The Antitrust Civil Process Act permits the Attorney General in charge of the Antitrust Division of the Department of Justice to issue a civil investigative demand ("CID") to a third person where there is reason to believe that such person has information relevant to suspected antitrust violations committed by the target of the investigation. The CID may require the person to produce documentary material, to answer written interrogatories, or to give testimony regarding documentary material or information. 

In National Electrical Mfg Assoc v Dept of Justice, for example, the National Electrical Manufacturer’s Association ("NEMA") received a CID requiring it to produce market data regarding medical diagnostic imaging equipment with regard to the Department of Justice’s investigation of a proposed joint venture between General Electric Company and Phillips N.V. Despite NEMA’s objections, the court upheld the CID, explaining that the Act authorized the issuance of CIDs to third persons. In addition, the court emphasized that the legislative history of the Act revealed that Congress had explicitly authorized the issuance of CIDs to trade associations in order to obtain market data for the purpose of expediting Clayton Act investigations. 

However, the Department of Justice’s authority to subpoena records of third persons is conditioned upon safeguards against disclosure. Generally, the standards applicable to discovery requests under the Federal Rules of Civil Procedure apply to the issuance of CIDs.  Accordingly, a trade association may place objections based on civil discovery standards, including objections that the requests are overbroad, onerous, irrelevant, or that the documents sought are protected by the attorney-client privilege.

For example, in FTC v Tuttle, the FTC had issued a subpoena to the accounting firm of Ernst & Ernst in connection with hearings regarding the acquisition of Rawlings Manufacturing Company by A.J. Spalding and Brothers, Inc. Ernst & Ernst had prepared annual census reports for the Athletic Goods and Manufacturers Association ("AGMA") based upon statistical data and information received from AGMA’s members. The data was to be kept confidential by Ernst and Ernst and was to be destroyed as soon as it had served the accountant’s purpose in preparing the census report.

The court held that the FTC could obtain the data of individual association members, reasoning that the FTC had the power to subpoena any documentary evidence from persons not being investigated so long as the evidence related to any matter under investigation. Significantly, the court concluded that even if the records of individual members qualified as trade secrets, they could still be obtained by the FTC, although their disclosure to the public was statutorily prohibited.

In the context of civil litigation, a trade association or third party collector who receives a subpoena pursuant to Fed.R.Civ.P. 45 may have additional basis for objections. Specifically, those subpoenas are subject to the provisions of Fed.R.Civ.P. 26(c). As a result, a trade association or third party may base objections on the production of the documents on grounds of irrelevancy, undue burdensomeness, the attorney-client privilege, as well as the need to protect a trade secret or other confidential research, development or commercial information.

So, what can be done to protect the disclosure of information? In all likelihood, the information sought by the enforcement agency will ultimately have to be produced (usually by court order). However, an association may raise valid, assertable defenses to the production of certain documents. In order to maximize the likelihood of raising a successful defense to discovery requests and subpoenas seeking document production, trade associations should enact and procure a number of protective measures. The protective measures will enable the association to assert those defenses when the occasion arises. For example, trade associations should limit access to specific documents and reports to a control group within the association (e.g. an executive committee). Also, the association may be able to establish a privilege with regard to certain information if it is used by the association’s accountants or attorneys. Another way to prevent disclosure of individual company data is for the trade association to destroy the gathered data as soon as it has served its purpose. Associations should implement a detailed disposal policy with regard to documents collected by the association. The policy should address in sufficient detail the association’s document disposal and redaction policies. The association may choose to strike the names of individual members from the data collected. However, it is critical to remember that a trade association must not destroy data if it knows that an investigation is pending. In such an instance, the destruction or alteration of documents could constitute obstruction of justice.

Furthermore, trade associations must advise individual members that company data submitted to the association will be kept confidential. These assurances may be necessary to support later objections to the subpoenas.