2023 New Mexico Statutes › Chapter 57 - Trade Practices and Regulations › Article 1 - Restraints of Trade › Section 57-1-5 - Attorney general; investigation.

A. If the attorney general has reasonable cause to believe that a person has information or may be in possession, custody or control of any document or other tangible object relevant to a civil investigation for violation of Section 57-1-1 or 57-1-2 NMSA 1978, he may, before bringing any action, apply to the district court of Santa Fe county for approval of a civil investigative demand, demanding, in writing, such person to appear and be examined under oath, to answer written interrogatories under oath, or to produce the document or object for inspection and copying. The demand shall:
(1) be served upon the person in the manner required for service of process in this state, or, if the person cannot be found or does not reside or maintain a principal place of business within this state, in the manner required for service of process in the state in which the person resides, maintains a principal place of business or can be found;
(2) describe the nature of the conduct under investigation;
(3) describe the class or classes of documents or objects with sufficient definiteness to permit them to be fairly identified, if the production of documents or objects is requested;
(4) contain a copy of the written interrogatories, if answers to written interrogatories are sought;
(5) prescribe a reasonable time at which the person must appear to testify, within which to answer the written interrogatories or within which the document or object must be produced;
(6) specify a place for the taking of testimony or for production and designate a person who may be an authorized employee of the attorney general, to be custodian of the document or object; and
(7) contain a copy of Subsections B, C and D of this section.
No demand to produce a document or object for inspection and copying shall contain any requirement which would be unreasonable or improper if contained in a subpoena duces tecum issued in a civil proceeding by a district court of this state.
The district court shall approve the demand if it finds that the attorney general has reasonable cause to believe that a person has information or may be in possession, custody or control of any document or other tangible object relevant to a civil investigation for violation of Section 57-1-1 or 57-1-2 NMSA 1978 and that the demand is proper in form. A demand shall not be issued without approval of the district court.
B. If a person fails to comply with the written demand served upon him under the provisions of Subsection A of this section, the attorney general may file in the district court of the county in which the person resides or in which he maintains a principal place of business within this state or of the county of Santa Fe if the person neither resides nor has a principal place of business in this state a petition for an order to enforce the demand. Notice of hearing 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 in form and there is reasonable cause to believe that the person has information or may be in possession, custody or control of any document or other tangible object relevant to a civil investigation for violation of Section 57-1-1 or 57-1-2 NMSA 1978, the court shall order the person to comply with the demand, subject to any modification that the court may prescribe. Upon motion by the person and for good cause shown, the court may make any further protective order in the proceedings that justice requires.
C. Prior to the filing of an action under the provisions of the Antitrust Act for the violation under investigation, any testimony taken or material produced under this section shall be kept confidential by the attorney general unless confidentiality is waived by the person being investigated and the person who has testified, answered interrogatories or produced material, or disclosure is authorized by the court. All court records, including docket, application, petitions, motions and other papers filed under this section shall be open to inspection only to the attorney general and the person upon whom the demand for which inspection is sought has been served, unless otherwise ordered by the court.
D. Any person compelled to appear under this section and required to testify under oath may be accompanied, represented and advised by counsel. An objection may properly be made, received and entered upon the record when it is claimed that such person is entitled to refuse to answer the question on grounds of any constitutional or other legal right or privilege.
History:
1978 Comp., § 57-1-5, enacted by Laws 1979, ch. 374, § 6.
ANNOTATIONS
Recompilations.
— Laws 1979, ch. 374, § 18, recompiles former 57-1-5 NMSA 1978, relating to limitation of purchases, as 57-1-18 NMSA 1978.
Constitutionality of civil investigative demands.
— Constitutional restrictions on government searches and seizures do not impose a requirement that civil investigative demands (CID) issue only upon a reasonable cause to believe that the Antitrust Act has been or is being violated. The federal constitution requires only that for the issuance of an administrative subpoena the inquiry must be within the authority of the agency, the demand must not be too indefinite, and the information must be reasonably relevant to the purposes of the investigation; also, N.M. Const., art. II, § 10 does not require a "probability" showing that the federal constitution does not. Moreover, probable cause does not have the same meaning in the context of administrative searches as it does in the context for searches for evidence of crimes.
Wilson Corp. v. State ex rel. Udall
, 1996-NMCA-049, 121 N.M. 677, 916 P.2d 1344, cert. denied, 121 N.M. 644, 916 P.2d 844, and cert. denied, 519 U.S. 964, 117 S. Ct. 388, 136 L. Ed. 2d 304.
Requirements for enforcement of civil investigative demands.
— The attorney general need not show reasonable cause to believe that the Antitrust Act has been or is being violated before a court can enforce a civil investigative demand (CID); this section is satisfied if the attorney general makes a sworn showing that: the attorney general is conducting an investigation to determine whether the Antitrust Act has been or is being violated, the information sought is relevant to the investigation, and there is reasonable cause to believe that the recipient of the CID possesses the information. If the attorney general makes the necessary showing, the person challenging the CID bears the burden of establishing some impropriety in the CID, such as the absence of proper use, the privileged nature of the information, or the unreasonable burden imposed by the CID.
Wilson Corp. v. State ex rel. Udall
, 1996-NMCA-049, 121 N.M. 677, 916 P.2d 1344, cert. denied, 121 N.M. 644, 916 P.2d 844, and cert. denied, 519 U.S. 964, 117 S. Ct. 388, 136 L. Ed. 2d 304.
Summary judgment quashing investigations improper.
— A summary judgment quashing civil investigative demands (CIDs) on the ground that the attorney general's purpose in seeking them was improper was not warranted since the evidence raised genuine questions of material fact regarding the purpose of the CIDs.
Brewer Oil Co. v. State ex rel. Udall
, 1995-NMCA-142, 121 N.M. 106, 908 P.2d 799.