Effective 28 Aug 1974

416.091. Documentary material, requirement to produce, demand for, how made, how served — returns, how verified — failure to comply, effect of. — 1. Whenever the attorney general has reason to believe that a person under investigation may be in possession, custody, or control of any books, documents, records, writings or tangible things, hereinafter referred to as "documentary material", relevant to a civil investigation of a violation of section 416.031, he may, prior to the institution of a civil or criminal proceeding 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 examination.

2. Each such demand shall:

(1) State the nature of the conduct constituting the alleged antitrust violation which is under investigation and the provision of law applicable thereto;

(2) Describe the class or classes of documentary material to be produced thereunder with such definiteness and certainty as to permit such documentary material to be fairly identified;

(3) Prescribe a return date which will provide a reasonable period of time within which the documentary material so demanded may be assembled and made available for inspection and copying or reproduction; and

(4) Identify the custodian to whom such documentary material shall be made available.

3. No such demand shall:

(1) Contain any requirement which would be held to be unreasonable if contained in a subpoena duces tecum issued by a court of this state in aid of a grand jury investigation of such alleged violation; or

(2) Require the production of any documentary material which would be privileged from disclosure if demanded by a subpoena duces tecum issued by a court of this state in aid of a grand jury investigation of such alleged violation.

4. Service of a demand by the attorney general as provided herein may be made by:

(1) Delivery of a duly executed copy thereof to the place of business of the person to be served in this state, or if the person has no place of business in this state, to his principal place of business or to the residence of the person*** to be served; or

(2) Mailing by certified mail, return receipt requested and signed by the person to whom service is directed, a duly executed copy thereof addressed to the person to be served at his place of business in this state, or if the person has no place of business in this state, to his principal place of business or to the residence of the person to be served.

5. 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 certified mail, such return shall be accompanied by the return post office receipt of delivery of such demand signed by the person to whom service is directed.

6. The attorney general shall designate a member of his staff as document custodian.

7. Any person upon whom any civil investigative demand issued under this section has been duly served shall make such documentary material available for inspection and copying or reproduction to the custodian designated therein at the principal place of business of such person or at such other place as such custodian and such person thereafter may agree, and prescribe in writing or as the court may direct on the return date specified in such demand or on such latter date as such custodian may prescribe in writing. Such person may, upon written agreement between such person and the custodian, substitute for copies of all or any part of such documentary material originals thereof.

8. The custodian to whom any documentary material is so delivered shall take physical possession thereof, and shall be responsible for the use made thereof and for the return thereof pursuant to this section. The custodian may cause the preparation of such copies of such documentary material as may be required for official use. While in the possession of the custodian, no documentary material so produced or copies thereof shall be available for examination, without the consent of the person who produced such documentary material, by any individual other than the attorney general or a duly authorized member of his staff. Under such reasonable terms and conditions as the attorney general shall prescribe, documentary material while in the possession of the custodian shall be available for examination by the person who produced such material or any duly authorized representative of such person.

9. Whenever any attorney has been designated to appear on behalf of the state, before any court or grand jury in any case or proceeding involving any alleged antitrust violation, the custodian may deliver to such attorney such documentary material in the possession of the custodian as such attorney determines to be required for use in the presentation of such case or proceeding on behalf of the state. Upon the conclusion of any such case or proceeding, such attorney shall return to the custodian any documentary material so withdrawn and copies thereof which have* not passed into the control of such court or grand jury through the introduction thereof into the record of such case or proceeding.

10. Upon the completion of the investigation for which any documentary material was produced under this section and any case or proceeding arising from such investigation, the custodian shall return to the person who produced such documentary material all such documentary material and copies thereof which have* not passed into the control of any court or grand jury through the introduction thereof into the record of such case or proceeding.

11. When any documentary material has been produced by any person under this section for use in any antitrust investigation, and no such case or proceeding arising therefrom has been instituted within a reasonable time after completion of the examination and analysis of all evidence assembled in the course of such investigation, such person shall be entitled, upon written demand made upon the attorney general, to the return of all documentary material and copies thereof so produced by such person.

12. In the event of the death, disability, or separation from service of the custodian of any documentary material produced under any demand issued under this section, or the official relief of such custodian from the responsibility for the custody and control of such documentary material, the attorney general shall promptly designate another official to serve as custodian thereof, and transmit notice in writing to the person who produced such documentary material as to the identity and address of the successor so designated. Any successor so designated shall have with regard** to such materials all duties and responsibilities imposed by this section upon his predecessor in office with regard thereto, except that he shall not be held responsible for any default or dereliction which occurred before his designation as custodian.

13. Whenever any person fails to comply with any civil investigative demand duly served upon him under this section or whenever satisfactory copying or reproduction of any such material cannot be done and such person refuses to surrender such documentary material, the attorney general, through such officers or attorneys as he may designate, may file, in the circuit court of the state for the circuit in which such person*** resides, is found, or transacts business, and serve upon such person a petition for an order of such court for the enforcement of this section, except that if such person transacts business in more than one such circuit such petition may be filed in any such circuit, or in such other circuit in which such person transacts business as may be agreed upon by the parties to such petition.

14. Within twenty days after the service of any such demand upon any person***, or at any time specified in the demand, whichever period is shorter, such person may file, in the circuit court for the circuit within which such person resides, is found, or transacts business in this state, or if such person does not reside in or transact business in this state in the circuit court within which the office of the custodian is situated and serve upon such custodian a petition for an order of such court modifying or setting aside such demand. The time allowed for compliance with the demand in whole or in part as deemed proper and ordered by the court shall not run during the pendency of such petition in the court. Such petition shall specify each ground upon which the petitioner relies in seeking such relief, and may be based upon any failure of such demand to comply with the provisions of this section or upon any constitutional or other legal right or privilege of such person.

15. At any time during which any custodian is in custody or control of any documentary material delivered by any person in compliance with any such demand, such person may file in the circuit court for the circuit within which the office of such custodian is situated, and serve upon such custodian a petition for an order of such court requiring the performance by such custodian of any duty imposed upon him by this section.

16. Whenever any petition is filed in any circuit court under this section, such court shall have jurisdiction to hear and determine the matter so presented, and to enter such order or orders as may be required to carry into effect the provisions of this section. Any final order so entered shall be subject to appeal by writ of prohibition. Any disobedience of any final order entered under this section by any court shall be punished as a contempt thereof.

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(L. 1974 S.B. 424)

*Word "has" appears in original rolls.

**Word "regards" appears in original rolls.

***Word "persons" appears in original rolls.