§ 9-1.1-6 - Subpoenas.
SECTION 9-1.1-6
§ 9-1.1-6 Subpoenas. – (a) In general:
(1) Issuance and service. Whenever the attorneygeneral has reason to believe that any person may be in possession, custody, orcontrol of any documentary material or information relevant to aninvestigation, the attorney general may, before commencing a civil proceedingunder this act, issue in writing and cause to be served upon such person, asubpoena requiring such person:
(A) To produce such documentary material for inspection andcopying,
(B) To answer, in writing, written interrogatories withrespect to such documentary material or information,
(C) To give oral testimony concerning such documentarymaterial or information, or
(D) To furnish any combination of such material, answers, ortestimony.
The attorney general may delegate the authority to issuesubpoenas under this subsection (a) to the sate police subject to conditions asthe attorney general deems appropriate. Whenever a subpoena is an expressdemand for any product of discovery, the attorney general or his or herdelegate shall cause to be served, in any manner authorized by this section, acopy of such demand upon the person from whom the discovery was obtained andshall notify the person to whom such demand is issued of the date on which suchcopy was served.
(2) Where a subpoena requires the production of documentarymaterial, the respondent shall produce the original of the documentarymaterial, provided, however, that the attorney general may agree that copiesmay be substituted for the originals. All documentary material kept or storedin electronic form, including electronic mail, shall be produced in hard copy,unless the attorney general agrees that electronic versions may be substitutedfor the hard copy. The production of documentary material shall be made at therespondent's expense.
(3) Contents and deadlines. Each subpoena issuedunder paragraph (1):
(A) Shall state the nature of the conduct constituting analleged violation that is under investigation and the applicable provision oflaw alleged to be violated.
(B) Shall identify the individual causing the subpoena to beserved and to whom communications regarding the subpoena should be directed.
(C) Shall state the date, place, and time at which the personis required to appear, produce written answers to interrogatories, producedocumentary material or give oral testimony. The date shall not be less thanten (10) days from the date of service of the subpoena. Compliance with thesubpoena shall be at the office of the attorney general.
(D) If the subpoena is for documentary material orinterrogatories, shall describe the documents or information requested withspecificity.
(E) Shall notify the person of the right to be assisted bycounsel.
(F) Shall advise that the person has twenty (20) days fromthe date of service or up until the return date specified in the demand,whichever date is earlier, to move, modify, or set aside the subpoena pursuantto subparagraph (j)(2)(A) of this section.
(b) Protected material or information.
(1) In general. A subpoena issued under subsection (a)may not require the production of any documentary material, the submission ofany answers to written interrogatories, or the giving of any oral testimony ifsuch material, answers, or testimony would be protected from disclosure under:
(A) The standards applicable to subpoenas or subpoenas ducestecum issued by a court of this state to aid in a grand jury investigation; or
(B) The standards applicable to discovery requests under theRhode Island superior court rules of civil procedure, to the extent that theapplication of such standards to any such subpoena is appropriate andconsistent with the provisions and purposes of this section.
(2) Effect on other orders, rules, and laws. Any suchsubpoena which is an express demand for any product of discovery supersedes anyinconsistent order, rule, or provision of law (other than this section)preventing or restraining disclosure of such product of discovery to anyperson. Disclosure of any product of discovery pursuant to any such subpoenadoes not constitute a waiver of any right or privilege which the person makingsuch disclosure may be entitled to invoke to resist discovery of trialpreparation materials.
(c) Service in general. Any subpoena issued undersubsection (a) may be served by any person so authorized by the attorneygeneral or by any person authorized to serve process on individuals withinRhode Island, through any method prescribed in the Rhode Island superior courtrules of civil procedure or as otherwise set forth in this chapter.
(d) Service upon legal entities and natural persons.
(1) Legal entities. Service of any subpoena issuedunder subsection (a) or of any petition filed under subsection (j) may be madeupon a partnership, corporation, association, or other legal entity by:
(A) Delivering an executed copy of such subpoena or petitionto any partner, executive officer, managing agent, general agent, or registeredagent of the partnership, corporation, association or entity;
(B) Delivering an executed copy of such subpoena or petitionto the principal office or place of business of the partnership, corporation,association, or entity; or
(C) Depositing an executed copy of such subpoena or petitionin the United States mails by registered or certified mail, with a returnreceipt requested, addressed to such partnership, corporation, association, orentity as its principal office or place of business.
(2) Natural person. Service of any such subpoena orpetition may be made upon any natural person by:
(A) Delivering an executed copy of such subpoena or petitionto the person; or
(B) Depositing an executed copy of such subpoena or petitionin the United States mails by registered or certified mail, with a returnreceipt requested, addressed to the person at the person's residence orprincipal office or place of business.
(e) Proof of service. A verified return by theindividual serving any subpoena issued under subsection (a) or any petitionfiled under subsection (j) setting forth the manner of such service shall beproof of such service. In the case of service by registered or certified mail,such return shall be accompanied by the return post office receipt of deliveryof such subpoena.
(f) Documentary material.
(1) Sworn certificates. The production of documentarymaterial in response to a subpoena served under this Section shall be madeunder a sworn certificate, in such form as the subpoena designates, by:
(A) In the case of a natural person, the person to whom thesubpoena is directed, or
(B) In the case of a person other than a natural person, aperson having knowledge of the facts and circumstances relating to suchproduction and authorized to act on behalf of such person. The certificateshall state that all of the documentary material required by the demand and inthe possession, custody, or control of the person to whom the subpoena isdirected has been produced and made available to the attorney general.
(2) Production of materials. Any person upon whom anysubpoena for the production of documentary material has been served under thissection shall make such material available for inspection and copying to theattorney general at the place designated in the subpoena, or at such otherplace as the attorney general and the person thereafter may agree and prescribein writing, or as the court may direct under subsection (j)(1). Such materialshall be made so available on the return date specified in such subpoena, or onsuch later date as the attorney general may prescribe in writing. Such personmay, upon written agreement between the person and the attorney general,substitute copies for originals of all or any part of such material.
(g) Interrogatories. Each interrogatory in a subpoenaserved under this section shall be answered separately and fully in writingunder oath and shall be submitted under a sworn certificate, in such form asthe subpoena designates by:
(1) In the case of a natural person, the person to whom thesubpoena is directed, or
(2) In the case of a person other than a natural person, theperson or persons responsible for answering each interrogatory. If anyinterrogatory is objected to, the reasons for the objection shall be stated inthe certificate instead of an answer. The certificate shall state that allinformation required by the subpoena and in the possession, custody, control,or knowledge of the person to whom the demand is directed has been submitted.To the extent that any information is not furnished, the information shall beidentified and reasons set forth with particularity regarding the reasons whythe information was not furnished.
(h) Oral examinations.
(1) Procedures. The examination of any person pursuantto a subpoena for oral testimony served under this section shall be takenbefore an officer authorized to administer oaths and affirmations by the lawsof this state or of the place where the examination is held. The officer beforewhom the testimony is to be taken shall put the witness on oath or affirmationand shall, personally or by someone acting under the direction of the officerand in the officer's presence, record the testimony of the witness. Thetestimony shall be taken stenographically and shall be transcribed. When thetestimony is fully transcribed, the officer before whom the testimony is takenshall promptly transmit a certified copy of the transcript of the testimony inaccordance with the instructions of the attorney general. This subsection shallnot preclude the taking of testimony by any means authorized by, and in amanner consistent with, the Rhode Island superior court rules of civilprocedure.
(2) Persons present. The investigator conducting theexamination shall exclude from the place where the examination is held allpersons except the person giving the testimony, the attorney for and any otherrepresentative of the person giving the testimony, the attorney for the state,any person who may be agreed upon by the attorney for the state and the persongiving the testimony, the officer before whom the testimony is to be taken, andany stenographer taking such testimony.
(3) Where testimony taken. The oral testimony of anyperson taken pursuant to a subpoena served under this section shall be taken inthe county within which such person resides, is found, or transacts business,or in such other place as may be agreed upon by the attorney general and suchperson.
(4) Transcript of testimony. When the testimony isfully transcribed, the attorney general or the officer before whom thetestimony is taken shall afford the witness, who may be accompanied by counsel,a reasonable opportunity to review and correct the transcript, in accordancewith the rules applicable to deposition witnesses in civil cases. Upon paymentof reasonable charges, the attorney general shall furnish a copy of thetranscript to the witness, except that the attorney general may, for goodcause, limit the witness to inspection of the official transcript of thewitness' testimony.
(A) Any person compelled to appear for oral testimony under asubpoena issued under subsection (a) may be accompanied, represented, andadvised by counsel, who may raise objections based on matters of privilege inaccordance with the rules applicable to depositions in civil cases. If suchperson refuses to answer any question, a petition may be filed in superiorcourt under subsection (j)(1) for an order compelling such person to answersuch question.
(B) If such person refuses any question on the grounds of theprivilege against self-incrimination, the testimony of such person may becompelled in accordance with rules of criminal procedure.
(6) Witness fees and allowances. Any person appearingfor oral testimony under a subpoena issued under subsection 9-1.1-6(a) shall beentitled to the same fees and allowances which are paid to witnesses in thesuperior court.
(7) Custodians of documents, answers, and transcripts.
(A) Designation. The attorney general or his or herdelegate shall serve as custodian of documentary material, answers tointerrogatories, and transcripts of oral testimony received under this section.
(B) Except as otherwise provided in this section, nodocumentary material, answers to interrogatories, or transcripts of oraltestimony, or copies thereof, while in the possession of the custodian, shallbe available for examination by any individual, except as determined necessaryby the attorney general and subject to the conditions imposed by him or her foreffective enforcement of the laws of this state, or as otherwise provided bycourt order.
(C) Conditions for return of material. If anydocumentary material has been produced by any person in the course of anyinvestigation pursuant to a subpoena under this section and:
(i) Any case or proceeding before the court or grand juryarising out of such investigation, or any proceeding before any state agencyinvolving such material, has been completed, or
(ii) No case or proceeding in which such material may be usedhas been commenced within a reasonable time after completion of the examinationand analysis of all documentary material and other information assembled in thecourse of such investigation, the custodian shall, upon written request of theperson who produced such material, return to such person any such materialwhich has not passed into the control of any court, grand jury, or agencythrough introduction into the record of such case or proceeding.
(j) Judicial proceedings.
(1) Petition for enforcement. Whenever any personfails to comply with any subpoena issued under subsection (a), or wheneversatisfactory copying or reproduction of any material requested in such demandcannot be done and such person refuses to surrender such material, the attorneygeneral may file, in the superior court of the county in which such personresides, is found, or transacts business, or the superior court in the hecounty in which an action filed pursuant to § 9-1.1-4 is pending if theaction relates to the subject matter of the subpoena and serve upon such persona petition for an order of such court for the enforcement of the subpoena.
(A) Any person who has received a subpoena issued undersubsection (a) may file, in the superior court of any county within which suchperson resides, is found, or transacts business, and serve upon the attorneygeneral a petition for an order of the court to modify or set aside suchsubpoena. In the case of a petition addressed to an express demand for anyproduct of discovery, a petition to modify or set aside such demand may bebrought only in the superior court of the county in which the proceeding inwhich such discovery was obtained is or was last pending. Any petition underthis subparagraph (a) must be filed:
(i) Within twenty (20) days after the date of service of thesubpoena, or at any time before the return date specified in the subpoena,whichever date is earlier, or
(ii) Within such longer period as may be prescribed inwriting by the attorney general.
(B) The petition shall specify each ground upon which thepetitioner relies in seeking relief under subparagraph (a), and may be basedupon any failure of the subpoena to comply with the provisions of this sectionor upon any constitutional or other legal right or privilege of such person.During the pendency of the petition in the court, the court may stay, as itdeems proper, the running of the time allowed for compliance with the subpoena,in whole or in part, except that the person filing the petition shall complywith any portion of the subpoena not sought to be modified or set aside.
(3) Petition to modify or set aside demand for product ofdiscovery. In the case of any subpoena issued under subsection (a) which is anexpress demand for any product of discovery, the person from whom suchdiscovery was obtained may file, in the superior court of the county in whichthe proceeding in which such discovery was obtained is or was last pending, apetition for an order of such court to modify or set aside those portions ofthe subpoena requiring production of any such product of discovery, subject tothe same terms, conditions, and limitations set forth in subparagraph (j)(2) ofthis section.
(4) Jurisdiction. Whenever any petition is filed inany superior court under this subsection (j), such court shall havejurisdiction to hear and determine the matter so presented, and to enter suchorders as may be required to carry out the provisions of this section. Anyfinal order so entered shall be subject to appeal in the same manner as appealsof other final orders in civil matters. Any disobedience of any final orderentered under this section by any court shall be punished as a contempt of thecourt.
(k) Disclosure exemption. Any documentary material,answers to written interrogatories, or oral testimony provided under anysubpoena issued under subsection (a) shall be exempt from disclosure under theRhode Island access to public records law, § 38-2-2.