2012 -- H 7950 SUBSTITUTE A

=======

LC01449/SUB A

=======

STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

____________

A N A C T

RELATING TO COURTS AND CIVIL PROCEDURE - FALSE CLAIM ACT

     Introduced By: Representatives DeSimone, Slater, and Carnevale

     Date Introduced: March 14, 2012

     Referred To: House Judiciary

It is enacted by the General Assembly as follows:

1-1

     SECTION 1. Sections 9-1.1-2, 9-1.1-4, 9-1.1-6 and 9-1.1-8 of the General Laws in

1-2

Chapter 9-1.1 entitled "The State False Claim Act" are hereby amended to read as follows:

1-3

     9-1.1-2. Definitions. -- As used in this chapter:

1-4

      (a) "State" means the state of Rhode Island; any agency of state government; and any

1-5

political subdivision meaning any city, town, county or other governmental entity authorized or

1-6

created by state law, including public corporations and authorities.

1-7

      (b) "Guard" means the Rhode Island National Guard.

1-8

      (c) "Investigation" means any inquiry conducted by any investigator for the purpose of

1-9

ascertaining whether any person is or has been engaged in any violation of this chapter.

1-10

      (d) "Investigator" means a person who is charged by the Rhode Island attorney general, a

1-11

solicitor, or his or her designee with the duty of conducting any investigation under this act, or

1-12

any officer or employee of the State acting under the direction and supervision of the department

1-13

of attorney general.

1-14

      (e) "Documentary material" includes the original or any copy of any book, record, report,

1-15

memorandum, paper, communication, tabulation, chart, or other document, or data compilations

1-16

stored in or accessible through computer or other information retrieval systems, together with

1-17

instructions and all other materials necessary to use or interpret such data compilations, and any

1-18

product of discovery.

1-19

      (f) "Custodian" means the custodian, or any deputy custodian, designated by the attorney

1-20

general or a solicitor under section 9-1.1-6 of the Rhode Island general laws.

2-1

      (g) "Product of discovery" includes:

2-2

      (1) The original or duplicate of any deposition, interrogatory, document, thing, result of

2-3

the inspection of land or other property, examination, or admission, which is obtained by any

2-4

method of discovery in any judicial or administrative proceeding of an adversarial nature;

2-5

      (2) Any digest, analysis, selection, compilation, or derivation of any item listed in

2-6

paragraph (1); and

2-7

      (3) Any index or other manner of access to any item listed in paragraph (1).

2-8

     (7) “Solicitor” means a municipality, acting through its city or town solicitor or other

2-9

duly appointed legal counsel.

2-10

     9-1.1-4. Civil actions for false claims. -- (a) Responsibilities of the attorney general and

2-11

solicitor. - The attorney general or solicitor diligently shall investigate a violation under section 9-

2-12

1.1-3 of this section. If under this section the attorney general or solicitor finds that a person has

2-13

violated or is violating section 9-1.1-3 the attorney general or solicitor may bring a civil action

2-14

under this section against the person.

2-15

      (b) Actions by private persons.

2-16

      (1) A person may bring a civil action for a violation of section 9-1.1-3 for the person and

2-17

for the state. The action shall be brought in the name of the state. The action may be dismissed

2-18

only if the court and the attorney general give written consent to the dismissal and their reasons

2-19

for consenting.

2-20

      (2) A copy of the complaint and written disclosure of substantially all material evidence

2-21

and information the person possesses shall be served on the state upon the attorney general. The

2-22

complaint shall be filed in camera, shall remain under seal for at least sixty (60) days, and shall

2-23

not be served on the defendant until the court so orders. The state may elect to intervene and

2-24

proceed with the action within sixty (60) days after it receives both the complaint and the material

2-25

evidence and information.

2-26

      (3) The state may, for good cause shown, move the court for extensions of the time

2-27

during which the complaint remains under seal under paragraph (2). Any such motions may be

2-28

supported by affidavits or other submissions in camera. The defendant shall not be required to

2-29

respond to any complaint filed under this section until twenty (20) days after the complaint is

2-30

unsealed and served upon the defendant.

2-31

      (4) Before the expiration of the sixty (60) day period or any extensions obtained under

2-32

paragraph (3), the state shall:

2-33

      (A) Proceed with the action, in which case the action shall be conducted by the state; or

3-34

      (B) Notify the court that it declines to take over the action, in which case the person

3-35

bringing the action shall have the right to conduct the action.

3-36

      (5) When a person brings an action under this subsection (b), no person other than the

3-37

state may intervene or bring a related action based on the facts underlying the pending action.

3-38

      (c) Rights of the parties to Qui Tam actions.

3-39

      (1) If the state proceeds with the action, it shall have the primary responsibility for

3-40

prosecuting the action, and shall not be bound by an act of the person bringing the action. Such

3-41

person shall have the right to continue as a party to the action, subject to the limitations set forth

3-42

in paragraph (2).

3-43

      (2) (A) The state may dismiss the action notwithstanding the objections of the person

3-44

initiating the action if the person has been notified by the state of the filing of the motion and the

3-45

court has provided the person with an opportunity for a hearing on the motion.

3-46

      (B) The state may settle the action with the defendant notwithstanding the objections of

3-47

the person initiating the action if the court determines, after a hearing, that the proposed

3-48

settlement is fair, adequate, and reasonable under all the circumstances. Upon a showing of good

3-49

cause, such hearing may be held in camera.

3-50

      (C) Upon a showing by the state that unrestricted participation during the course of the

3-51

litigation by the person initiating the action would interfere with or unduly delay the state's

3-52

prosecution of the case, or would be repetitious, irrelevant, or for purposes of harassment, the

3-53

court may, in its discretion, impose limitations on the person's participation, such as:

3-54

      (i) Limiting the number of witnesses the person may call:

3-55

      (ii) Limiting the length of the testimony of such witnesses;

3-56

      (iii) Limiting the person's cross-examination of witnesses; or

3-57

      (iv) Otherwise limiting the participation by the person in the litigation.

3-58

      (D) Upon a showing by the defendant that unrestricted participation during the course of

3-59

the litigation by the person initiating the action would be for purposes of harassment or would

3-60

cause the defendant undue burden or unnecessary expense, the court may limit the participation

3-61

by the person in the litigation.

3-62

      (3) If the state elects not to proceed with the action, the person who initiated the action

3-63

shall have the right to conduct the action. If the state so requests, it shall be served with copies of

3-64

all pleadings filed in the action and shall be supplied with copies of all deposition transcripts (at

3-65

the state's expense). When a person proceeds with the action, the court, without limiting the status

3-66

and rights of the person initiating the action, may nevertheless permit the State to intervene at a

3-67

later date upon a showing of good cause.

4-68

      (4) Whether or not the state proceeds with the action, upon a showing by the state that

4-69

certain actions of discovery by the person initiating the action would interfere with the state's

4-70

investigation or prosecution of a criminal or civil matter arising out of the same facts, the court

4-71

may stay such discovery for a period of not more than sixty (60) days. Such a showing shall be

4-72

conducted in camera. The court may extend the sixty (60) day period upon a further showing in

4-73

camera that the state has pursued the criminal or civil investigation or proceedings with

4-74

reasonable diligence and any proposed discovery in the civil action will interfere with the

4-75

ongoing criminal or civil investigation or proceedings.

4-76

      (5) Notwithstanding subsection (b), the state may elect to pursue its claim through any

4-77

alternate remedy available to the state, including any administrative proceeding to determine a

4-78

civil money penalty. If any such alternate remedy is pursued in another proceeding, the person

4-79

initiating the action shall have the same rights in such proceeding as such person would have had

4-80

if the action had continued under this section. Any finding of fact or conclusion of law made in

4-81

such other proceeding that has become final shall be conclusive on all parties to an action under

4-82

this section. For purposes of the preceding sentence, a finding or conclusion is final if it has been

4-83

finally determined on appeal to the appropriate court, if all time for filing such an appeal with

4-84

respect to the finding or conclusion has expired, or if the finding or conclusion is not subject to

4-85

judicial review.

4-86

      (d) Award to Qui Tam plaintiff.

4-87

      (1) If the State proceeds with an action brought by a person under subsection 9-1.1-4(b),

4-88

such person shall, subject to the second sentence of this paragraph, receive at least fifteen percent

4-89

(15%) but not more than twenty-five percent (25%) of the proceeds of the action or settlement of

4-90

the claim, depending upon the extent to which the person substantially contributed to the

4-91

prosecution of the action. Where the action is one which the court finds to be based primarily on

4-92

disclosures of specific information (other than information provided by the person bringing the

4-93

action) relating to allegations or transactions in a criminal, civil, or administrative hearing, in a

4-94

legislative, administrative, or Auditor General's report, hearing, audit, or investigation, or from

4-95

the news media, the court may award such sums as it considers appropriate, but in no case more

4-96

than ten percent (10%) of the proceeds, taking into account the significance of the information

4-97

and the role of the person bringing the action in advancing the case to litigation. Any payment to

4-98

a person under the first or second sentence of this paragraph (1) shall be made from the proceeds.

4-99

Any such person shall also receive an amount for reasonable expenses which the court finds to

4-100

have been necessarily incurred, plus reasonable attorneys' fees and costs. The state shall also

4-101

receive an amount for reasonable expenses which the court finds to have been necessarily

4-102

incurred by the attorney general, including reasonable attorneys' fees and costs, and the amount

5-1

received shall be deposited in the false claims act fund created under this chapter. All such

5-2

expenses, fees, and costs shall be awarded against the defendant.

5-3

      (2) If the state does not proceed with an action under this section, the person bringing the

5-4

action or settling the claim shall receive an amount which the court decides is reasonable for

5-5

collecting the civil penalty and damages. The amount shall be not less than twenty-five percent

5-6

(25%) and not more than thirty percent (30%) of the proceeds of the action or settlement and shall

5-7

be paid out of such proceeds. Such person shall also receive an amount for reasonable expenses

5-8

which the court finds to have been necessarily incurred, plus reasonable attorneys' fees and costs.

5-9

All such expenses, fees, and costs shall be awarded against the defendant.

5-10

      (3) Whether or not the state proceeds with the action, if the court finds that the action

5-11

was brought by a person who planned and initiated the violation of section 9-1.1-3 upon which

5-12

the action was brought, then the court may, to the extent the court considers appropriate, reduce

5-13

the share of the proceeds of the action which the person would otherwise receive under paragraph

5-14

(1) or (2) of this subsection (d), taking into account the role of that person in advancing the case

5-15

to litigation and any relevant circumstances pertaining to the violation. If the person bringing the

5-16

action is convicted of criminal conduct arising from his or her role in the violation of section 9-

5-17

1.1-3, that person shall be dismissed from the civil action and shall not receive any share of the

5-18

proceeds of the action. Such dismissal shall not prejudice the right of the state to continue the

5-19

action.

5-20

      (4) If the state does not proceed with the action and the person bringing the action

5-21

conducts the action, the court may award to the defendant its reasonable attorneys' fees and

5-22

expenses if the defendant prevails in the action and the court finds that the claim of the person

5-23

bringing the action was clearly frivolous, clearly vexatious, or brought primarily for purposes of

5-24

harassment.

5-25

      (e) Certain actions barred.

5-26

      (1) No court shall have jurisdiction over an action brought by a former or present

5-27

member of the guard under subsection 9-1.1-4(b) (actions by private persons) against a member

5-28

of the guard arising out of such person's service in the guard.

5-29

      (2) No court shall have jurisdiction over an action brought pursuant to subsection 9-1.1-

5-30

4(b) (actions by private persons) against the governor, lieutenant governor, the attorney general,

5-31

members of the general assembly, a member of the judiciary, the treasurer, secretary of state, the

5-32

auditor general, any director of a state agency, and any other individual appointed to office by the

5-33

governor if the action is based on evidence or information known to the state when the action was

5-34

brought.

6-1

      (3) In no event may a person bring an action under subsection 9-1.1-4(b) which is based

6-2

upon allegations or transactions which are the subject of a civil suit or an administrative civil

6-3

money penalty proceeding in which the state is already a party.

6-4

      (4) (A) No court shall have jurisdiction over an action under this section based upon the

6-5

public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a

6-6

legislative, administrative, or auditor general's report, hearing, audit, or investigation, or from the

6-7

news media, unless the action is brought by the attorney general or the person bringing the action

6-8

is an original source of the information.

6-9

      (B) For purposes of this exclusion, "original source" means an individual who has direct

6-10

and independent knowledge of the information on which the allegations are based and has

6-11

voluntarily provided the information to the state before filing an action under this section which is

6-12

based on the information.

6-13

      (f) State not liable for certain expenses. - The state is not liable for expenses which a

6-14

person incurs in bringing an action under this section.

6-15

      (g) Any employee who is discharged, demoted, suspended, threatened, harassed, or in

6-16

any other manner discriminated against in the terms and conditions of employment by his or her

6-17

employer because of lawful acts done by the employee on behalf of the employee or others in

6-18

furtherance of an action under this section, including investigation for, initiation of, testimony for,

6-19

or assistance in an action filed or to be filed under this section, shall be entitled to all relief

6-20

necessary to make the employee whole. Such relief shall include reinstatement with the seniority

6-21

status such employee would have had but for the discrimination, two (2) times the amount of

6-22

back pay, interest on the back pay, and compensation for any special damages sustained as a

6-23

result of the discrimination, including litigation costs and reasonable attorneys' fees. An employee

6-24

may bring an action in the appropriate superior court for the relief provided in this subsection 9-

6-25

1.1-4(g).

6-26

     9-1.1-6. Subpoenas. -- (a) In general:

6-27

      (1) Issuance and service. - Whenever the attorney general or solicitor has reason to

6-28

believe that any person may be in possession, custody, or control of any documentary material or

6-29

information relevant to an investigation, the attorney general or solicitor may, before

6-30

commencing a civil proceeding under this act, issue in writing and cause to be served upon such

6-31

person, a subpoena requiring such person:

6-32

      (A) To produce such documentary material for inspection and copying,

6-33

      (B) To answer, in writing, written interrogatories with respect to such documentary

6-34

material or information,

7-1

      (C) To give oral testimony concerning such documentary material or information, or

7-2

      (D) To furnish any combination of such material, answers, or testimony.

7-3

      The attorney general may delegate the authority to issue subpoenas under this subsection

7-4

(a) to the sate police subject to conditions as the attorney general deems appropriate. Whenever a

7-5

subpoena is an express demand for any product of discovery, the attorney general , solicitor, or

7-6

respective or his or her delegate shall cause to be served, in any manner authorized by this

7-7

section, a copy of such demand upon the person from whom the discovery was obtained and shall

7-8

notify the person to whom such demand is issued of the date on which such copy was served.

7-9

      (2) Where a subpoena requires the production of documentary material, the respondent

7-10

shall produce the original of the documentary material, provided, however, that the attorney

7-11

general or solicitor may agree that copies may be substituted for the originals. All documentary

7-12

material kept or stored in electronic form, including electronic mail, shall be produced in hard

7-13

copy, unless the attorney general or solicitor agrees that electronic versions may be substituted for

7-14

the hard copy. The production of documentary material shall be made at the respondent's

7-15

expense.

7-16

      (3) Contents and deadlines. - Each subpoena issued under paragraph (1):

7-17

      (A) Shall state the nature of the conduct constituting an alleged violation that is under

7-18

investigation and the applicable provision of law alleged to be violated.

7-19

      (B) Shall identify the individual causing the subpoena to be served and to whom

7-20

communications regarding the subpoena should be directed.

7-21

      (C) Shall state the date, place, and time at which the person is required to appear,

7-22

produce written answers to interrogatories, produce documentary material or give oral testimony.

7-23

The date shall not be less than ten (10) days from the date of service of the subpoena. Compliance

7-24

with the subpoena shall be at the office of the attorney general or solicitor.

7-25

      (D) If the subpoena is for documentary material or interrogatories, shall describe the

7-26

documents or information requested with specificity.

7-27

      (E) Shall notify the person of the right to be assisted by counsel.

7-28

      (F) Shall advise that the person has twenty (20) days from the date of service or up until

7-29

the return date specified in the demand, whichever date is earlier, to move, modify, or set aside

7-30

the subpoena pursuant to subparagraph (j)(2)(A) of this section.

7-31

      (b) Protected material or information.

7-32

      (1) In general. - A subpoena issued under subsection (a) may not require the production

7-33

of any documentary material, the submission of any answers to written interrogatories, or the

7-34

giving of any oral testimony if such material, answers, or testimony would be protected from

8-1

disclosure under:

8-2

      (A) The standards applicable to subpoenas or subpoenas duces tecum issued by a court

8-3

of this state to aid in a grand jury investigation; or

8-4

      (B) The standards applicable to discovery requests under the Rhode Island superior court

8-5

rules of civil procedure, to the extent that the application of such standards to any such subpoena

8-6

is appropriate and consistent with the provisions and purposes of this section.

8-7

      (2) Effect on other orders, rules, and laws. - Any such subpoena which is an express

8-8

demand for any product of discovery supersedes any inconsistent order, rule, or provision of law

8-9

(other than this section) preventing or restraining disclosure of such product of discovery to any

8-10

person. Disclosure of any product of discovery pursuant to any such subpoena does not constitute

8-11

a waiver of any right or privilege which the person making such disclosure may be entitled to

8-12

invoke to resist discovery of trial preparation materials.

8-13

      (c) Service in general. - Any subpoena issued under subsection (a) may be served by any

8-14

person so authorized by the attorney general or by any person authorized to serve process on

8-15

individuals within Rhode Island, through any method prescribed in the Rhode Island superior

8-16

court rules of civil procedure or as otherwise set forth in this chapter.

8-17

      (d) Service upon legal entities and natural persons.

8-18

      (1) Legal entities. - Service of any subpoena issued under subsection (a) or of any

8-19

petition filed under subsection (j) may be made upon a partnership, corporation, association, or

8-20

other legal entity by:

8-21

      (A) Delivering an executed copy of such subpoena or petition to any partner, executive

8-22

officer, managing agent, general agent, or registered agent of the partnership, corporation,

8-23

association or entity;

8-24

      (B) Delivering an executed copy of such subpoena or petition to the principal office or

8-25

place of business of the partnership, corporation, association, or entity; or

8-26

      (C) Depositing an executed copy of such subpoena or petition in the United States mails

8-27

by registered or certified mail, with a return receipt requested, addressed to such partnership,

8-28

corporation, association, or entity as its principal office or place of business.

8-29

      (2) Natural person. - Service of any such subpoena or petition may be made upon any

8-30

natural person by:

8-31

      (A) Delivering an executed copy of such subpoena or petition to the person; or

8-32

      (B) Depositing an executed copy of such subpoena or petition in the United States mails

8-33

by registered or certified mail, with a return receipt requested, addressed to the person at the

8-34

person's residence or principal office or place of business.

9-1

      (e) Proof of service. - A verified return by the individual serving any subpoena issued

9-2

under subsection (a) or any petition filed under subsection (j) setting forth the manner of such

9-3

service shall be proof of such service. In the case of service by registered or certified mail, such

9-4

return shall be accompanied by the return post office receipt of delivery of such subpoena.

9-5

      (f) Documentary material.

9-6

      (1) Sworn certificates. - The production of documentary material in response to a

9-7

subpoena served under this Section shall be made under a sworn certificate, in such form as the

9-8

subpoena designates, by:

9-9

      (A) In the case of a natural person, the person to whom the subpoena is directed, or

9-10

      (B) In the case of a person other than a natural person, a person having knowledge of the

9-11

facts and circumstances relating to such production and authorized to act on behalf of such

9-12

person. The certificate shall state that all of the documentary material required by the demand and

9-13

in the possession, custody, or control of the person to whom the subpoena is directed has been

9-14

produced and made available to the attorney general or solicitor.

9-15

      (2) Production of materials. - Any person upon whom any subpoena for the production

9-16

of documentary material has been served under this section shall make such material available for

9-17

inspection and copying to the attorney general or solicitor at the place designated in the subpoena,

9-18

or at such other place as the attorney general or solicitor and the person thereafter may agree and

9-19

prescribe in writing, or as the court may direct under subsection (j)(1). Such material shall be

9-20

made so available on the return date specified in such subpoena, or on such later date as the

9-21

attorney general or solicitor may prescribe in writing. Such person may, upon written agreement

9-22

between the person and the attorney general or solicitor, substitute copies for originals of all or

9-23

any part of such material.

9-24

      (g) Interrogatories. - Each interrogatory in a subpoena served under this section shall be

9-25

answered separately and fully in writing under oath and shall be submitted under a sworn

9-26

certificate, in such form as the subpoena designates by:

9-27

      (1) In the case of a natural person, the person to whom the subpoena is directed, or

9-28

      (2) In the case of a person other than a natural person, the person or persons responsible

9-29

for answering each interrogatory. If any interrogatory is objected to, the reasons for the objection

9-30

shall be stated in the certificate instead of an answer. The certificate shall state that all

9-31

information required by the subpoena and in the possession, custody, control, or knowledge of the

9-32

person to whom the demand is directed has been submitted. To the extent that any information is

9-33

not furnished, the information shall be identified and reasons set forth with particularity regarding

9-34

the reasons why the information was not furnished.

10-1

      (h) Oral examinations.

10-2

      (1) Procedures. - The examination of any person pursuant to a subpoena for oral

10-3

testimony served under this section shall be taken before an officer authorized to administer oaths

10-4

and affirmations by the laws of this state or of the place where the examination is held. The

10-5

officer before whom the testimony is to be taken shall put the witness on oath or affirmation and

10-6

shall, personally or by someone acting under the direction of the officer and in the officer's

10-7

presence, record the testimony of the witness. The testimony shall be taken stenographically and

10-8

shall be transcribed. When the testimony is fully transcribed, the officer before whom the

10-9

testimony is taken shall promptly transmit a certified copy of the transcript of the testimony in

10-10

accordance with the instructions of the attorney general or solicitor. This subsection shall not

10-11

preclude the taking of testimony by any means authorized by, and in a manner consistent with,

10-12

the Rhode Island superior court rules of civil procedure.

10-13

      (2) Persons present. - The investigator conducting the examination shall exclude from

10-14

the place where the examination is held all persons except the person giving the testimony, the

10-15

attorney for and any other representative of the person giving the testimony, the attorney for the

10-16

state, any person who may be agreed upon by the attorney for the state and the person giving the

10-17

testimony, the officer before whom the testimony is to be taken, and any stenographer taking such

10-18

testimony.

10-19

      (3) Where testimony taken. - The oral testimony of any person taken pursuant to a

10-20

subpoena served under this section shall be taken in the county within which such person resides,

10-21

is found, or transacts business, or in such other place as may be agreed upon by the attorney

10-22

general or solicitor and such person.

10-23

      (4) Transcript of testimony. - When the testimony is fully transcribed, the attorney

10-24

general or solicitor or the officer before whom the testimony is taken shall afford the witness,

10-25

who may be accompanied by counsel, a reasonable opportunity to review and correct the

10-26

transcript, in accordance with the rules applicable to deposition witnesses in civil cases. Upon

10-27

payment of reasonable charges, the attorney general or solicitor shall furnish a copy of the

10-28

transcript to the witness, except that the attorney general or solicitor may, for good cause, limit

10-29

the witness to inspection of the official transcript of the witness' testimony.

10-30

      (5) Conduct of oral testimony.

10-31

      (A) Any person compelled to appear for oral testimony under a subpoena issued under

10-32

subsection (a) may be accompanied, represented, and advised by counsel, who may raise

10-33

objections based on matters of privilege in accordance with the rules applicable to depositions in

10-34

civil cases. If such person refuses to answer any question, a petition may be filed in superior court

11-1

under subsection (j)(1) for an order compelling such person to answer such question.

11-2

      (B) If such person refuses any question on the grounds of the privilege against self-

11-3

incrimination, the testimony of such person may be compelled in accordance with rules of

11-4

criminal procedure.

11-5

      (6) Witness fees and allowances. - Any person appearing for oral testimony under a

11-6

subpoena issued under subsection 9-1.1-6(a) shall be entitled to the same fees and allowances

11-7

which are paid to witnesses in the superior court.

11-8

      (7) Custodians of documents, answers, and transcripts.

11-9

      (A) Designation. - The attorney general, solicitor, or their respective or his or her

11-10

delegate shall serve as custodian of documentary material, answers to interrogatories, and

11-11

transcripts of oral testimony received under this section.

11-12

      (B) Except as otherwise provided in this section, no documentary material, answers to

11-13

interrogatories, or transcripts of oral testimony, or copies thereof, while in the possession of the

11-14

custodian, shall be available for examination by any individual, except as determined necessary

11-15

by the attorney general or solicitor and subject to the conditions imposed by him or her for

11-16

effective enforcement of the laws of this state, or as otherwise provided by court order.

11-17

      (C) Conditions for return of material. - If any documentary material has been produced

11-18

by any person in the course of any investigation pursuant to a subpoena under this section and:

11-19

      (i) Any case or proceeding before the court or grand jury arising out of such

11-20

investigation, or any proceeding before any state agency involving such material, has been

11-21

completed, or

11-22

      (ii) No case or proceeding in which such material may be used has been commenced

11-23

within a reasonable time after completion of the examination and analysis of all documentary

11-24

material and other information assembled in the course of such investigation, the custodian shall,

11-25

upon written request of the person who produced such material, return to such person any such

11-26

material which has not passed into the control of any court, grand jury, or agency through

11-27

introduction into the record of such case or proceeding.

11-28

      (j) Judicial proceedings.

11-29

      (1) Petition for enforcement. - Whenever any person fails to comply with any subpoena

11-30

issued under subsection (a), or whenever satisfactory copying or reproduction of any material

11-31

requested in such demand cannot be done and such person refuses to surrender such material, the

11-32

attorney general or solicitor may file, in the superior court of the county in which such person

11-33

resides, is found, or transacts business, or the superior court in the he county in which an action

11-34

filed pursuant to section 9-1.1-4 is pending if the action relates to the subject matter of the

12-1

subpoena and serve upon such person a petition for an order of such court for the enforcement of

12-2

the subpoena.

12-3

      (2) Petition to modify or set aside subpoena.

12-4

      (A) Any person who has received a subpoena issued under subsection (a) may file, in the

12-5

superior court of any county within which such person resides, is found, or transacts business, and

12-6

serve upon the attorney general a petition for an order of the court to modify or set aside such

12-7

subpoena. In the case of a petition addressed to an express demand for any product of discovery,

12-8

a petition to modify or set aside such demand may be brought only in the superior court of the

12-9

county in which the proceeding in which such discovery was obtained is or was last pending. Any

12-10

petition under this subparagraph (a) must be filed:

12-11

      (i) Within twenty (20) days after the date of service of the subpoena, or at any time

12-12

before the return date specified in the subpoena, whichever date is earlier, or

12-13

      (ii) Within such longer period as may be prescribed in writing by the attorney general or

12-14

solicitor.

12-15

      (B) The petition shall specify each ground upon which the petitioner relies in seeking

12-16

relief under subparagraph (a), and may be based upon any failure of the subpoena to comply with

12-17

the provisions of this section or upon any constitutional or other legal right or privilege of such

12-18

person. During the pendency of the petition in the court, the court may stay, as it deems proper,

12-19

the running of the time allowed for compliance with the subpoena, in whole or in part, except that

12-20

the person filing the petition shall comply with any portion of the subpoena not sought to be

12-21

modified or set aside.

12-22

      (3) Petition to modify or set aside demand for product of discovery. In the case of any

12-23

subpoena issued under subsection (a) which is an express demand for any product of discovery,

12-24

the person from whom such discovery was obtained may file, in the superior court of the county

12-25

in which the proceeding in which such discovery was obtained is or was last pending, a petition

12-26

for an order of such court to modify or set aside those portions of the subpoena requiring

12-27

production of any such product of discovery, subject to the same terms, conditions, and

12-28

limitations set forth in subparagraph (j)(2) of this section.

12-29

      (4) Jurisdiction. - Whenever any petition is filed in any superior court under this

12-30

subsection (j), such court shall have jurisdiction to hear and determine the matter so presented,

12-31

and to enter such orders as may be required to carry out the provisions of this section. Any final

12-32

order so entered shall be subject to appeal in the same manner as appeals of other final orders in

12-33

civil matters. Any disobedience of any final order entered under this section by any court shall be

12-34

punished as a contempt of the court.

13-1

      (k) Disclosure exemption. - Any documentary material, answers to written

13-2

interrogatories, or oral testimony provided under any subpoena issued under subsection (a) shall

13-3

be exempt from disclosure under the Rhode Island access to public records law, section 38-2-2.

13-4

     9-1.1-8. Funds. -- There is hereby created a separate fund entitled the false claims act

13-5

fund. All proceeds of an action or settlement of a claim brought under this chapter shall be

13-6

deposited in the fund., with the exception of actions brought directly by a solicitor, in which case

13-7

the proceeds of an action or settlement of a claim brought under this chapter shall be provided to

13-8

the respective municipality.

13-9

     SECTION 2. Chapter 9-1.1 of the General Laws entitled "The State False Claim Act" is

13-10

hereby amended by adding thereto the following section:

13-11

     9-1.1-9. Powers conferred upon municipal solicitors. – All powers conferred under this

13-12

chapter upon the attorney general with regard to the state are conferred upon solicitors with

13-13

regard to their respective municipalities in matters involving an action under the false claims act.

13-14

      SECTION 3. This act shall take effect upon passage.

=======

LC01449/SUB A

========

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO COURTS AND CIVIL PROCEDURE - FALSE CLAIM ACT

***

14-1

     This act would permit that municipalities, acting through their respective solicitors, could

14-2

bring an action under the state false claims act.

14-3

     This act would take effect upon passage.

=======

LC01449/SUB A

=======