The Civil Investigative Demand: New Fact-Finding Powers for the Antitrust Division

The complexity, scope and length of modem antitrust litigation bring to prominence the procedures by which evidence - particularly documentary evidence - is discovered and placed before the courts and administrative agencies. Fact-finding mechanisms now available for ferreting out and prosecuting violations make up an imposing array. These include the grand jury subpoena, the discovery provisions of the Federal Rules of Civil and Criminal Procedure and the subpoena and visitorial powers of certain administrative agencies. The "civil investigative demand," a precomplaint compulsory process, is a new weapon proposed to be added to this arsenal.

Few dispute the desirability of new precomplaint investigative authority in civil antitrust cases. Legislation passed by the Senate during the First Session of the 86th Congress, however, is apparently designed to attain objectives in addition to precomplaint investigation. In so doing, it may infringe constitutional safeguards erected for the protection of private papers as well as safeguards designed to achieve an impartial administration of justice.