*1 82(b)(2), permitted under Rule award than is vary according
the court can an award to the TESORO PETROLEUM CORPORATION 82(b)(8). factors listed in Rule Company, and Tesoro Alaska Appellants, remand, superior con On court should McCreadie, Morlang, sider whether and do, implicate they claims If
Weise's AWHA. Botelho, STATE of Alaska and Bruce M. employees the court should those award at capacity in his official as Gen- 28.10.110(c).28 torney's pursuant fees to AS Alaska, Appellees. eral State of McCreadie, Morlang, If claims Weise's No. S-9379. implicate they do not AWHA and are there claims, privately fore entitled to settle their Supreme Court of Alaska. superior court should consider whether they are entitled to an award of fees under Feb. catalyst theory. Finally, because their AWHA,
claims do not come under DeSalvo
and White in case are entitled to a catalyst theory
determination under the they
whether are entitled to an award of
fees.
v. CONCLUSION superior
Because the court did not consid- applied
er whether AWHA to the claims of
McCreadie, Weise, Morlang, and we remand
for determination of that issue. If the stat- apply employees,
ute is found to to those apply (including court should de- liquidated damages)
termination attorney's award fees to AS
28.10.110(c). If apply, AWHA does not should determine whether
they attorney's are entitled to fees under the
guidelines opinion. established this toAs White,
DeSalvo the court must make the catalyst
determination under theory, as apply
AWHA does not to their claims. necessarily (e)-(h) which were except provided incurred. The actual of this sec- legal tion, fees shall include fees for work custom- attorney paid reasonable fees arily performed by but which was defendant. delegated performed by investigator, to and 23.10.110(e)-(h) establish faith defense paralegal, or law clerk. employer for an who shows clear and con- vincing employer evidence that the had reason- states, 23.10.110(c) part: 28 AS grounds believing able that the act or omis- brought The court in an action under sion was not in violation of AS 23.10.060. shall, judgment section in addition to a award- ed allow costs action, plaintiff,
Douglas Serdahely, LLP, Boggs, J. Patton Anchorage, Slaughter, and James C. Ful- Jaworski, LLP, bright Houston, TX, & Appellants. Gardner,
Douglas Assistant Gen- eral, Botelho, Attorney and Bruce M. Gener- al, Juneau, Appellees. FABE, Justice,
Before Chief MATTHEWS,BRYNER, and CARPENETI, Justices.
OPINION FABE, Chief Justice.
I,. INTRODUCTION Company challenges Tesoro Petroleum (CID) investigative civil demand served company by Alaska's as part gasoline prices. of an into Tesoro contends that the CID was overbroad impermissibly that the State disclosed to pro- outside counsel documents that Tesoro response duced to the CID. Because Hosie, Spencer outside counsel to the attor- ney general, should be considered "an autho- purposes rized of the state" for 45.50.592(e), affirm court's decision to allow disclosure of the Moreover, documents to Hosie. we affirm court's decision that the CID oppressive." was not "unreasonable and overly was PROCEEDINGS areas in which CID AND four IIL FACTS many employees, it covers too burdensome: public interest determining that Upon period, too long time it covers too covers possi- investigation of be served would too products, and it covers range broad Antitrust Act Alaska violations ble scope. geographic broad Tesoro, Tesoro, a CID on served State The CID de- 45.50.592. Second, objected to the disclosure to AS pursuant Tesoro investiga- subject under the CID matter of documents scribed requested fixing, combinations "possible price outside counsel State's tion trade, anticompetitive prohibit such disclosure. restraint of the court distribution, marketing, pricing, authorize refining, does not argued that the statute fuel of Alaska." in the State practices and sales pro- firm to review documents and his Hosie because Hosie to the CID duced forty-six specific de- The CID contained counsel, firm, are not as outside *4 and his exception With the mands for documents. AS employee[s]" _ under "authorized period 35, the time covers No. which Demand 45.50.592(e) con- Tesoro did not and because 1, through the date of ser- January to disclosure. sent prac- vice, Tesoro's business covers the CID ten approximately period over a tices response, contended In State present. As January 1990 to years, from reasonably in- requests facilitated document State, the demands "re- by the described high price petroleum vestigation of the prior regarding statements quest information explained products in Alaska. The State charts to identi- testimony, organizational whether antitrust that in order to determine witnesses, exchange doc- product fy potential occurred, required docu- had violations uments, analyzing margins, returns reports markets, regarding ments from other Pacific information, component capital, pricing on a petroleum products, and over types all information, trans- output refining input and long enough to determine trends. period time costs, engaged The State portation ete." argued that Hosie should be The also State firm, Hosie, Frost and his law Spencer Hosie desig- employee or an "authorized considered to assist legal counsel Large, as outside & statute, there- and that he is nee" under the contract investigation; a written Tesoro responsive docu- permitted to receive fore rela- independent contractor established ments. and the State. tionship Hosie between Judge is- Michalski October On 45.50.592(P),1filed Tesoro, pursuant to AS deciding and Order sued a Memorandum argu Tesoro's modify the CID. petition a superior court deter- petition. The Tesoro's encompassed two superior court ments to an "inde- that a reference to Hosie as mined to out of documents main disclosure issues: in the contract pendent contractor" between of the CID. counsel and overbreadth side not relevant to and the State is Hosie CID statute. Therefore, superior court First, argued that the CID should Tesoro considered an "Spencer Hosie is require- found limited because its be set aside or in his role as outside 'employee of the State' and thus contain burdensome ments are "too Attorney Alaska Pe- General's counsel requirements would be unreasonable Investigation Pricing troleum Products in a improper if contained 45.50.592(e)." The court purposes of state." a court of this duces tecum issued restric- determined that "the 'consent' Superior also argument Court At oral before employee or Michalski, and the term 'authorized specified tion Judge A. Tesoro Peter person a demand is 45.50.592(f) petition a on whom provides: 1. AS- cause, served, require stating good the attor- specified in any date At time before the return ney general to act in accor- or another after the de- demand, or within days (e) requirements of this sec- dance with the served, whichever mand has been period the return date to extend shorter, with all in connection tion, and petition petitions for, modify a demand issued demand, aside superior or to or set filed in the court cause, section, (a) stating good under of this judicial on district in which superior for the court be filed in the the demand is served resides. whom parties judicial reside. A where the district designee' apply generally, commonly was not meant to situa- More "review rul ings discovery employs for an abuse of discere tions where the state outside coun- tion." superior Because we hold that the sel." applied appropriate court standard to its Additionally, superior court held that CID, review of the superior we review the the CIDs are not "as whole 'unreasonable " court's order under an abuse of discretion oppressive.' scope Based on "the standard.6 General's under the statute, given agencies and the deference statutory investigative powers," Superior B. The Court Did Not Err
court found that the CIDs were neither un-
Allowing the Attorney General
improper.
reasonable nor
court
Pass Documents to its Outside Coun-
did, however, modify
the CID
several
sel Because Hosie Is an "Authorized
ways.
permitted
produce
It
Tesoro to
re-
Employee
"Desig-
the State" and a
basis,
sponses
rolling
starting
days
on a
ten
45.50.592(e).
nee" Under AS
following the issuance of the order. The
argues
Tesoro
court also limited the CID to cover docu-
by holding
erred
that Hosie is an "authorized
by personnel
ments held
with decision-mak-
employee"
45.50.592(e)
of the state under AS
authority,
rather
than documents held
him,
allowing
therefore,
to review the
employees.
response
to Teso-
45.50.592(e)
CID documents. Alaska Statute
complaints
geographical scope
ro's
about the
*5
establishes the situations in which documents
CID,
superior
the
court also held that
produced
response
in
may
to a CID
be dis-
Tesoro did not need to submit documents
closed or used:
regarding operations in the Far East. Final-
ly,
superior
the
court
Documentary
struck two demands as
produced pursuant
material
confusing
internally
demand,
it,
inconsistent.
copies
to a
unless other-
wise ordered
court for
III. DISCUSSION
shown, may
cause
produced
not be
for
inspection
by,
copying
nor
its con-
A. Standard
Review
to, anyone
tents be disclosed
other than
correctly
Whether
an
employee
authorized
the state with-
interpreted
Spenc
AS 45.50.592 to hold that
out
person
pro-
consent
who
er
Hosie was an "authorized
However,
duced the material
under
-
question
statutory
state" is a
construction.
those reasonable terms and conditions the
independent
judgment
We exercise our
in
attorney general prescribes, copies of the
statutory interpretation.2
matters of
The re
documentary material
shall be available
lated
right
petition
issues of Tesoro's
to
for
inspection
copying by
appropriate
relief and the
relief under AS
produced
who
the material or an autho-
45.50.592(e)
statutory
are also matters of
representative
person.
rized
of that
apply
construction to which
independent
our
attorney general,
designees,
or a
may use
jud gment.3
copies
documentary
material as the
previously
have
supe
attorney general
reviewed
designee
considers
granting
rior court orders
necessary
access to docu
chap-
in the enforcement of this
produced pursuant
ter,
court;
ments
including presentation
AS 45.50.592
before a
under
however,
abuse of discretion standard.4
that contains trade se-
(Alaska
2. See In re
Johnstone,
P.3d 1226, 1231
6. See In re
Case,
Sealed
121 F.3d
2000).
(D.C.Cir.1997) (holding
appel-
that while federal
generally
ruling
late courts
review district court's
id.
See
production
for the
only
evidence
for arbitrariness or abuse of dis-
4. See Novak v.
Co.,
Orca Oil
875 P.2d
cretion,
given
ruling
unsup-
deference is not
if
(Alaska 1994).
standard);
ported by
legal
the record or relevant
5. Cockerham v. State,
Novak,
539 n.
see also
crets investigating Teso- represent State in which the court approval of him ro, have named and thus could adequate notice pending after action is to whom the materi- specific "representative" furnishing the material. inspection, it is produced als were to be added.) (Emphasis giving Hosie ac- conclude that impossible to 45.50.592(e) relates 1. Alaska Statute upon production materials their to those cess disclosure. post-production attorney general would amount to 45.50.592(e)-like "production" or "disclo- round of its additional Alaska Statute former 15 U.S.C. counterpart, federal contemplation of subsection within the sure" 1313(c)-addresses only 592(e). post-production the attor- part § the team that As under a sub produced ney of materials to conduct general disclosure has assembled (e)'s .592(a) Thus, work, then, regular subsection investigation's CID. section produc operates to restrict circle of language firm fall within the literal and his Hosie stating already produced, inspect having tion of materials direct those to a de produced that "material CID, under the without materials produced ... [or] occur- production mand ... not be or disclosure further with the sub except in accordance ring. disclosed" cases dis provisions. The federal
section's
They all
out.
by the dissent bear this
cussed
2. Contractual definitions
origi
"production"
address issues of
after
Moreover,
if it addressed the
even
production.
nal
origi
seope
for the
permissible
of disclosure
(e)
Thus,
cases
addresses
CID,
subsection
production of documents under
nal
production or
generation of
.592(e)
which a second
preclude disclo
would not
subsection
necessary;
it does not
disclosure would
present
case. Tesoro
Hosie
sure to
may be authorized
purport
to address who
language of the contract be
points to the
origi
attorney general
inspect the
tween Hosie and the
*6
triggering a
without
argument that Hosie was not
nally produced materials
support of its
production.
round of disclosure
second
employee of the state to whom documents
an
in subsections
partly covered
That
issue is
specifies:
disclosed. The contract
could be
(a)
(b).
592(a)
gives the
Subsection
and
any agents
employ
and
and
"The contractor
attorney general
to issue CIDs.7
independent
act in an
ees of the contractor
(b)
attorney general
the
gives
And subsection
employees or
capacity and are not officers or
em
name
"state
unqualified power to
performance
in the
agents of the State
to receive
ployees
representatives"
that because Ho-
Tesoro reasons
contract."
inspection
copying."
and
"for
duced materials
the
independent contractor under
sie is an
contract,
em
he cannot be an "authorized
8
in AS
ployee of the state" as described
Here,
the
attorney general
issued
the
45.50.592.
attorney
directly
the
production
CID for
argument
unpersuaded
are
Tesoro's
expressly
are
general's
These actions
office.
(b).
should,
.592(a)
matter
as a
that the retainer contract
allowed under subsections
45.50.592(a)
demand
Each
must
7. AS
states:
(1)
alleged
specific
vio-
state the
statute
per-
attorney general
that a
determines
If the
investigation, and the
custody,
of a
which is under
possession,
or control
lation of
son is in
investigation.
subject
general
matter of
situated,
wherever
evidence,
documentary
attorney general
to be relevant
describe,
believes
(2)
specificity
so
with reasonable
45.50.590,
authorized in
demanded,
fairly
to indicate the material
writing
attorney general
execute in
documentary
produced;
material to be
upon
and cause to be served
(3)
prescribe
date within which
a return
investigative
requiring the
demand
documentary
produced; and
material
is to be
permit
produce
(4)
represen-
identify
employees or
the state
inspection
copying.
documentary material is to
tatives whom the
copying.
inspection and
45.50.592(b)
be made available
8. AS
states:
legislature,
law, control the construction of the statute.
effect to the intent of the
statutory interpretation,
In this matter of
we
regard
meaning
due
for the
that the statuto
policy
look to
behind the statute and the
ry language conveys to others."
13Statutory
reality
relationship,
rather
than to the
begins
language
construction
with the
of the
parties' contractual statement of the relations
light
statute construed in
purpose
of the
Also,
hip.9
"independent
because the terms
its enactment.14"If the
unambigu
statute is
"employee"
contractor"
have different
expresses
legislature's
intent,
ous and
law,10
ramifications
different areas of the
statutes
not be
will
modified or extended
"independent
contractual use of the term
judicial
If
construction.15 we find a statute
contractor" cannot be determinative. The
ambiguous,
apply
we
sliding
seale of inter
statutory
employee
term "authorized
of the
pretation,
plainer
where "the
language,
state"
equiva
need
be understood as the
convincing contrary
the more
legislative his
"employee,"
lent of the common law term
tory must be."
typically mutually
which is
exelusive
"*
"independent
term
contractor."11 Instead
Legislative
history
employee"
"authorized
should be understood
Although
legislative history
does not
statutory
grant
its
context as a
of investi
specific
reveal
meaning
intent for the
gative power
attorney general.
statutory language,
relevant
we discern two
context,
sensibly
private
it can
include
(1)
legislative
granting
concerns:
sufficient
lawyers
hired
the state to assist in antitrust
power
stigations."12
inve
general
to conduct
(2)
thorough pre-litigation investigation, and
argu
Alaska Statute 45.50.592is
implementing procedural safeguards
pro-
ably ambiguous. The statute does not define
companies
tect
from unfair treatment.
its critical terms "authorized
February
A
1975 letter
state,"
from Governor
"representative,"
"designee,"
and it
Jay
announcing
S.
signing
Hammond
facially
is not
private
obvious whether a
at
explained
torney
provision
AS 45.50
"[a]
hired
of this
should
qualify
employee."
as an
nature is desirable
"authorized
Defini
because detection of viola-
tion of the relevant
terms in
tions of the antitrust
laws
this context is a
is often a difficult
statutory
pur
matter of
requiring
construction. The
matter
review
numerous busi-
pose
statutory
give
construction is "to
ness
transactions
have occurred over
Ward,
meaning
employ-
generally
(find-
Because the
of "authorized
11. See
an extended 22Tothe extent complex matters sel for explain dual con went Hammond confi provide legislature "to was concerned with question: in the law cerns behind documentation, upon power imposed he it dentiality attorney general with procedural needs, provide detailed counsel, any but also review others who outside CID, arbi prevent responsive unfair and the same re will documents controls attorney general."1 imposes on the by the 45.50.592 trary action strictions counsel not attorney general. Outside 45.50.592, enacted AS legislature When party a third any information to disclose attorney gener already recognized the it had respondent or a unless authorized litigation;19 manage state authority to al's Thus, interpreting the term "autho court. State, clearly therefore, according to the encompass employee of the state" to rized attorney general broad give the intended to legislative attorneys both addresses outside statutory term powers. The investigative 45.50.592; adequate inves policies behind AS state," in the employee of the "authorized power and confidentiali tigatory of the state attorney gen view, "simply allows the State's ty respondents. flexibility with AS consistent eral 44,28.020 counsel at ... to hire outside designee counsel Outside discretion, which is the attorney general's 45.50.592(ce) in practice longstanding general's states Alaska Statute Furthermore, the State complex cases.20 General, designee, Attorney or a that "the Department States argues, documentary United copies of the use power under 15 U.S.C. has similar Justice designee Attorney consid as the General 1313(c)(8) America § Aluminum Co. necessary in enforcement of this ers Department Justice.21 v. United States added.) argues (Emphasis Tesoro chapter." 'designee' sentence [this] that "the word unlikely legislature, It seéms employee who is simply means the State powers to investigatory giving broad while au designated by the General as wish to restrict attorney general, would ie., documents, the 'au to see CID thorized ability effectuate attorney general's referred to employee of the state' thorized it would create investigations, or such (e)." 45.50.529[sic] the first sentence of AS expressly indicat- without such restriction only an "autho "designee" can Because Indeed, implied restriction ing its intent. state," argues, employee of the rized conflict with AS kind would "may use "designee" be a who Hosie cannot 45,50.592(e)'s language granting the express material" copies of the use the power attorney general broad way disagree. legisla Tesoro. We materials duced demanded "designee" indicates choice of the term ture's necessary in the attorney general "considers persons than include "em an intent to except chapter," when enforcement of this attorney general within the ployees" of the might prevent unwarranted prior approval CID-responsive doe- group allowed access open court. trade secrets disclosure of commonly Although one Moreover, practice of uments. long-standing it is the *8 Hammond, Governor, 1986) recovery attorney's (establishing fees of Jay Letter from S. 17. Bradner, Repre- Speaker represented the House of both the attor- Mike of where the State is counsel). Journal 159. sentatives. 1975 House ney general's private office and 18. Id. (D.C.Cir.1978). F.Supp. 1342 21. 444 powers (detailing the 19. See AS 44.23.020 attorney general); Public duties of the prevail- accordingly authorize awards of Defender Court, (Alaska Superior Agency 534 P.2d attorney ing party fees to the State for outside 1975) (holding doctrine it would violate the that Co., Atlantic counsel services. See Richfield separation powers for the court to control of of ("When is P.2d at the state represented attorney general's discretion the exercise of the attorney general's private counsel and the both cases). particular take action in whether to office, attorney's partial fees for it recover both."). State, generally Co. v. Atlantic See Richfield Revenue, (Alaska Dep't 45.50.592(b)(4) "employee," think of outside counsel as AS indicates an intent easily grant falls within the com- representatives outside counsel who are not otherwise "designee." usage mon employees state the same access to docu- employees
ments as that afforded to state cause 5. Good By specifying under this section. identify employees CID repre- must state or suggests Tesoro 45.50.592(b)(4) sentatives, good places employ-
general must demonstrate cause to re AS representatives equal footing veal documents to outside counsel without ees and purposes receiving produced documents in respondent. consent of the Alaska Statute response to the CID. 45.50.592(b)(4) requires that each demand for Alaska Statute who ployees terial be disclosed "unless otherwise ordered mentary inspection the state without the consent of the added.) superior court for anyone produced pursuant other than an authorized Tesoro asserts that the representatives evidence copying." 45.50.592(e) requires the material." good to be identify cause to a (Emphasis made available for to whom the docu shown the "state CID legislature's (Emphasis that ma ... added.) em [to] not Novak v. requires investigation by requiring situations which third section of AS eral to show attorney general's authority to conduct an [18] responsive court's conclusion that the Moreover, outside legislature Orca Oil Co.23It seems good documents, 45.50.592(e) legal expertise. cause each time he or she intended to restrict the agree as was the case in party with the is intended for attorney gen "good seeks access unlikely superi- cause" employees failure to refer both "state Superior Applied C. The Court the Cor- 45.50.592(e), representatives" AS does Reviewing rect Standard the CID. 45.50.592(b)(4), in AS demonstrates its intent Tesoro contends that the court representatives category to exclude from the inappropriately reviewed the breadth and people to whom documents can be dis seope "prose- of the under a CID deferential According closed consent. without to Teso- cutorial discretion" standard.24 ro, Hosie, counsel, because as outside properly "representative" defined as a argues prosecuto- that deference to State, not, therefore, "employee" he is rial discretion is not warranted because this who can have access to documents without a separation powers case raises no issues of Moreover, demonstration of cause. Te- unique regulatory expertise. The State 45.50.592(b)(4)'s soro contends use of responds important policy consider "representatives" expand the term does not support granting investigatory ations broad employee" the term "authorized used AS power interpret to the 45.50.592(e). attorney general's antitrust unpersuasive. powers consistently Tesoro's contention is with Alaska Civil Rule 26(b): legislature's "representatives" seope attorney gener- inclusion of "If the (Alaska 1994). (Em- through." 23. 875 P.2d 762-63 I'll need to think that al-and added.) phasis 24. Tesoro identifies two statements of the court 26(b)(1) scope Rule establishes the granted as evidence that it deference to the attor- Civil discovery: general. First, Tesoro notes that in its writ- ney discovery regarding any Parties obtain order, ten held: "Given matter, scope privileged General's under which is relevant statute, action, given agencies subject pending and the matter involved in the deference statutory investigative powers, the Court whether it relates to the claim or defense of the discovery party seeking that the CIDs are finds not unreasonable or im- or to the claim or added.) Second, proper." (Emphasis party, including *9 defense of the exis- quotes from the court's statements at tence, nature, condition description, custody, argument: questions, oral "I do have some documents, and location of or other books, any they tangible things identity relate to the tension between this statute and the and location of discretion, course, prosecutorial persons having knowledge any and the discoverable discretion, attorney gener- sought and-that is held matter. The information need not be
5AQ Maid, we considered in Matanuska any than But power is less subpoena al's antitrust and former under AS 45.50.495 CIDs issued 26(b), Rule Civil that allowed 2 light 9in of constitutional 45.50.200 AS position put the untenable general will be search and prohibiting unreasonable visions to file suit first whether having to decide set The reasonableness standard seizure.30 information." get adequate pertains in Matanuska Maid therefore forth provides the language of statute The seizure, necessarily not but to search analysis. Alas starting point for appropriate and Civil Rule 45. the statute 45.50.592(c)(2) provides ka Statute adopted the same courts have Federal requirement not "contain CID Maid for in Matanuska standard described con improper or would be unreasonable if judicial other administra review of CIDs and tecum issued subpoena duces tained in a 31 Case subpoenas well In re Sealed tive as added.) (Emphasis the state." a court of production of compel the involved a motion to 45(b)(1), subpoenas governs Rule Civil to an administrative pursuant documents tecum, "void or modi permits courts to duces Court subpoena tecum.32 The Cireuit duces or unreasonable subpoena if it is fy the applied a stan District of Columbia for the * oppressive."26 to the Mata- almost identical dard of review in a sub yet "Our role opportunity had an nuska Maid standard: have not held a CID should be limited to explain in detail when proceeding is poena enforcement inquiry determining is within whether unreasonable, oppressive. The improper, or authority agency, the demand is in Matanuska decision argues that our State sought and the information anal not too indefinite Maid, control this should Inc. v. State27 33 reasonably relevant." require There, adopted the three ysis. use to examine federal courts
ments that
have shown deference
Federal courts
for fourth amend
is sufficient
"[It
CIDs:
reviewing
agencies when
ad
administrative
subpoenas
subpoena is issued
for relevance.34
ministrative
purposes
ment
explained that courts
re
Case court
authority, relevant
Sealed
to lawful
agency's appraisal
and contains
of rele
it is issued
must "defer to the
inquiry for which
long
it
vancy,
accepted so
as
the documents to be
which must be
specification of
adequate
"35
'obviously wrong'
For federal
produced."
sought
541
courts,
statute,
inquiry
"reasonably
rele
must be
General's
under
the
agency's
general purposes
to the
of the
vant
given
agencies
the
deference
with statuto-
agency
investigation."
government
The
ry investigative powers, the Court finds that
investiga
boundaries of the
define the
are not
CIDs
unreasonable." This state-
"
"quite generally.37
agency
tion
When
permissive
ment
reflects
relevance stan-
relevant,
sought
claims the information
is
dard outlined above. We conclude that the
party challenging
"require
courts
federal
superior
applied
court
the correct standard
investigation to bear the burden of dem
of review for a CID.
onstrating
sought
the information
is irrelevant."
establishing
38
This deference
D.
Superior
Court Did Not Abuse
appropriate
"[alt
relevance is
because
the in
by Holding
Tis Discretion
the CID to
vestigatory stage,
does not
Commission
Oppressive.
be Reasonable and Not
necessary
prove specific
seek information
charges;
merely
suspicion
has a
1. CID as a whole
being
way
law is
violated
some
and wants
comp
file a
determine whether or not to
Tesoro contends that
superior
laint.39
by failing
modify
court erred
the CID
CID,
"sweep
because the
which Tesoro calls
approach
The deferential
to es
scope,"
twenty-five
pages,
contains
tablishing
sup
is sound. It is also
relevance
matter,
subject
covers broad
and is "unrea
ported by
holding
our
in Matanuska Maid
45(b)(1).
oppressive"
sonable and
under Rule
respondent
bears the burden of
demand,
Tesoro,
argues
Such a
insupporta
is
proving whether a
isCID reasonable.40 We
proportion
ble because it is "out of
to the end
therefore hold
when a trial court reviews
sought."
45.50.592,
a CID under
it should
examine
whether the
produced."41
to the
torial discretion" standard. We look to the
to lawful
for which it
determine whether the
deferential reasonable relevance standard to
quate specification of the documents to be
applied
disagree
inquiry
authority,
*
subpoena
is
a criminal law-based
for which it is issued.
We
with Tesoro that the
issued
adopt the
[2]
is
relevant
"[1]
[8]
issued
federal courts'
to the
contains ade
is relevant
"prosecu-
superior
inquiry
review,
tion.
tions it made to the
inquiry, as well as the substantial modifica
superior
case for an abuse of discretion.44
erential
cation of that
Because the court
we review the
reasonable
court's extensive
court did not abuse its discre
standard
applied
relevance"
CID,
superior
we conclude that
factual
the facts in the
the correct "def
court's
standard of
Given
appli
legal
attorney general's opposition
court's written decision to ascertain
In the
to Te-
CID,
applied.42
petition modify
the standard
That
soro's
decision ex
the State
plained:
scope
explained
purpose
investigation:
"Given the
(internal
omitted).
quotations
36.
Id.
Maid,
41. Matanuska
37.
Invention Submission
40. See
Matanuska
P.2d at 192
Comm'n,
43. McMann v. Securities & Exch.
showing
agency subpoena
burden of
that an
(2d Cir.1937).
F.2d 377
respondent,
unreasonable remains with the
...
where,
here,
agency inquiry
is autho-
Corp.,
44. See Invention Submission
965 F.2d at
sought
rized
law and the materials
are rele-
("If
the district court
inquiry,
easily
finds that the infor-
vant
that burden is not
relevant,
met.")
sought by
agency
(quoting
& Exch.
mation
we will
Securities
Comm'n v.
Co.,
(2d
Brigadoon
clearly
Distrib.
Scotch
Why prices so are drafting of memoranda through research and petroleum gasoline and other of volumes Additionally, the court struck reports." or Are here in Alaska? refined products are - confusing requests in accor vague refin- higher labor or two higher due to prices requirement that demands be prices higher due with the Are dance ing in Alaska? costs excluded Tesoro's adequately specific45 transportation costs to Alas- increased to seope why from the of high, operations in the Far East prices are so gasoline If ka? disagree Tesoro's conten attracting with market forces the CID. We traditional
aren't amendments were su compete for the court's Alaska to tions companies to superior court's modifications large margins? perficial. The abnormally With these scope actually the wide of gasoline has show that it balanced high prices, why such compliance Alaska, of with the burden instead shipped out of been to Tesoro.46 highest re- Alaskans for being sold to agree- Are there price in the nation? tail Furthermore, citation of Tesoro's companies not place ments in between City unpersuasive. Dallas47is v. Williams altering competition and compete thus Williams, to the In the court did not defer Have the market forces? other natural on the duces tecum issuer of "volumetrically companies divided" relevance, in that case the question of but amongst them- gasoline market Alaska rights litigant.48 As private civil issuer was entry illegal there barriers selves? Are above, questions reasonableness described Or, are there economic market? subpoenas administrative and relevance of explained identified and that can be factors analyzed showing ap duces tecum must be gasoline prices driving Alaska's that are the administrative en propriate deference to through the roof? tity issuing demand. the document gave appropriate deference
Because it possible anti That this case involves investigation, the su- State's definition holding violations also militates toward trust its discretion perior court did not abuse findings regarding superior court's broad, CID, was not while holding that clearly gen are not erroneous. the CID light oppressive in unreasonable eral, allowing "policy there is a liberal investigation. breadth of the 49 "Particularly discoveryin antitrust cases." the CID sub- That the court modified monopoli allegations conspiracy or where prop- ways speaks to the court's stantial also case, involved," "broad are zation The court modified er of its discretion. use evidence discovery be needed to uncover originally covered Instruction No. design, pattern or intent." of invidious apply only "per- personnel, all Tesoro authority, making signif- with decision sonnel scope Temporal marketing, ac- operations, icant control over materials, inves argues that the State's pricing
quisition
disposition of
broad, actually
nominally
Alaska,
tigation, although
strategy, or
gasoline in
and sale of
Maid,
"[almong
prices past years. scope from the 3. Product several argues, citing Tesoro Kellam Ener requests The CID documents relat Duncan,51
gy, Inc. v. that "[clourts have rec "petroleum products," "any defined as ognized temporal subpoe that the limits of a following gasoline, of the fuels: motor fuel na in the antitrust context can be ascertained diesel, oil, No. 2 high low sulfur fuel sulfur period reference to the time of the claims oil, oil, fuel, heating jet jet fuel, fuel 'JP4 at issue." seope Based the limited gas, aviation oil and marine die bunker/fuel investigation, suggests Tesoro the time argues sel." Tesoro period of discoverable documents should be only product, gasoline,55" focuses on one years, beyond five State could pertain therefore the only CID should request only "proper documents after a relating product. documents to that showing" According court. Tesoro, two-step approach prevent would judicial Tesoro contends that the statute's imposition expense of undue burden and provisions judiciary's review and the role is permitting attorney gen to Tesoro while weakened if the can control perform duty investigation. eral to its parameters request through its impose two-step ap decline to Tesoro's investigation. own definition of the As Teso- proach; approach statutory such an has no notes, correctly ro interposes AS 45.50.592 rejected by basis and has been courts.52 power of the courts into the administra- attempt portray process protect public tive investiga-
Tesoro's
from unrea-
only concerning
gasoline
tion as
recent
pric-
attorney general.
sonable
demands
Id.
argument,
explained
54. At oral
the State
require
period
"trends
of time.
If we're limit-
52. See In re Sealed
42 F.3d
Case,
1412, 1417
very
period,
ed to a
small
we don't believe that
(D.C.Cir.1994);
Texaco,
Federal Trade Comm'n v.
we'll be able to see the trends that we need to in
(D.C.Cir.1977).
Inc., 555 F.2d
874
order to determine whether or not there are
kind of combinations in restraint
trade."
The
Kellam,
F.Supp.
(citing
616
at 218
Wilder
pointed
State also
to the closure of Chevron's
Enters.,
Inc. v. Allied Artists Pictures
Corp.,
refinery
early
support
in the
1990s as
(4th Cir.1980); Empire Volkswagen,
F.2d 1135
discretionary finding that the CID could reason-
Volkswagen
Inc. v. World-Wide
95 F.R.D.
Corp.,
ably
years.
cover ten
(S.D.N.Y.1982)
Maritime
Cinema
Serv.
Route,
Inc.,
Movies en
mation was only gasoline produc subpoena to cover by considering the burden to not court erred a argues that here similar ts58 Tesoro in rela- producing in these documents Tesoro in should have been ordered modification if the general's burden tion to the requests for relief. accordance with its According to produced. were not documents Tesoro, marginal relevance that docu- "[the holding agree We with State fundamentally pe- different relating to ments a Covey inapt. CoveyOil dealt with in Oil is respect may have with products troleum action; in contrast to an private antitrust vastly gasoline pricing is out- issue of petitioner's investigation, private agency expense weighed the burden More request did not warrant deference. producing in documents will incur such over, clearly opinion indicate the does not date." case. scope products at issue subpoe modificationsto the The trial court's superior court the argument
At oral necessarily anything to do not have na did Tesoro's contention State addressed only range petroleum products includ the issue involved State's subpoena.59 That Tesoro was able ed in the argued that gasoline. The State subpoena discussing a to find a case for information the reason we have asked only gasoline persuade not us does covered barrel, just gasoline a beyond is that here, appropriate a similar ways, course, many de- cut different proof rests particularly where burden hydrocarbons that are pending on the the su We therefore affirm with Tesoro.60 refined parts of the oil are the oil. Some holding that Tesoro must perior court's differently. feel that in order to ex- relating "petroleum prod documents duce margin ... one cut of plain particular in the originally ucts" as defined CID. barrel, what the we have to understand part. companiesdid with the other IV. CONCLUSION explanation of how docu Given the State's Hosie, as outside counsel to petroleum prod Because regarding types
ments
all
State,
authorized
be considered "an
investigation,
the def
should
relate to the
ucts
superior
explanations,56the
purposes of AS
erence due such
employee of the state" for
45.50.592(e),
superior court re-
because the
holding
clearly erroneous. The
court's
is not
58.
at 996.
340 F.2d
at
Case,
56. See In re Sealed
F.3d
Cir.1965),
(10th
over-
viewed and because the court was within its disclosure produced holding the CID was not discretion investigatory to an demand to unreasonable, improper, oppressive, "anyone other than an authorized AFFIRM the court's decision all of the state" unless the who respects. superi- documents consents or unless the permits or court "for cause shown" disc
EASTAUGH, Justice, participating. determining losure.1 what a statute means, defined, "unless otherwise words will MATTHEWS, Justice, dissenting. interpreted taking ordinary, their con firm Is the law retained the state an temporary, meaning."2 common The ordi "employee state" under AS nary, contemporary, meaning and common 45.50,.592(e)? I answer "no" because ordi- "employee the term of the state" "means a nary usage meaning controls the of unde- person employed by paid the state who is terms, statutory "employee" fined in ordi- wage salary but does not include a nary usage person employed means natural hired independent the state to work as an wage salary, for a and the firm meets today's opinion contractor. ..."3 As acknowl Further, neither of these elements. this con- *14 edges, "employee" typically the term "is mu interpreting clusion is consistent with cases a tually "independent exclusiveof the term con statute, protects similar federal better the " 4 material, confidentiality intended of CID and tractor.' "Employee" synonymous with "servant" and is often used in contradistine is not inconsistent with other terms of the "independent statute. tion to contractor." In com- provides part: 1. AS 45.50.592 in relevant however, material that contains trade secrets (a) attorney may presented except general approval not be If the determines that a with the person possession, custody, is in pending or control of a of the court in which the action is evidence, situated, documentary wherever adequate person furnishing after notice to the attorney general the believes to be relevant to the material. an authorized in AS 45.50.590, attorney general may writing the execute in (h) Nothing impairs in this section the au- upon person and cause to be served thority attorney general designee of the or a investigative requiring person demand the lay grand jury before a of this state evidence produce documentary permit the material and concerning a violation of AS 45.50.562- inspection copying. and 45.50.596, power to invoke the of a court (b) Each demand must compel production the evidence before of a grand jury, complaint or to file a civil or crimi- (4) identify employees represen- the state or alleging nal information a violation of AS documentary tatives to the whom material is to 45.50.562-45.50.596. inspection copying. be made available for State v. 272 n. 38 Niedermeyer, (d) may by The demand be served the attor- 2000). Alaska ney general designee or the general.... (e) Documentary produced pursu- person- 3. This definition is contained in the state demand, it, copies ant to a or act, of unless other- 39.25.990(4). nel wise a ordered shown, may produced inspec- cause not be Slip Op. example customary at 537. An the copying by, may tion or nor its contents be exclusivity "employee" of the terms and "inde- to, anyone disclosed other than an authorized pendent contractor" is found in contract en- of the state without the consent of employee tered into state case Hosie, in this with Frost person who the material. How- Large, Attorneys & at Law. Article 8 of the con- ever, under those reasonable terms and condi- provides: 'Independent tract Contractor. The attorney general prescribes, copies tions the [Hosie, Large] any agents contractor Frost & documentary material shall be available for employees of the contractor act in an inde- inspection copying by person pro- who pendent capacity employ- and are not officers or represen- duced the material or an authorized agents performance ees or of the State in the person. attorney general, tative of that The or a this contract." designee, may copies documentary use attorney general designee material as the (Rev, necessary Dictionary "Employee" considers in the 5. Black's Law enforcement of this 4th court; ed.). chapter, including presentation a before 5AG provides that documentary It evidence. performs services usage, person a who
mon an inde employee is either for another seek material which is no demand unreasonable. privileged nor contractor, important factor and an pendent (e) from the other is the disclosure determining one Subsection forbids anyone con retained evidence to right to control employee with Further, authorized state than an word tracting for the services.6 ordinary usage nat "employee" denotes who permission out partnership person rather than ural material.11 duced the disclosure to prohibiting corporation.7 Concerning limitations the Governor these than an authorized "anyone other wrote: usage is in legislature's the state" the [dealing theory with behind Article 3 meaning "employee" with the accordance at investigatory powers] provide is to partic In this case the person. natural as a needs, power he torney general with the with which we independent contractor ular provide procedural detailed but also to Francisco law private is a San are concerned prevent unfair and arbi will controls which Attorneys firm, Hosie, Large, at & Frost attorney general. trary action See dispute that "one There is no Law. con prescribes the bill [.592] tion as an commonly of outside counsel think and establishes limits on tents of a demand the rule that 'employee'...."8 Based on seopeofthe demand.12 the breadth and interpreted accordance words should be similarity Governor Hammond also noted meaning, I ordinary their and common with proposed bill federal law and the between Hosie, Attorneys Large, Frost & believe that power compel respect to the Law, employee of the state" "an at is not 45.50.592(e). production of documents: "Article 3 of under AS power grants bill was enacted 45.50.592 Alaska Statute *15 and testi compel production of documents to prohibit act comprehensive part 1975 as of mony prior filing an action in court. Sev to monopolies restraint ing and combinations provisions. eral states have enacted similar Hammond's letter to of trade.9 Governor government also has similar The federal transmitting the bill Speaker the House of compel production of documents...." powers it clear that the this act makes that became 13 federal law.10 Gov patterned bill is on prohibited of the dis now section .592 Federal law as 1975 noted that what is ernor produced protections material procedural closure of contained a number "by any investigative demand limitations: to an and lines for the contents person, where the material method of Section [592] serving the demand establishes of the demand specific guide demanded is upon a individual cer, member, of Justice." 1976. Section other than a 14 This employee 1818(c) was duly changed of 15 U.S.C. was authorized offi Department somewhat 53, SLA 1975. 9. See ch. 843 P.2d Stewart, 6. See Bobich v. 1992); (Alaska McClure, Sievers (Alaska 1987) ("[In determining whether a provisions of this bill follow 10. 'The substantive independent employee con an or an closely language corresponding federal tractor, right closely important advantage using language is the most factor law. The by paralleling means which the laws is that a control the manner and the federal anti-trust language body interpreting large case law performed."). work is to be already House Journal in existence." 156. Dictionary 7. New International Webster's Third (1966) employed employee: "1: one added). (emphasis 11. 1975 House Journal 158 usually position below the executive another in a wages usually 2: in relations: level and labor salary wages to an worker who is under Id. at 160. by agreement employer excluded and who is not a worker." from consideration as such Id. 1313(c) (1970). § Slip Op. 14. 15 U.S.C. at 539. independent my
divided into four subsections. The third sub- contractors. view we should do likwise.19 should do likewise." prohibited the disclosure of documen- section
tary "any than a material to individual other Interpreting "employee of the state" in duly employee authorized official or .592(e) ordinary subsection to have its mean Department of Justice." policy is consistent with the of the act 1813(c) necessary
Both of these versions of section not create does conflicts with imposing provisions interpreted were courts as other of the act. In his letter of prohibition firm on the disclosure of transmittal Governor Hammond mentions procedural imposed "detailed controls" employed duced materials to individuals not Department investigatory of Justice. Thus in AL demands. One such control Justice, Department COAv. United States is inherent in the distinction between em concerning ployees independent By the court observed the 1970 ver contractors. '1818(c); terms, respective
sion of section "The statute definition the state absolutely prohibited par greater disclosure to third has much control over the actions of "15 Corp. ties ...." In United States v. GAF employees its than it does over the actions of similarly Moreover, interpreted independent district contractors. inde 1318(c) language preclude pendent many of section contractors serve mas anyone simultaneously, "by employees examination of material ters while state "* Department outside the of Justice.16 On only Independent work the state. con tractors thus can have collateral uses for appeal in the same case the Second Circuit 1818(c)(8) interpreted § pre investigatorily U.S.C. demanded information and they may tempted clude disclosure of CID materials outside be to use such informat Department: contrast, provides employees,by "That subsection ion.20 State are less likely to be able to use CID information in no material obtained CID be made others, by anyone they available for examination the service of are thus not " Department than the Justice.17 And in subject temptations to the same indepen v. AT T United States & the court stated dent contractors. 1818(c)(8) "specifically prohibits
that section Another control is inherent the fact that persons disclosure of CID person, is a natural whereas "18 Department." members the Justice independent partnerships contractors Thus, turn, interpreting corporations having, many courts "authorized em- em- *16 ployee" language ployees. in legally practically the federal statute on Both employee" language ability which the "authorized in state has more to control the activities patterned interpret- employees state statute is have of its actual than it does the em- independent ployees of its contractors. language employees, ed that to refer to not independent attorneys (D.D.C.1978) (em- clude contractor retained 15. 444 1342, 1344 F.Supp. by Department added). Justice. See U.S.C. phasis 1311() ("Agent" § "includes retained any person Department (S.D.N.Y.1978). of Justice in connection with F.Supp. 16. 449 laws."). the enforcement of the anti-trust In the Congress 1980 amendment also made 17. United v. GAF 596 F.2d States Corp., "agent" subject penalties to criminal for disclo- Cir.1979) added), (2d (emphasis reversing on sure of confidential information. 18 U.S.C. See grounds opinion. other the district court § 1905. (D.D.C.1979) (emphasis 18. 86 FRD. added). indepen- 20. Concern about collateral uses that dent contractors have for CID materials is more than theoretical in this case. Tesoro ar- Congress amended section 1313 for a third gued Spencer before the court that Ho- time in 1980. In the 1980 amendments permitted those who view class of CID ma- sie, Hosie, one of the Frost & Large, partners acting attorney expanded is as the for the State of Hawaii "duly terial is to include authorized against agent{s] Department brought in ... well an anti-trust suit Tesoro. Justice" as obtain, employees suggested department. Counsel that Hosie will under as officials and 1313(c)(3) (1980). "Agent" § See 15 U.S.C. in CID, the Alaska that was denied him by litigation. enough in turn was defined terms broad to in- a court in the Hawaii (e) pro of subsection The final sentence in Construing "employee of the state" its attorney general or his des- mean an end to the vides ordinary would not sense "may ignee copies use attorney general of coun- outside use necessary in the considers mate- material as he mean is that before it would sel. What chapter, including pre personnel enforcement of this to
rial be disclosed There is a a court...." by contracting law firms the attor- sentation before employed provision and the dis showing good between this tension ney general must make closure-restrictingprovision of the first sen sentence of AS under the first cause (e) if the use 45,50.592(e). justify hiring What tence of subsection The reasons attorney general in upon by the generally decided might well suffice outside counsel employees? volves disclosure to non-state justify But cause to disclosure. how "em tension exists no matter give target company an But this
hearing would is defined. Similar ployee of the state" case-specific give reasons opportunity in version of the existed the 1976 tension disclosure, depending on the oppose the 1318(d) § cireumstances, might impose spe- federal act. Under U.S.C. the court appear any in attorney designated to case safeguards in connection cial conditions "in proceeding could use CID material with the disclosure. ... or such case connection Construing "employee the state" to have ceeding determines to be as such conflict ordinary meaning also does not its language greatly dif required." This "designee" language the last sen
with the discretionary from the ferent (e). This sentence autho tence of subsection granted in the fourth sentence of subsection appoint attorney general a "des- rizes the (e) ("use designee ... ... as the considers imply ignee." But does not this chap necessary in the enforcement of this qualify designee must not also as ter"). provision presence But the of this may lawfully made. whom be disclosure giv prevent the federal courts from did not that each be construed so Statutes should to "authorized interpretation a literal reasonably meaning possi if term has (c)(8).22 employee" . in subsection one term ne ble. Constructions gates avoided.21 Thus the another are to be presumptuous It this dissent would be possible ramifica appoint try to work out all the power way interplay provisions in a tions of the between designee not be construed should the first and last sentences of subsection protection built into the that eliminates 592(e). key But I that one to under limitations ex believe statute the disclosure they standing how interact is found pressed in of subsection the first sentence (e). relates to enforce readily accomplished fact that the final sentence This can (e) into four requiring that ment. The 1975 act is divided construing subsection Provisions," designee "Article 1. Substantive attorney general's be a articles: Provisions," Article material. "Article 2. Enforcement qualifies who for disclosure of CID Powers," "Investigatory and "Article words, designee must either be *17 or a autho General Provisions." an authorized The final sentence of .592(e) limited to uses for "en a court order subsection rized to receive disclosures following showing good cause. Similar apply, given Thus it forcement." ly, "representatives" act, used sub investigative pro term structure of the (b)(4) mean, article of ceedings if conducted under the third should all the terms section the act.23 this construction there Under harmonized, are to be either au the statute employees persons authorized necessary thorized clause conflict between the use no (e) and of the final sentence of subsection a court to receive disclosures. (3). of subsection This in the final sentence Hutchinson,
21. See In re Estate of 1978). language independently suggests (Alaska that the broader 1075-76 permitted to en- that are must be related uses supra, p. See cases cited proceedings. forcement supported by 23. Such a construction is also language presentation before a court" "including employee" in the
interpreting "authorized restricting clause of the first sen-
disclosure employees. only to actual state
tence to refer outside the circle of authorized
Disclosure employees the use is authorized under
state if a case reaches the enforcement
clause
stage, but not until then. summary, "employee I believe that 45.50.592(e)
the state" should be con- meaning
strued to communicate the "employee convey in
term of the state" would
ordinary usage. and common As so con- .592(e)
strued, subsection would bar the dis- approval
closure without court of CID docu- firm
ments to a law with a contract
state. For these reasons I would reverse the
decision of the court and remand hearing whether
this case for a to determine
there is cause to disclose Tesoro's ree- firm
ords to the law retained state
this case. JUSTICE, Appellant/Cross-
Dan B.
Appellee, LOGGING, INC.,
RMH AERO Companies, Insurance
Wausau
Appellees/Cross-Appellants. S-9513,
Nos. S-9544.
Supreme Court of Alaska.
Feb.