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U.S. Code as of:
01/19/04
Section 1312. Civil investigative demands
(a) Issuance; service; production of material; testimony
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 any 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) 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 similar transaction, which, if consummated,
may result in an antitrust violation,
which are under investigation and the provision of law applicable
thereto;
(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.
Any such demand which is an express demand for any product of
discovery shall not be returned 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 disclosure restrictions except trial
preparation materials
(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) 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 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 persons
(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) Proof of service
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) Sworn certificates
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) Interrogatories
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) 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 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 (!1) 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.
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