§1312 — Title 15 Commerce and Trade | U.S. Code

Summary

The Attorney General or the Assistant Attorney General who runs the Antitrust Division can, before starting a case, send a written order called a civil investigative demand. That order can make a person bring documents, answer written questions, give oral testimony, or do any mix of those things if the materials or information are relevant to an antitrust investigation. The order must explain the conduct being investigated (or merger activity that might cause a problem). If it asks for documents, it must describe the kinds of documents, give a reasonable date to turn them in, and name the custodian who will receive them. If it asks for written answers, it must state the questions, give a deadline, and name the custodian. If it asks for oral testimony, it must set a date, time, and place, and name the investigator who will conduct the interview and the custodian for the transcript. The law limits what can be forced. Nothing must be produced if it would be protected under grand jury subpoena rules or appropriate federal civil discovery standards. If the demand asks for a product of discovery, that demand can override other conflicting rules, but giving that material does not waive other privileges. Demands can be served by an antitrust investigator or a U.S. marshal, and service rules for companies and people include personal delivery or registered mail. The person serving the demand must file a sworn return saying how service was made. Documents and written answers must be sent under a sworn certificate saying all responsive material in that person’s possession, custody, or control was produced. Oral testimony is taken under oath, recorded and transcribed, and the witness may review and sign the transcript or note changes; if not signed within 30 days the officer will note that and sign. A witness may have counsel, may object on the record (including on the ground of self‑incrimination), and if a witness refuses to answer an investigator can ask a U.S. district court under section 1314 to compel an answer; claims of self‑incrimination may be handled under Part V of title 18. Witnesses get the same fees and mileage as in U.S. district courts.

Title 15, §1312

Commerce and Trade — Source: USLM XML via OLRC

(a)Whenever the Attorney General, or the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice, has reason to believe that any person may be in possession, custody, or control of any documentary material, or may have any information, relevant to a civil antitrust investigation or, with respect to the International Antitrust Enforcement 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 institution of a civil or criminal proceeding by the United States thereon, issue in writing, and cause to be served upon such person, a civil investigative demand requiring such person to produce such documentary material for inspection and copying or reproduction, to answer in writing written interrogatories, to give oral testimony concerning documentary material or information, or to furnish any combination of such material, answers, or testimony. Whenever a civil investigative demand is an express demand 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 section, a copy of such demand upon the person from whom the discovery was obtained and notify the person to whom such demand is issued of the date on which such copy was served.

(b)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 similar transaction, which, if consummated, may result in an antitrust violation,

(2)if it is a demand for production of documentary material—

(A)describe the class or classes of documentary 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 inspection 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 certainty the written interrogatories to be answered;

(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 testimony—

(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 custodian to whom the transcript of such examination shall be submitted.

(c)(1)No such demand shall 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 subpenas or subpenas duces tecum issued by a court of the United States in aid of a grand jury investigation, or

(B)the standards applicable to discovery requests under the Federal 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 chapter.

(2)Any such demand which is an express demand for any product of discovery supersedes any inconsistent order, rule, or provision of law (other than this chapter) 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, including without limitation any right or privilege which may be invoked to resist discovery of trial preparation materials, to which the person making such disclosure may be entitled.

(d)(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 11 So in original. Probably should be capitalized. 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)(1)Service of any such demand or of any petition filed under section 1314 of this title may be made upon a partnership, corporation, association, 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 business.

(2)Service of any such demand or of any petition 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)A verified return by the individual serving any such demand or petition 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.

(g)The production of documentary material in response to a demand served pursuant to this section shall be made 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 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)Each interrogatory in a demand served pursuant to this section shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for the objection 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 person or persons responsible for answering each interrogatory, 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 submitted.

(i)(1)The examination of any person pursuant to a demand for oral testimony served under this section shall be taken before an officer authorized 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 personally, or by someone acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically and 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 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 testimony is to be taken, and any stenographer taking such testimony. The provisions of section 30 22 See References in Text note below. of this title shall not apply to such examinations.

(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 investigator conducting the examination and such person.

(4)When the testimony is fully transcribed, the antitrust investigator or the officer shall afford 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 desires to make shall be entered and identified upon the transcript by the officer or the antitrust 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 thirty days of his being afforded a reasonable opportunity to examine it, the officer 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 therefor, the antitrust investigator shall furnish a copy of the transcript to the witness only, except that the Assistant Attorney General in charge of the Antitrust Division may for good cause limit such witness to inspection of the official transcript of his testimony.

(7)(A)Any person compelled to appear under a demand for oral testimony pursuant to this section may be accompanied, represented, and advised by counsel. Counsel may advise such person, in confidence, either upon the request of such person or upon counsel’s own initiative, 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 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 privilege, including the privilege against self-incrimination. Such person shall not otherwise object to or refuse to answer any question, and shall not by himself or through counsel otherwise interrupt the oral examination. If such person refuses to answer any question, the antitrust 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 question on grounds of the privilege against self-incrimination, 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.

Notes & Related Subsidiaries

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 principally 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

Assistance Act of 1994, an investigation authorized by section 3 of such Act” after “investigation” and “by the United States” after “proceeding”. 1980—Subsec. (a). Pub. L. 96–349, § 2(b)(1), inserted provision for service and notice of a civil investigative demand for any product of discovery. Subsec. (b). Pub. L. 96–349, § 2(b)(2), inserted provision respecting time demand for product of discovery is returnable. Subsec. (c). Pub. L. 96–349, § 2(b)(3), designated existing 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 investigation” before “may be in possession”, inserted “or may have any information” after “any documentary material”, and inserted provision requiring the production of documentary material for inspection or reproduction, answers in writing to written interrogatories, the giving of oral testimony concerning documentary material or information, and the furnishing of any combination of such material, answers, or testimony. 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) substituted provisions relating to written interrogatories for provisions relating to prescription of a return date for demanded material, and in par. (4), substituted provisions relating to oral testimony for provisions requiring a demand to identify the custodian to whom demanded 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 standards 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 provisions as par. (1) and added par. (2). Subsec. (e). Pub. L. 94–435 redesignated existing provisions 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 AmendmentAmendment 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.

§1312 Civil investigative demands

Summary

Title 15, §1312

Notes & Related Subsidiaries

Editorial Notes

References in Text

Enforcement

Short Title

Short Title

Amendments

Enforcement

Statutory Notes and Related Subsidiaries

Effective Date

Citations & Metadata