§ 40-8.2-14 - Investigative demand.
SECTION 40-8.2-14
§ 40-8.2-14 Investigative demand. –(a) Demand. (1) The attorney general or his or her designatedassistant attorney general shall have the power to issue a subpoena or subpoenaduces tecum.
(2) Whenever the attorney general has reasonable cause tobelieve that any person may have knowledge or be in possession, custody, orcontrol of any documentary material, pertinent to an investigation of apossible violation of this chapter, the attorney general may issue in writingand cause to be served upon the person an investigative demand by which he orshe may:
(i) Compel the attendance of the person and require him orher to submit to examination and give testimony under oath; and/or
(ii) Require the production of documentary material pertinentto the investigation for inspection or copying; and/or
(iii) Require an answer to written interrogatories to befurnished under oath. The power to issue investigative demands shall not abateor terminate by reason of the bringing of any action or proceeding under thischapter. The attorney general may issue successive investigative demands to thesame person in order to obtain additional information pertinent to an ongoinginvestigation.
(3) The civil investigative demands shall be filed in thesuperior court of the county in which the person served with the demand shalldwell or have his or her principal place of business.
(b) Contents of Investigative Demand. Eachinvestigative demand shall:
(1) State the section or sections of the chapter, the allegedviolation of which is under investigation, and the general subject matter ofthis investigation;
(2) Prescribe a reasonable return date no less than forty(40) days after service of the investigative demand, provided that an earlierdate may be prescribed under compelling circumstances, but in no event lessthan twenty (20) days;
(3) Specify the time and place at which the person is toappear and give testimony, produce documentary material, and furnish answers tointerrogatories or do any or a combination of the aforesaid;
(4) Describe by class any documentary material required to beproduced, so as to clearly indicate what is demanded; and
(5) Contain any interrogatories to which written answersunder oath are required.
(c) Prohibition Against Unreasonable Demand. Noinvestigative demand shall:
(1) Contain any requirement which would be unreasonable orimproper if contained in a subpoena issued by a court of this state; or
(2) Require the disclosure of any material or informationwhich would be privileged, or which for any other reason would not be requiredto be disclosed by a subpoena issued by a court of this state, including, butnot limited to, trade secrets or confidential scientific, technical,merchandising, production, management, or commercial information, to the extentthat the same are protected pursuant to the Rhode Island rules of civilprocedure.
(d) Offer of Documentary Evidence. Where theinformation requested upon oral examination or written interrogatory pursuantto an investigative demand may be derived or ascertained from the businessrecords of the person upon whom the demand has been served or from anexamination, audit, or inspection of the business records, or from acompilation, abstract, or summary based thereon, and the burden of deriving orascertaining the answer is substantially the same for the attorney general asfor the person from whom the information is requested, it is sufficient forthat person to specify the records from which the answer may be derived orascertained, and to afford the attorney general reasonable opportunity toexamine, audit, or inspect the records and to make copies, compilations,abstracts, or summaries.
(e) Service of Investigative Demand. An investigativedemand may be served by any means provided under the Rhode Island rules ofcivil procedure for service of a complaint in a civil action.
(f) Motion to Quash. Within twenty (20) days after theservice of an investigative demand or at any time before the return datespecified therein, which ever period is shorter, the person served may file ina state superior court and serve upon the attorney general a petition for anorder of court modifying or setting aside the demand. The time allowed forcompliance in whole or in part with the demand as deemed proper and ordered bythe court, shall not run while the petition is pending before the court. Thepetition shall specifiy each ground upon which the petitioner relies in seekingrelief, and may be based upon any failure of the demand to comply with theprovisions of this chapter or upon any contitutional or other legal right,privilege, or qualified privilege of the party, including that the material orinformation sought constitutes trade secrets or confidential scientific,technical, merchandising, production, management, or commercial information. Ifqualified privilege is raised, the court may order the person to comply withthe demand only upon a showing of particularized need and subject to anappropriate protective order. The provisions of this subsection shall be thesole and exclusive means for challenging the requirements of the demand.
(g) Those Authorized to Examine. The examinations ofall persons pursuant to this section shall be conducted by the attorney generalor his or her designee before an officer authorized to administer oaths in thisstate. The statement made shall be taken down stenographically or by asound-recording device and shall be transcribed.
(h) Right of Persons Served with InvestigativeDemands. (1) Any person required to attend and give testimony or to submitdocumentary material pursuant to this section shall be entitled to retain, oron payment of a lawfully prescribed cost, to procure a copy of any document heor she produces and of his or her own statements as transcribed.
(2) Any person compelled to appear under a demand for oraltestimony pursuant to this section may be accompanied, represented, and advisedby counsel. Counsel may advise the person in confidence, upon the request ofthe person. The person or counsel may object on the record to any question, inwhole or in part, and shall briefly state for the record the reason for theobjection. An objection may properly be made, received, and entered upon therecord when it is claimed that the person is entitled to refuse to answer thequestion on grounds of any constitutional or other legal right or privilege,including the privilege against self-incrimination. The person shall nototherwise object to or refuse to answer any question, and shall not by himselfor herself or through counsel otherwise interrupt the oral examination. If theperson refuses to answer any question, the attorney general may petition thesuperior court for an order compelling such person to answer the question.
(3) The information and materials supplied to the attorneygeneral pursuant to an investigative demand shall not be permitted to becomepublic or be disclosed by the attorney general or his or her employees beyondthe extent necessary for enforcement purposes in the public interest.
(4) Upon the completion of a case brought under this chapter,the attorney general shall return any documents, answers, and transcripts, andall copies thereof, which have not passed into the control of the court throughthe introduction thereof into the record, to the person who provided thedocuments, answers, or testimony. If no case in which the material may be usedhas been commenced within a reasonable time after completion of the examinationor analysis of all documentary material, but in no event later than two (2)years after production thereof, the attorney general shall, upon writtenrequest of the person who produced the material, return all documents, answers,and transcripts, and all copies thereof, to the person who provided them.
(5) The attorney general shall have the authority, at anytime, to modify or revoke any investigative demand and to stipulate toprotective orders with respect to documents and information submitted inresponse to a demand. The protective orders shall include provisionsappropriate to the full and adequate protection of confidential health careinformation pursuant to chapter 37.3 of title 5.
(i) Witness Expenses. All persons served with aninvestigative demand, other than those persons whose conduct or practices arebeing investigated or any officer, director, or person in the employment of aperson under investigation shall be paid the same fees and mileage as paidwitnesses in the courts of this state. No person shall be excused fromattending the inquiry pursuant to the mandate of an investigative demand orfrom giving testimony or from producing documentary material or from beingrequired to answer questions on the ground of failure to tender or pay awitness fee or mileage, unless demand therefore is made at the time testimonyis about to be taken or unless payment thereof is not thereupon made.
(j) Refusal of Witness to Testify or ProduceDocuments. Any person who shall neglect or refuse to attend and givetestimony or to answer any lawful inquiry or to produce documentary material,if in his or her power to do so, in obedience to any investigative demandpursuant to this section, may be adjudged in civil contempt by the superiorcourt until such time as he or she purges himself or herself of contempt bytestifying, producing documentary material, or presenting written answers asordered. Any person who commits perjury or false swearing in response to aninvestigative demand pursuant to this section shall be punished pursuant to theprovisions of chapter 33 of title 11.
(k) Duty to Testify – Immunity. (1) If, in anyinvestigation brought by the attorney general pursuant to this section, anyindividual shall refuse to attend or to give testimony or to producedocumentary material or to answer a written interrogatory in obedience to aninvestigative demand or under order of court on the ground that the testimonyor material required of him or her may tend to incriminate him or her, thatperson may be ordered to attend and to give testimony or to produce documentarymaterial or to answer the written interrogatory, or to do an applicablecombination of these pursuant to § 12-17-15. The order described in thissubdivision shall be an order of court given after hearing in which theattorney general has established a need for the grant of immunity, ashereinafter provided.
(2) The attorney general may petition for an order asdescribed in subsection (k)(1) for any investigation pursuant to this chapter.The petition shall set forth the nature of the investigation and the need forthe immunization of any witness.
(3) Testimony so compelled shall not be used against thewitness as evidence in any criminal proceedings against him or her in anycourt. The grant of immunity shall not immunize the witness from civilliability arising from the transactions about which testimony is given, and heor she may nevertheless be presented or subjected to penalty or forfeiture forany perjury, false swearing, or contempt committed in answering or in failingto answer or in producing evidence or failing to do so in accordance with theorder. The foregoing shall not prevent the attorney general from institutingother appropriate contempt proceedings against any person who violates any ofthe above provisions.
(l) Duty of Public Officials. It shall be the duty ofall officials of this state and its public bodies, their deputies, assistants,clerks, subordinates, or employees, and all other persons to reorder andfurnish to the attorney general when so requested, all information andassistance in their possession or within their power.