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H.B. 53 Enrolled

                 

UTAH ANTITRUST AMENDMENTS

                 
1999 GENERAL SESSION

                 
STATE OF UTAH

                 
Sponsor: Gordon E. Snow

                  Patrice M. Arent




                  AN ACT RELATING TO THE CRIMINAL CODE; AMENDING CERTAIN PROVISIONS
                  REGARDING CIVIL ANTITRUST INVESTIGATIONS BY THE ATTORNEY GENERAL TO
                  INCLUDE PROCEDURES REGARDING WRITTEN INTERROGATORIES.
                  This act affects sections of Utah Code Annotated 1953 as follows:
                  AMENDS:
                      76-10-917, as last amended by Chapter 99, Laws of Utah 1991
                  Be it enacted by the Legislature of the state of Utah:
                      Section 1. Section 76-10-917 is amended to read:
                       76-10-917. Civil antitrust investigations -- Demand for documentary material or
                  information -- Production of documents response to written interrogatories -- Oral
                  examination -- Judicial order for compliance -- Confidentiality -- Subpoenas precluded.
                      (1) When the attorney general has reasonable cause to believe that any person may be in
                  possession, custody, or control of any information relevant to a civil antitrust investigation, he
                  may, prior to the commencement of a civil action thereon, issue and cause to be served upon that
                  person a written civil investigative demand requesting that person to:
                      (a) produce [such] the documentary material for inspection, copying, or reproduction by
                  the state 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
                      [(c)] (d) furnish any combination of these.
                      (2) (a) Each [such] demand shall state:
                      (i) The nature of the activities under investigation, constituting the alleged antitrust
                  violation, 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 in
                  a civil or criminal proceeding;
                      (iv) that if the recipient does not comply with the demand the Office of the Attorney General
                  may compel compliance by appearance, upon reasonable notice to the recipient, before the district
                  court in the judicial district wherein the recipient resides or does business and only upon 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, or within
                  30 days, whichever period is shorter, to seek a court order determining the validity of the demand;
                  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 and
                  certainty as to permit the material to be fairly identified;
                      (ii) prescribe return dates that provide a reasonable period of time within which the material
                  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 be
                  made 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 the examination;
                  and
                      (iii) state that the recording or the transcript of such examination shall be submitted to and
                  maintained 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 and under
                  oath, unless the person objects to the interrogatory, in which event the reasons for objection shall be
                  stated in lieu of an answer;
                      (ii) state that the answers are to be signed by the person making them, and the objections are

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                  to be signed by the attorney making them;
                      (iii) identify by name and address the individual at the Office of the Attorney General on
                  whom 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 served on
                  the identified individual.
                      (3) The civil investigative demand may be served upon any person who is subject to the
                  jurisdiction of any Utah court and shall be served upon the person in the manner provided for service
                  of a subpoena.
                      (4) (a) The documents submitted in response to a demand served under this section shall be
                  accompanied by an affidavit, in [such] the 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 having
                  knowledge of the facts and circumstances relating to the production.
                      (b) The affidavit shall state 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 in good 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 state the
                  reason why each document was not produced.
                      (5) (a) 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 or 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. If the
                  testimony is taken stenographically, it shall be transcribed and the officer before whom the testimony
                  is taken shall promptly transmit the transcript of the testimony to the Office of the Attorney General.
                      (b) When taking oral testimony, all persons other than personnel from the attorney general's
                  office, the witness, counsel for the witness, and the officer before whom the testimony is to 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 this section

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                  shall be taken in the county where the person resides or transacts business or in any other place
                  agreed upon by the attorney general and the person.
                      (d) When testimony is fully transcribed, the transcript shall be certified by the officer before
                  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 deposition shall be
                  furnished free of charge to each [such] witness upon his request.
                      (e) Any change in testimony recorded by nonstenographic means shall be made in the
                  manner provided in Rule 30 of the Utah Rules of Civil Procedure for changing deposition testimony
                  recorded by nonstenographic means.
                      (f) Any person compelled to appear under a demand for oral testimony under this section
                  may be accompanied, represented, and advised by counsel. Counsel may advise the person, in
                  confidence, either upon the request of the person or upon counsel's own initiative, with respect to
                  any question asked of the person. The 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 the 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. If the person refuses to answer any
                  question, the attorney general may petition the district court for an order compelling [such] the
                  person to answer the question.
                      (g) If any person compelled to appear under a demand for oral testimony or other
                  information pursuant to this section refuses to answer any questions or produce information on
                  grounds of the privilege against self-incrimination, the testimony of [such] that person may be
                  compelled as in criminal cases.
                      (h) Any person appearing for oral examination pursuant to a demand served under this
                  section is entitled to the same fees and mileage which are paid to witnesses in the district courts of
                  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 civil investigative
                  demand issued pursuant to the provisions of this act shall be considered part of an official proceeding

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                  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, is found, or
                  does business, a petition for an order compelling compliance with the demand. Notice of hearing
                  of the petition and a copy of the petition shall be served upon the person, who may appear in
                  opposition to the petition. If the court finds that the demand is proper, that there is reasonable cause
                  to believe there has been a violation of this act, and that the information sought or document or
                  object demanded is relevant to the violation, it shall order the person to comply with the demand,
                  subject to [such] modifications [as] the court may prescribe.
                      (b) (i) At any time before the return date specified in a demand or within 30 days after the
                  demand has been served, whichever period is shorter, the person who has been served may file a
                  petition for an order modifying or setting aside the demand. This petition shall be filed in the district
                  court in the county of the person's residence, principal office, or place of business, or in the district
                  court in Salt Lake County. The petition shall specify each ground upon which the petitioner relies
                  in seeking the relief sought. The petition may be based upon any failure of the demand to comply
                  with the provisions of this section or upon any constitutional or other legal right or privilege of the
                  petitioner. The petitioner shall serve notice of hearing of the petition and a copy of the petition upon
                  the attorney general. The attorney general may submit an answer to the petition within 30 days after
                  receipt of the petition.
                      (ii) After hearing on the petition described in Subsection (7)(b)(i), and for good cause shown,
                  the court may make any further order in the proceedings that justice requires to protect the person
                  from unreasonable annoyance, embarrassment, oppression, burden, or expense. At any hearing
                  pursuant to this section it is the attorney general's burden to establish that the demand is proper, that
                  there is reasonable cause to believe that there has been a violation of this act, and that the
                  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 be kept
                  confidential by the attorney general unless confidentiality is waived in writing by the person who has
                  testified, or produced documents or objects.

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                      (b) Notwithstanding any other provision of this section, the attorney general may disclose
                  testimony or documents obtained under this section, without either the consent of the person from
                  whom 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 the person
                  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 will be:
                      (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 the
                  attorney general of Section 77-22-2 .

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