Documentary material, requirement to produce, demand for, how made,how served--returns, how verified--failure to comply, effect of.
416.091. 1. Whenever the attorney general has reason tobelieve that a person under investigation may be in possession,custody, or control of any books, documents, records, writings ortangible things, hereinafter referred to as "documentarymaterial", relevant to a civil investigation of a violation ofsection 416.031, he may, prior to the institution of a civil orcriminal proceeding thereon, issue in writing, and cause to beserved upon such person, a civil investigative demand requiringsuch person to produce such documentary material for examination.
2. Each such demand shall:
(1) State the nature of the conduct constituting the allegedantitrust violation which is under investigation and theprovision of law applicable thereto;
(2) Describe the class or classes of documentary material tobe produced thereunder with such definiteness and certainty as topermit such documentary material to be fairly identified;
(3) Prescribe a return date which will provide a reasonableperiod of time within which the documentary material so demandedmay be assembled and made available for inspection and copying orreproduction; and
(4) Identify the custodian to whom such documentary materialshall be made available.
3. No such demand shall:
(1) Contain any requirement which would be held to beunreasonable if contained in a subpoena duces tecum issued by acourt of this state in aid of a grand jury investigation of suchalleged violation; or
(2) Require the production of any documentary material whichwould be privileged from disclosure if demanded by a subpoenaduces tecum issued by a court of this state in aid of a grandjury investigation of such alleged violation.
4. Service of a demand by the attorney general as providedherein may be made by:
(1) Delivery of a duly executed copy thereof to the place ofbusiness of the person to be served in this state, or if theperson has no place of business in this state, to his principalplace of business or to the residence of the person*** to be served;or
(2) Mailing by certified mail, return receipt requested andsigned by the person to whom service is directed, a duly executedcopy thereof addressed to the person to be served at his place ofbusiness in this state, or if the person has no place of businessin this state, to his principal place of business or to theresidence of the person to be served.
5. A verified return by the individual serving any suchdemand or petition setting forth the manner of such service shallbe proof of such service. In the case of service by certifiedmail, such return shall be accompanied by the return post officereceipt of delivery of such demand signed by the person to whomservice is directed.
6. The attorney general shall designate a member of hisstaff as document custodian.
7. Any person upon whom any civil investigative demandissued under this section has been duly served shall make suchdocumentary material available for inspection and copying orreproduction to the custodian designated therein at the principalplace of business of such person or at such other place as suchcustodian and such person thereafter may agree, and prescribe inwriting or as the court may direct on the return date specifiedin such demand or on such latter date as such custodian mayprescribe in writing. Such person may, upon written agreementbetween such person and the custodian, substitute for copies ofall or any part of such documentary material originals thereof.
8. The custodian to whom any documentary material is sodelivered shall take physical possession thereof, and shall beresponsible for the use made thereof and for the return thereofpursuant to this section. The custodian may cause thepreparation of such copies of such documentary material as may berequired for official use. While in the possession of thecustodian, no documentary material so produced or copies thereofshall be available for examination, without the consent of theperson who produced such documentary material, by any individualother than the attorney general or a duly authorized member ofhis staff. Under such reasonable terms and conditions as theattorney general shall prescribe, documentary material while inthe possession of the custodian shall be available forexamination by the person who produced such material or any dulyauthorized representative of such person.
9. Whenever any attorney has been designated to appear onbehalf of the state, before any court or grand jury in any caseor proceeding involving any alleged antitrust violation, thecustodian may deliver to such attorney such documentary materialin the possession of the custodian as such attorney determines tobe required for use in the presentation of such case orproceeding on behalf of the state. Upon the conclusion of anysuch case or proceeding, such attorney shall return to thecustodian any documentary material so withdrawn and copiesthereof which have* not passed into the control of such court orgrand jury through the introduction thereof into the record ofsuch case or proceeding.
10. Upon the completion of the investigation for which anydocumentary material was produced under this section and any caseor proceeding arising from such investigation, the custodianshall return to the person who produced such documentary materialall such documentary material and copies thereof which have* notpassed into the control of any court or grand jury through theintroduction thereof into the record of such case or proceeding.
11. When any documentary material has been produced by anyperson under this section for use in any antitrust investigation,and no such case or proceeding arising therefrom has beeninstituted within a reasonable time after completion of theexamination and analysis of all evidence assembled in the courseof such investigation, such person shall be entitled, uponwritten demand made upon the attorney general, to the return ofall documentary material and copies thereof so produced by suchperson.
12. In the event of the death, disability, or separationfrom service of the custodian of any documentary materialproduced under any demand issued under this section, or theofficial relief of such custodian from the responsibility for thecustody and control of such documentary material, the attorneygeneral shall promptly designate another official to serve ascustodian thereof, and transmit notice in writing to the personwho produced such documentary material as to the identity andaddress of the successor so designated. Any successor sodesignated shall have with regard** to such materials all dutiesand responsibilities imposed by this section upon his predecessorin office with regard thereto, except that he shall not be heldresponsible for any default or dereliction which occurred beforehis designation as custodian.
13. Whenever any person fails to comply with any civilinvestigative demand duly served upon him under this section orwhenever satisfactory copying or reproduction of any suchmaterial cannot be done and such person refuses to surrender suchdocumentary material, the attorney general, through such officersor attorneys as he may designate, may file, in the circuit courtof the state for the circuit in which such person*** resides, isfound, or transacts business, and serve upon such person apetition for an order of such court for the enforcement of thissection, except that if such person transacts business in morethan one such circuit such petition may be filed in any suchcircuit, or in such other circuit in which such person transactsbusiness as may be agreed upon by the parties to such petition.
14. Within twenty days after the service of any such demandupon any person***, or at any time specified in the demand,whichever period is shorter, such person may file, in the circuitcourt for the circuit within which such person resides, is found,or transacts business in this state, or if such person does notreside in or transact business in this state in the circuit courtwithin which the office of the custodian is situated and serveupon such custodian a petition for an order of such courtmodifying or setting aside such demand. The time allowed forcompliance with the demand in whole or in part as deemed properand ordered by the court shall not run during the pendency ofsuch petition in the court. Such petition shall specify eachground upon which the petitioner relies in seeking such relief,and may be based upon any failure of such demand to comply withthe provisions of this section or upon any constitutional orother legal right or privilege of such person.
15. At any time during which any custodian is in custody orcontrol of any documentary material delivered by any person incompliance with any such demand, such person may file in thecircuit court for the circuit within which the office of suchcustodian is situated, and serve upon such custodian a petitionfor an order of such court requiring the performance by suchcustodian of any duty imposed upon him by this section.
16. Whenever any petition is filed in any circuit courtunder this section, such court shall have jurisdiction to hearand determine the matter so presented, and to enter such order ororders as may be required to carry into effect the provisions ofthis section. Any final order so entered shall be subject toappeal by writ of prohibition. Any disobedience of any finalorder entered under this section by any court shall be punishedas a contempt thereof.
Documentary material, requirement to produce, demand for, how made,how served--returns, how verified--failure to comply, effect of.
416.091. 1. Whenever the attorney general has reason tobelieve that a person under investigation may be in possession,custody, or control of any books, documents, records, writings ortangible things, hereinafter referred to as "documentarymaterial", relevant to a civil investigation of a violation ofsection 416.031, he may, prior to the institution of a civil orcriminal proceeding thereon, issue in writing, and cause to beserved upon such person, a civil investigative demand requiringsuch person to produce such documentary material for examination.
2. Each such demand shall:
(1) State the nature of the conduct constituting the allegedantitrust violation which is under investigation and theprovision of law applicable thereto;
(2) Describe the class or classes of documentary material tobe produced thereunder with such definiteness and certainty as topermit such documentary material to be fairly identified;
(3) Prescribe a return date which will provide a reasonableperiod of time within which the documentary material so demandedmay be assembled and made available for inspection and copying orreproduction; and
(4) Identify the custodian to whom such documentary materialshall be made available.
3. No such demand shall:
(1) Contain any requirement which would be held to beunreasonable if contained in a subpoena duces tecum issued by acourt of this state in aid of a grand jury investigation of suchalleged violation; or
(2) Require the production of any documentary material whichwould be privileged from disclosure if demanded by a subpoenaduces tecum issued by a court of this state in aid of a grandjury investigation of such alleged violation.
4. Service of a demand by the attorney general as providedherein may be made by:
(1) Delivery of a duly executed copy thereof to the place ofbusiness of the person to be served in this state, or if theperson has no place of business in this state, to his principalplace of business or to the residence of the person*** to be served;or
(2) Mailing by certified mail, return receipt requested andsigned by the person to whom service is directed, a duly executedcopy thereof addressed to the person to be served at his place ofbusiness in this state, or if the person has no place of businessin this state, to his principal place of business or to theresidence of the person to be served.
5. A verified return by the individual serving any suchdemand or petition setting forth the manner of such service shallbe proof of such service. In the case of service by certifiedmail, such return shall be accompanied by the return post officereceipt of delivery of such demand signed by the person to whomservice is directed.
6. The attorney general shall designate a member of hisstaff as document custodian.
7. Any person upon whom any civil investigative demandissued under this section has been duly served shall make suchdocumentary material available for inspection and copying orreproduction to the custodian designated therein at the principalplace of business of such person or at such other place as suchcustodian and such person thereafter may agree, and prescribe inwriting or as the court may direct on the return date specifiedin such demand or on such latter date as such custodian mayprescribe in writing. Such person may, upon written agreementbetween such person and the custodian, substitute for copies ofall or any part of such documentary material originals thereof.
8. The custodian to whom any documentary material is sodelivered shall take physical possession thereof, and shall beresponsible for the use made thereof and for the return thereofpursuant to this section. The custodian may cause thepreparation of such copies of such documentary material as may berequired for official use. While in the possession of thecustodian, no documentary material so produced or copies thereofshall be available for examination, without the consent of theperson who produced such documentary material, by any individualother than the attorney general or a duly authorized member ofhis staff. Under such reasonable terms and conditions as theattorney general shall prescribe, documentary material while inthe possession of the custodian shall be available forexamination by the person who produced such material or any dulyauthorized representative of such person.
9. Whenever any attorney has been designated to appear onbehalf of the state, before any court or grand jury in any caseor proceeding involving any alleged antitrust violation, thecustodian may deliver to such attorney such documentary materialin the possession of the custodian as such attorney determines tobe required for use in the presentation of such case orproceeding on behalf of the state. Upon the conclusion of anysuch case or proceeding, such attorney shall return to thecustodian any documentary material so withdrawn and copiesthereof which have* not passed into the control of such court orgrand jury through the introduction thereof into the record ofsuch case or proceeding.
10. Upon the completion of the investigation for which anydocumentary material was produced under this section and any caseor proceeding arising from such investigation, the custodianshall return to the person who produced such documentary materialall such documentary material and copies thereof which have* notpassed into the control of any court or grand jury through theintroduction thereof into the record of such case or proceeding.
11. When any documentary material has been produced by anyperson under this section for use in any antitrust investigation,and no such case or proceeding arising therefrom has beeninstituted within a reasonable time after completion of theexamination and analysis of all evidence assembled in the courseof such investigation, such person shall be entitled, uponwritten demand made upon the attorney general, to the return ofall documentary material and copies thereof so produced by suchperson.
12. In the event of the death, disability, or separationfrom service of the custodian of any documentary materialproduced under any demand issued under this section, or theofficial relief of such custodian from the responsibility for thecustody and control of such documentary material, the attorneygeneral shall promptly designate another official to serve ascustodian thereof, and transmit notice in writing to the personwho produced such documentary material as to the identity andaddress of the successor so designated. Any successor sodesignated shall have with regard** to such materials all dutiesand responsibilities imposed by this section upon his predecessorin office with regard thereto, except that he shall not be heldresponsible for any default or dereliction which occurred beforehis designation as custodian.
13. Whenever any person fails to comply with any civilinvestigative demand duly served upon him under this section orwhenever satisfactory copying or reproduction of any suchmaterial cannot be done and such person refuses to surrender suchdocumentary material, the attorney general, through such officersor attorneys as he may designate, may file, in the circuit courtof the state for the circuit in which such person*** resides, isfound, or transacts business, and serve upon such person apetition for an order of such court for the enforcement of thissection, except that if such person transacts business in morethan one such circuit such petition may be filed in any suchcircuit, or in such other circuit in which such person transactsbusiness as may be agreed upon by the parties to such petition.
14. Within twenty days after the service of any such demandupon any person***, or at any time specified in the demand,whichever period is shorter, such person may file, in the circuitcourt for the circuit within which such person resides, is found,or transacts business in this state, or if such person does notreside in or transact business in this state in the circuit courtwithin which the office of the custodian is situated and serveupon such custodian a petition for an order of such courtmodifying or setting aside such demand. The time allowed forcompliance with the demand in whole or in part as deemed properand ordered by the court shall not run during the pendency ofsuch petition in the court. Such petition shall specify eachground upon which the petitioner relies in seeking such relief,and may be based upon any failure of such demand to comply withthe provisions of this section or upon any constitutional orother legal right or privilege of such person.
15. At any time during which any custodian is in custody orcontrol of any documentary material delivered by any person incompliance with any such demand, such person may file in thecircuit court for the circuit within which the office of suchcustodian is situated, and serve upon such custodian a petitionfor an order of such court requiring the performance by suchcustodian of any duty imposed upon him by this section.
16. Whenever any petition is filed in any circuit courtunder this section, such court shall have jurisdiction to hearand determine the matter so presented, and to enter such order ororders as may be required to carry into effect the provisions ofthis section. Any final order so entered shall be subject toappeal by writ of prohibition. Any disobedience of any finalorder entered under this section by any court shall be punishedas a contempt thereof.
Documentary material, requirement to produce, demand for, how made,how served--returns, how verified--failure to comply, effect of.
416.091. 1. Whenever the attorney general has reason tobelieve that a person under investigation may be in possession,custody, or control of any books, documents, records, writings ortangible things, hereinafter referred to as "documentarymaterial", relevant to a civil investigation of a violation ofsection 416.031, he may, prior to the institution of a civil orcriminal proceeding thereon, issue in writing, and cause to beserved upon such person, a civil investigative demand requiringsuch person to produce such documentary material for examination.
2. Each such demand shall:
(1) State the nature of the conduct constituting the allegedantitrust violation which is under investigation and theprovision of law applicable thereto;
(2) Describe the class or classes of documentary material tobe produced thereunder with such definiteness and certainty as topermit such documentary material to be fairly identified;
(3) Prescribe a return date which will provide a reasonableperiod of time within which the documentary material so demandedmay be assembled and made available for inspection and copying orreproduction; and
(4) Identify the custodian to whom such documentary materialshall be made available.
3. No such demand shall:
(1) Contain any requirement which would be held to beunreasonable if contained in a subpoena duces tecum issued by acourt of this state in aid of a grand jury investigation of suchalleged violation; or
(2) Require the production of any documentary material whichwould be privileged from disclosure if demanded by a subpoenaduces tecum issued by a court of this state in aid of a grandjury investigation of such alleged violation.
4. Service of a demand by the attorney general as providedherein may be made by:
(1) Delivery of a duly executed copy thereof to the place ofbusiness of the person to be served in this state, or if theperson has no place of business in this state, to his principalplace of business or to the residence of the person*** to be served;or
(2) Mailing by certified mail, return receipt requested andsigned by the person to whom service is directed, a duly executedcopy thereof addressed to the person to be served at his place ofbusiness in this state, or if the person has no place of businessin this state, to his principal place of business or to theresidence of the person to be served.
5. A verified return by the individual serving any suchdemand or petition setting forth the manner of such service shallbe proof of such service. In the case of service by certifiedmail, such return shall be accompanied by the return post officereceipt of delivery of such demand signed by the person to whomservice is directed.
6. The attorney general shall designate a member of hisstaff as document custodian.
7. Any person upon whom any civil investigative demandissued under this section has been duly served shall make suchdocumentary material available for inspection and copying orreproduction to the custodian designated therein at the principalplace of business of such person or at such other place as suchcustodian and such person thereafter may agree, and prescribe inwriting or as the court may direct on the return date specifiedin such demand or on such latter date as such custodian mayprescribe in writing. Such person may, upon written agreementbetween such person and the custodian, substitute for copies ofall or any part of such documentary material originals thereof.
8. The custodian to whom any documentary material is sodelivered shall take physical possession thereof, and shall beresponsible for the use made thereof and for the return thereofpursuant to this section. The custodian may cause thepreparation of such copies of such documentary material as may berequired for official use. While in the possession of thecustodian, no documentary material so produced or copies thereofshall be available for examination, without the consent of theperson who produced such documentary material, by any individualother than the attorney general or a duly authorized member ofhis staff. Under such reasonable terms and conditions as theattorney general shall prescribe, documentary material while inthe possession of the custodian shall be available forexamination by the person who produced such material or any dulyauthorized representative of such person.
9. Whenever any attorney has been designated to appear onbehalf of the state, before any court or grand jury in any caseor proceeding involving any alleged antitrust violation, thecustodian may deliver to such attorney such documentary materialin the possession of the custodian as such attorney determines tobe required for use in the presentation of such case orproceeding on behalf of the state. Upon the conclusion of anysuch case or proceeding, such attorney shall return to thecustodian any documentary material so withdrawn and copiesthereof which have* not passed into the control of such court orgrand jury through the introduction thereof into the record ofsuch case or proceeding.
10. Upon the completion of the investigation for which anydocumentary material was produced under this section and any caseor proceeding arising from such investigation, the custodianshall return to the person who produced such documentary materialall such documentary material and copies thereof which have* notpassed into the control of any court or grand jury through theintroduction thereof into the record of such case or proceeding.
11. When any documentary material has been produced by anyperson under this section for use in any antitrust investigation,and no such case or proceeding arising therefrom has beeninstituted within a reasonable time after completion of theexamination and analysis of all evidence assembled in the courseof such investigation, such person shall be entitled, uponwritten demand made upon the attorney general, to the return ofall documentary material and copies thereof so produced by suchperson.
12. In the event of the death, disability, or separationfrom service of the custodian of any documentary materialproduced under any demand issued under this section, or theofficial relief of such custodian from the responsibility for thecustody and control of such documentary material, the attorneygeneral shall promptly designate another official to serve ascustodian thereof, and transmit notice in writing to the personwho produced such documentary material as to the identity andaddress of the successor so designated. Any successor sodesignated shall have with regard** to such materials all dutiesand responsibilities imposed by this section upon his predecessorin office with regard thereto, except that he shall not be heldresponsible for any default or dereliction which occurred beforehis designation as custodian.
13. Whenever any person fails to comply with any civilinvestigative demand duly served upon him under this section orwhenever satisfactory copying or reproduction of any suchmaterial cannot be done and such person refuses to surrender suchdocumentary material, the attorney general, through such officersor attorneys as he may designate, may file, in the circuit courtof the state for the circuit in which such person*** resides, isfound, or transacts business, and serve upon such person apetition for an order of such court for the enforcement of thissection, except that if such person transacts business in morethan one such circuit such petition may be filed in any suchcircuit, or in such other circuit in which such person transactsbusiness as may be agreed upon by the parties to such petition.
14. Within twenty days after the service of any such demandupon any person***, or at any time specified in the demand,whichever period is shorter, such person may file, in the circuitcourt for the circuit within which such person resides, is found,or transacts business in this state, or if such person does notreside in or transact business in this state in the circuit courtwithin which the office of the custodian is situated and serveupon such custodian a petition for an order of such courtmodifying or setting aside such demand. The time allowed forcompliance with the demand in whole or in part as deemed properand ordered by the court shall not run during the pendency ofsuch petition in the court. Such petition shall specify eachground upon which the petitioner relies in seeking such relief,and may be based upon any failure of such demand to comply withthe provisions of this section or upon any constitutional orother legal right or privilege of such person.
15. At any time during which any custodian is in custody orcontrol of any documentary material delivered by any person incompliance with any such demand, such person may file in thecircuit court for the circuit within which the office of suchcustodian is situated, and serve upon such custodian a petitionfor an order of such court requiring the performance by suchcustodian of any duty imposed upon him by this section.
16. Whenever any petition is filed in any circuit courtunder this section, such court shall have jurisdiction to hearand determine the matter so presented, and to enter such order ororders as may be required to carry into effect the provisions ofthis section. Any final order so entered shall be subject toappeal by writ of prohibition. Any disobedience of any finalorder entered under this section by any court shall be punishedas a contempt thereof.
