How Confident Should You Be About State Confidentiality?

When a company is served by a state enforcer with an antitrust investigative subpoena or civil investigative demand, concern invariably arises over the confidentiality of the information that the company is being asked to provide. This is a vexing and perplexing topic for private counsel, who are often unfamiliar with the interplay of diverse state FOIA and investigatory laws. In this article, Deputy Utah Attorney General David Sonnenreich seeks to unravel these issues, and to give practical guidance both as to what can be done to minimize unintentional disclosures (e.g. FOIA request responses) and how to negotiate appropriate protections concerning anticipated intentional disclosures (e.g. sharing between states involved in a multistate investigation). The article provides insight into how a state enforcer handles confidential information during an antitrust investigation, and examines witness confidentiality agreements and other tools that can be used to address confidentiality concerns.

By David Sonnenreich¹

One topic frequently dominates the first conversation that state enforcers have with counsel for a witness in an antitrust investigation – confidentiality. This is true whether the witness is a potential target of the investigation, a potential victim of alleged anticompetitive behavior, or merely a possible fact witness. Whether we enforcers want nothing more than an informal oral interview, or are demanding compliance under oath with a detailed set of