[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 15USC1312]
TITLE 15--COMMERCE AND TRADE
CHAPTER 34--ANTITRUST CIVIL PROCESS
Sec. 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.
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\1\ See References in Text note below.
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(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.
(Pub. L. 87-664, Sec. 3, Sept. 19, 1962, 76 Stat. 548; Pub. L. 94-435,
title I, Sec. 102, Sept. 30, 1976, 90 Stat. 1384; Pub. L. 96-349,
Sec. 2(b)(1)-(3), Sept. 12, 1980, 94 Stat. 1154; Pub. L. 103-438,
Sec. 3(e)(1)(B), Nov. 2, 1994, 108 Stat. 4598.)
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 (Sec. 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, which is classified
generally 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, Sec. 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, Sec. 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, Sec. 2(b)(2), inserted provision
respecting time demand for product of discovery is returnable.
Subsec. (c). Pub. L. 96-349, Sec. 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).
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.
Section Referred to in Other Sections
This section is referred to in section
