H.B. 53

1

UTAH ANTITRUST AMENDMENTS
2 1999 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Gordon E. Snow
5 AN ACT RELATING TO CRIMINAL CODE; AMENDING CERTAIN PROVISIONS
6 REGARDING CIVIL ANTITRUST INVESTIGATIONS BY THE ATTORNEY GENERAL TO
7 INCLUDE PROCEDURES REGARDING WRITTEN INTERROGATORIES.
8 This act affects sections of Utah Code Annotated 1953 as follows:
9 AMENDS:
10 76-10-917, as last amended by Chapter 99, Laws of Utah 1991
11 Be it enacted by the Legislature of the state of Utah:
12 Section 1. Section 76-10-917 is amended to read:
13 76-10-917. Civil antitrust investigations -- Demand for documentary material or
14 information -- Production of documents -- Oral examination -- Judicial order for compliance
15 -- Confidentiality -- Subpoenas precluded.
16 (1) When the attorney general has reasonable cause to believe that any person may be in
17 possession, custody, or control of any information relevant to a civil antitrust investigation, he
18 may, prior to the commencement of a civil action thereon, issue and cause to be served upon that
19 person a written civil investigative demand requesting that person to:
20 (a) produce [such] the documentary material for inspection, copying, or reproduction by
21 the state where the documents are located or produced;
22 (b) give oral testimony under oath, concerning the subject of the investigation;
23 (c) respond to written interrogatories; or
24 [(c)] (d) furnish any combination of these.
25 (2) (a) Each [such] demand shall state:
26 (i) The nature of the activities under investigation, constituting the alleged antitrust
27 violation, which may result in a violation of this act and the applicable provision of law;

28 (ii) that the recipient is entitled to counsel;
29 (iii) that the documents, materials, or testimony in response to the demand may be used
30 in a civil or criminal proceeding;
31 (iv) that if the recipient does not comply with the demand the Office of the Attorney
32 General may compel compliance by appearance, upon reasonable notice to the recipient, before
33 the district court in the judicial district wherein the recipient resides or does business and only
34 upon a showing before that district court that the requirements of Subsection (7) have been met;
35 (v) that the recipient has the right at any time before the return date of the demand, or
36 within 30 days, whichever period is shorter, to seek a court order determining the validity of the
37 demand; and
38 (vi) that at any time during the proceeding the person may assert any applicable privilege.
39 (b) If the demand is for production of documentary material, it shall also:
40 (i) describe the documentary material to be produced with sufficient definiteness and
41 certainty as to permit the material to be fairly identified;
42 (ii) prescribe return dates that provide a reasonable period of time within which the
43 material demanded may be assembled and made available for inspection and reproduction; and
44 (iii) identify the individual at the attorney general's office to whom the material shall be
45 made available.
46 (c) If the demand is for the giving of oral testimony, it shall also:
47 (i) prescribe the date, time, and place at which oral testimony shall be commenced;
48 (ii) state that a member of the attorney general's office staff shall conduct the examination;
49 and
50 (iii) state that the recording or the transcript of such examination shall be submitted to and
51 maintained by the Office of the Attorney General.
52 (d) If the demand is for responses to written interrogatories, it shall also:
53 (i) state that each interrogatory shall be answered separately and fully in writing and under
54 oath, unless the person objects to the interrogatory, in which event the reasons for objection shall
55 be stated in lieu of an answer;
56 (ii) state that the answers are to be signed by the person making them, and the objections
57 are to be signed by the attorney making them;
58 (iii) identify by name and address the individual at the Office of the Attorney General on

59 whom answers and objections provided under this Subsection (2)(d) are to be served; and
60 (iv) prescribe the date on or before which these answers and objections are to be served
61 on the identified individual.
62 (3) The civil investigative demand may be served upon any person who is subject to the
63 jurisdiction of any Utah court and shall be served upon the person in the manner provided for
64 service of a subpoena.
65 (4) (a) The documents submitted in response to a demand served under this section shall
66 be accompanied by an affidavit, in [such] the form [as] the demand designates, by the person, if
67 a natural person, to whom the demand is directed or, if not a natural person, by a person having
68 knowledge of the facts and circumstances relating to the production.
69 (b) The affidavit shall state that all of the documentary material required by the demand
70 and in the possession, custody, or control of the person to whom the demand is directed has in
71 good faith been produced and made available to the Office of the Attorney General.
72 (c) The affidavit shall identify any demanded documents that are not produced and state
73 the reason why each document was not produced.
74 (5) (a) The examination of any person pursuant to a demand for oral testimony served
75 under this section shall be taken before an officer authorized to administer oaths or affirmations
76 by the laws of the United States or of the place where the examination is held. The officer before
77 whom the testimony is to be taken shall put the witness on oath or affirmation and shall personally,
78 or by someone acting under his direction and in his presence, record the testimony of the witness.
79 If the testimony is taken stenographically, it shall be transcribed and the officer before whom the
80 testimony is taken shall promptly transmit the transcript of the testimony to the Office of the
81 Attorney General.
82 (b) When taking oral testimony, all persons other than personnel from the attorney
83 general's office, the witness, counsel for the witness, and the officer before whom the testimony
84 is to be taken shall be excluded from the place where the examination is held.
85 (c) The oral testimony of any person taken pursuant to a demand served under this section
86 shall be taken in the county where the person resides or transacts business or in any other place
87 agreed upon by the attorney general and the person.
88 (d) When testimony is fully transcribed, the transcript shall be certified by the officer
89 before whom the testimony was taken and submitted to the witness for examination and signing,

90 in accordance with Rule 30(e) of the Utah Rules of Civil Procedure. A copy of the deposition shall
91 be furnished free of charge to each [such] witness upon his request.
92 (e) Any change in testimony recorded by nonstenographic means shall be made in the
93 manner provided in Rule 30 of the Utah Rules of Civil Procedure for changing deposition
94 testimony recorded by nonstenographic means.
95 (f) Any person compelled to appear under a demand for oral testimony under this section
96 may be accompanied, represented, and advised by counsel. Counsel may advise the person, in
97 confidence, either upon the request of the person or upon counsel's own initiative, with respect to
98 any question asked of the person. The person or counsel may object on the record to any question,
99 in whole or in part, and shall briefly state for the record the reason for the objection. An objection
100 may properly be made, received, and entered upon the record when it is claimed that the person
101 is entitled to refuse to answer the question on grounds of any constitutional or other legal right or
102 privilege, including the privilege against self-incrimination. If the person refuses to answer any
103 question, the attorney general may petition the district court for an order compelling [such] the
104 person to answer the question.
105 (g) If any person compelled to appear under a demand for oral testimony or other
106 information pursuant to this section refuses to answer any questions or produce information on
107 grounds of the privilege against self-incrimination, the testimony of [such] that person may be
108 compelled as in criminal cases.
109 (h) Any person appearing for oral examination pursuant to a demand served under this
110 section is entitled to the same fees and mileage which are paid to witnesses in the district courts
111 of the state of Utah. Witness fees and expenses shall be tendered and paid as in any civil action.
112 (6) The providing of any testimony, documents, or objects in response to a civil
113 investigative demand issued pursuant to the provisions of this act shall be considered part of an
114 official proceeding as defined in Section 76-8-501 .
115 (7) (a) If a person fails to comply with the demand served upon him under this section,
116 the attorney general may file in the district court of the county in which the person resides, is
117 found, or does business, a petition for an order compelling compliance with the demand. Notice
118 of hearing of the petition and a copy of the petition shall be served upon the person, who may
119 appear in opposition to the petition. If the court finds that the demand is proper, that there is
120 reasonable cause to believe there has been a violation of this act, and that the information sought

121 or document or object demanded is relevant to the violation, it shall order the person to comply
122 with the demand, subject to [such] modifications [as] the court may prescribe.
123 (b) (i) At any time before the return date specified in a demand or within 30 days after the
124 demand has been served, whichever period is shorter, the person who has been served may file a
125 petition for an order modifying or setting aside the demand. This petition shall be filed in the
126 district court in the county of the person's residence, principal office, or place of business, or in the
127 district court in Salt Lake County. The petition shall specify each ground upon which the
128 petitioner relies in seeking the relief sought. The petition may be based upon any failure of the
129 demand to comply with the provisions of this section or upon any constitutional or other legal right
130 or privilege of the petitioner. The petitioner shall serve notice of hearing of the petition and a copy
131 of the petition upon the attorney general. The attorney general may submit an answer to the
132 petition within 30 days after receipt of the petition.
133 (ii) After hearing on the petition described in Subsection (7)(b)(i), and for good cause
134 shown, the court may make any further order in the proceedings that justice requires to protect the
135 person from unreasonable annoyance, embarrassment, oppression, burden, or expense. At any
136 hearing pursuant to this section it is the attorney general's burden to establish that the demand is
137 proper, that there is reasonable cause to believe that there has been a violation of this act, and that
138 the information sought or document or object demanded is relevant to the violation.
139 (8) (a) Any procedure, testimony taken, or material produced under this section shall be
140 kept confidential by the attorney general unless confidentiality is waived in writing by the person
141 who has testified, or produced documents or objects.
142 (b) Notwithstanding any other provision of this section, the attorney general may disclose
143 testimony or documents obtained under this section, without either the consent of the person from
144 whom it was received or the person being investigated, to:
145 (i) any grand jury; and
146 (ii) officers and employees of federal or state law enforcement agencies, provided the
147 person from whom the information, documents, or objects were obtained is notified 20 days prior
148 to disclosure, and the federal or state law enforcement agency certifies that the information will
149 be:
150 (A) maintained in confidence, as required by Subsection (8)(a); and
151 (B) used only for official law enforcement purposes.

152 (9) Use of a civil investigative demand under this action precludes the invocation by the
153 attorney general of Section 77-22-2 .




Legislative Review Note
as of 12-28-98 10:41 AM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel