shallpersonally, or by someone acting under his direction and in his presence, record the testimony ofthe witness. If the testimony is taken stenographically, it shall be transcribed and the officerbefore whom the testimony is taken shall promptly transmit the transcript of the testimony to theOffice of the Attorney General.
(b) When taking oral testimony, all persons other than personnel from the attorneygeneral's office, the witness, counsel for the witness, and the officer before whom the testimony isto be taken shall be excluded from the place where the examination is held.
(c) The oral testimony of any person taken pursuant to a demand served under thissection shall be taken in the county where the person resides or transacts business or in any otherplace agreed upon by the attorney general and the person.
(d) When testimony is fully transcribed, the transcript shall be certified by the officerbefore whom the testimony was taken and submitted to the witness for examination and signing,in accordance with Rule 30(e) of the Utah Rules of Civil Procedure. A copy of the depositionshall be furnished free of charge to each witness upon his request.
(e) Any change in testimony recorded by nonstenographic means shall be made in themanner provided in Rule 30 of the Utah Rules of Civil Procedure for changing depositiontestimony recorded by nonstenographic means.
(f) Any person compelled to appear under a demand for oral testimony under this sectionmay be accompanied, represented, and advised by counsel. Counsel may advise the person, inconfidence, either upon the request of the person or upon counsel's own initiative, with respect toany question asked of the person. The person or counsel may object on the record to anyquestion, in whole or in part, and shall briefly state for the record the reason for the objection. Anobjection may properly be made, received, and entered upon the record when it is claimed thatthe person is entitled to refuse to answer the question on grounds of any constitutional or otherlegal right or privilege, including the privilege against self-incrimination. If the person refuses to
answer any question, the attorney general may petition the district court for an order compellingthe person to answer the question.
(g) If any person compelled to appear under a demand for oral testimony or otherinformation pursuant to this section refuses to answer any questions or produce information ongrounds of the privilege against self-incrimination, the testimony of that person may be compelledas in criminal cases.
(h) Any person appearing for oral examination pursuant to a demand served under thissection is entitled to the same fees and mileage which are paid to witnesses in the district courtsof the state of Utah. Witness fees and expenses shall be tendered and paid as in any civil action.
(6) The providing of any testimony, documents, or objects in response to a civilinvestigative demand issued pursuant to the provisions of this act shall be considered part of anofficial proceeding as defined in Section 76-8-501.
(7) (a) If a person fails to comply with the demand served upon him under this section,the attorney general may file in the district court of the county in which the person resides, isfound, or does business, a petition for an order compelling compliance with the demand. Noticeof hearing of the petition and a copy of the petition shall be served upon the person, who mayappear in opposition to the petition. If the court finds that the demand is proper, that there isreasonable cause to believe there has been a violation of this act, and that the information soughtor document or object demanded is relevant to the violation, it shall order the person to complywith the demand, subject to modifications the court may prescribe.
(b) (i) At any time before the return date specified in a demand or within 30 days after thedemand has been served, whichever period is shorter, the person who has been served may file apetition for an order modifying or setting aside the demand. This petition shall be filed in thedistrict court in the county of the person's residence, principal office, or place of business, or inthe district court in Salt Lake County. The petition shall specify each ground upon which thepetitioner relies in seeking the relief sought. The petition may be based upon any failure of thedemand to comply with the provisions of this section or upon any constitutional or other legalright or privilege of the petitioner. The petitioner shall serve notice of hearing of the petition anda copy of the petition upon the attorney general. The attorney general may submit an answer tothe petition within 30 days after receipt of the petition.
(ii) After hearing on the petition described in Subsection (7)(b)(i), and for good causeshown, the court may make any further order in the proceedings that justice requires to protect theperson from unreasonable annoyance, embarrassment, oppression, burden, or expense. At anyhearing pursuant to this section it is the attorney general's burden to establish that the demand isproper, that there is reasonable cause to believe that there has been a violation of this act, and thatthe information sought or document or object demanded is relevant to the violation.
(8) (a) Any procedure, testimony taken, or material produced under this section shall bekept confidential by the attorney general unless confidentiality is waived in writing by the personwho has testified, or produced documents or objects.
(b) Notwithstanding any other provision of this section, the attorney general may disclosetestimony or documents obtained under this section, without either the consent of the person fromwhom it was received or the person being investigated, to:
(i) any grand jury; and
(ii) officers and employees of federal or state law enforcement agencies, provided theperson from whom the information, documents, or objects were obtained is notified 20 days prior
to disclosure, and the federal or state law enforcement agency certifies that the information willbe:
(A) maintained in confidence, as required by Subsection (8)(a); and
(B) used only for official law enforcement purposes.
(9) Use of a civil investigative demand under this action precludes the invocation by theattorney general of Section 77-22-2.
Amended by Chapter 40, 1999 General Session