In conducting civil antitrust investigations, the Department of Justice (DOJ) Antitrust Division issues civil investigative demands (CIDs) for relevant documents, information, and depositions from parties and non-parties to the investigation. On September 10, Assistant Attorney General Makan Delrahim of the DOJ Antitrust Division announced two uniform updates to its CID forms and deposition process:
All CIDs issued by the Antitrust Division (including CIDs for documentary submissions, written interrogatories, oral testimony, or any combination thereof) will now notify all recipients of the CID that their documents, interrogatory responses, and/or testimony may be used by the DOJ in other civil, criminal, administrative, or regulatory matters or proceedings.
Antitrust Division attorneys taking oral testimony pursuant to the CID will ask the witness questions on the record at the beginning of each interview to confirm that the witness understands how the information they provide may be used by the Justice Department. Individuals may refuse to answer any question that might incriminate them, consistent with their Fifth Amendment rights.
The exact text of the notice, which must be included in all CIDs, is as follows:
The information you provide may be used by the Justice Department in other civil, criminal, administrative, or regulatory actions or proceedings. Individuals may refuse, consistent with their rights guaranteed to them by the Fifth Amendment to the United States Constitution, to produce documents and/or answer any question that might tend to incriminate them.
Update ‘consistent’ with longstanding Justice Department policy.
The Justice Department noted that these updates are “consistent with longstanding department policies,” and that the purpose of the updated protocols is to promote transparency in the department’s antitrust investigations. According to the Justice Department's Antitrust Division Manual, CIDs are used by the Justice Department to compel parties to turn over information when voluntary requests are "deemed insufficient or inappropriate to the needs of the division."
Obtaining a CID from the Antitrust Division is a serious matter, so you had better be aware of https://www.jdsupra.com/legalnews/3-ways-to-respond-to-a-doj-civil-1827931/. Although CIDs are issued in a civil context, because information obtained in response to a CID may be used by DOJ in a criminal case, CID recipients should be mindful of the Antitrust Division's Leniency Program for criminal violations.