Commercial Law – General Regulatory Provisions

Antitrust Law

SECTION 6-36-9

§ 6-36-9. Investigation by attorney general.

(a) General power of investigation. Whenever it appears to the attorney general, upon reasonable cause, that any person has engaged in, engages in, or is about to engage in any act or practice prohibited by this chapter; or that any person has assisted or participated in any plan, scheme, agreement, or combination of the nature prohibited by this chapter; or whenever the attorney general believes it to be in the public interest that an investigation be made; he or she may, in his or her discretion, either require or permit the complainant to file with the attorney general a statement in writing under oath or otherwise as to all facts and circumstances concerning the subject matter that the attorney general believes to be in the public interest to investigate. The attorney general may also require any other data and information from the complainant that he or she deems relevant and may make any special and independent investigations that he or she deems necessary in connection with the matter. In addition, the attorney general may take any measures that will not violate due process of law to preserve the confidentiality of the complainant's identity.

(b) Investigative demand.

(1) Whenever the attorney general has reason to believe that any person may have knowledge or be in possession, custody, or control of any documentary material pertinent to an investigation of a possible violation of this chapter, the attorney general may issue in writing and cause to be served upon the person an investigative demand by which the attorney general may:

(i) Compel the attendance of the person and require him or her to submit to examination and give testimony under oath;

(ii) Require the production of documentary material pertinent to the investigation for inspection or copying; and/or

(iii) Require answer to written interrogatories to be furnished under oath.

(2) The power to issue investigative demands shall neither abate nor terminate by reason of the bringing of any action or proceeding under this chapter. The attorney general may issue successive investigative demands to the same person in order to obtain additional information pertinent to an ongoing investigation.

(c) Contents of investigative demand. Each investigative demand shall:

(1) State the section or sections of the chapter the alleged violation of which is under investigation and the general subject matter of this investigation;

(2) Prescribe a reasonable return date no less than forty (40) days after service of the investigative demand, provided that an earlier date may be prescribed under compelling circumstances, but in no event less than twenty (20) days;

(3) Specify the time and place at which the person is to appear and give testimony; produce documentary material; and furnish answers to interrogatories; or do any or a combination of these things;

(4) Describe by class any documentary material required to be produced so as to clearly indicate what is demanded; and

(5) Contain any interrogatories to which written answers under oath are required.

(d) Prohibition against unreasonable demand. No investigative demand shall:

(1) Contain any requirement that would be unreasonable or improper if contained in a subpoena issued by a court of this state; or

(2) Require the disclosure of any material or information that would be privileged, or which for any other reason would not be required to be disclosed by a subpoena issued by a court of this state, including, but not limited to, trade secrets or confidential scientific, technical, merchandising, production, management, or commercial information, to the extent that the material or information is protected pursuant to the rules of civil procedure of the superior court.

(e) Offer of documentary evidence. Where the information requested upon oral examination or written interrogatory pursuant to an investigative demand may be derived or ascertained from the business records of the person upon whom the demand has been served; or from an examination, audit, or inspection of the business records; or from a compilation, abstract, or summary based on the records; and the burden of deriving or ascertaining the answer is substantially the same for the attorney general as for the person from whom the information is requested, it is sufficient for that person to specify the records from which the answer may be derived or ascertained and to afford the attorney general reasonable opportunity to examine, audit, or inspect the records and to make copies, compilations, abstracts, or summaries.

(f) Service of investigative demand. An investigative demand may be served by any means provided under the Rhode Island rules of civil procedure for service of a complaint in a civil action.

(g) Motion to quash. Within forty (40) days after the service of an investigative demand or at any time before the return date specified in the demand, whichever period is shorter, the person served may file in a state superior court and serve upon the attorney general a petition for an order of court modifying or setting aside the demand. The time allowed for compliance in whole or part with the demand as deemed proper and ordered by the court shall not run while the petition is pending before the court. The petition shall specify each ground upon which the petitioner relies in seeking relief, and may be based upon any failure of the demand to comply with the provisions of this chapter or upon any constitutional or other legal right, privilege, or qualified privilege of the party, including that the material or information sought constitutes trade secrets or confidential scientific, technical, merchandising, production, management, or commercial information. If qualified privilege is raised, the court may order the person to comply with the demand only upon showing of particularized need and subject to an appropriate protective order. The provisions of this subsection shall be the sole and exclusive means for challenging the requirements of a demand.

(h) Those authorized to examine. The examination of all persons pursuant to this section shall be conducted by the attorney general or a representative designated in writing by him or her before an officer authorized to administer oaths in this state. The statements made shall be taken down stenographically or by a sound recording device and shall be transcribed.

(i) Right of persons served with investigative demands.

(1) Any person required to attend and give testimony or to submit documentary material pursuant to this section shall be entitled to retain or, on payment of lawfully prescribed cost, to procure a copy of any document he or she produces and of his or her own statements as transcribed.

(2) Any person compelled to appear under a demand for oral testimony pursuant to this section may be accompanied, represented, and advised by counsel. Counsel may advise the person in confidence, either upon the request of the person or upon counsel's own initiative, with respect to any question asked of the person. The person or counsel may object on the record to any question, in whole or part, and shall briefly state for the record the reason for the objection. An objection may properly be made, received, and entered upon the record when it is claimed that the person is entitled to refuse to answer the question on grounds of any constitutional or other legal right or privilege, including the privilege against self incrimination. The person shall not otherwise object to or refuse to answer any question, and shall not by him or herself or through counsel otherwise interrupt the oral examination. If the person refuses to answer any question, the attorney general may petition the superior court for an order compelling the person to answer the question.

(3) The information and materials supplied to the attorney general pursuant to an investigative demand shall not be permitted to become public or disclosed by the attorney general or his or her employees beyond the extent necessary for antitrust 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, and all copies of the material that have not passed into the control of the court through their introduction into the record, to the person who provided the documents, answers, or testimony. If no case in which the material may be used has been commenced within a reasonable time after completion of the examination or analysis of all documentary material, but in no event later than two (2) years after production of the documentary material, the attorney general shall, upon written request of the person who produced the material, return all documents, answers, and transcripts, and all copies of the material, to the person who provided them.

(5) The attorney general shall have the authority, at any time, to modify or revoke any civil investigative demand and to stipulate to protective orders with respect to documents and information submitted in response to a demand. The protective orders may include provisions appropriate to the full and adequate protection of trade secrets.

(j) Witness expenses. All persons served with an investigative demand, other than those persons whose conduct or practices are being investigated, or any officer, director, or person in the employment of the person under investigation, shall be paid the same fees and mileage as paid witnesses in the courts of this state. No person shall be excused from attending the inquiry pursuant to the mandate of an investigative demand; from giving testimony; from producing documentary material; or from being required to answer questions on the ground of failure to tender or pay a witness fee or mileage unless demand for the fees or mileage is made at the time testimony is about to be taken and unless payment is not made upon demand.

(k) Refusal of witness to testify or produce documents. Any person who shall neglect or refuse to attend and give testimony or to answer any lawful inquiry or to produce documentary material, if in his or her power to do so, in obedience to an investigative demand pursuant to this section, may be adjudged in civil contempt by the superior court until the time that he or she purges him or herself of contempt by testifying, producing documentary material, or presenting written answers as ordered. Any person who commits perjury or false swearing in response to an investigative demand pursuant to this section shall be punishable pursuant to the provisions of chapter 33 of title 11.

(l) Duty to testify immunity.

(1) If, in any investigation brought by the attorney general pursuant to this section, any individual shall refuse to attend; to give testimony; to produce documentary material; or to answer a written interrogatory in obedience to an investigative demand, or under order of court, on the ground that the testimony or material required of him or her may tend to incriminate him or her, that person may be ordered to attend and to give testimony; to produce documentary material; or to answer the written interrogatory; or to do an applicable combination of these. The order as previously stated shall be an order of court given after a hearing in which the attorney general has established a need for the grant of immunity as provided in this subsection.

(2) The attorney general may petition any superior court justice for an order as described in subdivision (l)(1). The petition shall set forth the nature of the investigation and the need for the immunization of the witness.

(3) Testimony so compelled shall not be used against the witness as evidence in any criminal proceedings against him or her in any court. However, the grant of immunity shall not immunize the witness from civil liability arising from the transactions about which testimony is given, and he or she may nevertheless be prosecuted or subjected to penalty or forfeiture for any perjury, false swearing, or contempt committed in answering, or in failing to answer, or in producing evidence, or failing to do so, in accordance with the order. If a person refuses to testify after being granted immunity from prosecution and after being ordered to testify as previously stated, he or she may be adjudged in civil contempt by the superior court until the time that he or she purges him or herself of contempt by testifying; producing documentary material; or presenting written answers as ordered. The foregoing shall not prevent the attorney general from instituting other appropriate contempt proceedings against any person who violates any of the above provisions.

(m) Duty of public officials. It shall be the duty of all officials of this state and its public bodies, their deputies, assistants, clerks, subordinates, or employees, and all other persons to render and furnish to the attorney general when so requested all information and assistance in their possession or within their power.

History of Section.
(P.L. 1979, ch. 98, § 1; P.L. 2014, ch. 528, § 26.)