Florida Senate - 2013 COMMITTEE AMENDMENT Bill No. CS for SB 1494 Barcode 298330 LEGISLATIVE ACTION Senate . House Comm: RCS . 04/17/2013 . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— The Committee on Rules (Lee) recommended the following: 1 Senate Amendment (with title amendment) 2 3 Delete lines 188 - 333 4 and insert: 5 Section 4. Effective on the same date that SB 1496 or 6 similar legislation takes effect, if such legislation is adopted 7 in the same legislative session or an extension thereof and 8 becomes a law, section 68.0831, Florida Statutes, is created to 9 read: 10 68.0831 Subpoena.— 11 (1) As used in this section, the term “department” means 12 the Department of Legal Affairs. 13 (2) Whenever the department has reason to believe that any 14 person may be in possession, custody, or control of any 15 documentary material or may have any information, which 16 documentary material or information is relevant to a civil 17 investigation authorized by s. 68.083, the department may, 18 before the institution of a civil proceeding thereon, issue in 19 writing and cause to be served upon the person a subpoena 20 requiring the person to: 21 (a) Produce such documentary material for inspection and 22 copying or reproduction; 23 (b) Answer, under oath and in writing, written 24 interrogatories; 25 (c) Give sworn oral testimony concerning the documentary 26 material or information; or 27 (d) Furnish any combination of such material, answers, or 28 testimony. 29 (3) The subpoena shall: 30 (a) Be served upon the person in the manner required for 31 service of process in this state or by certified mail showing 32 receipt by the addressee or by the authorized agent of the 33 addressee. 34 (b) State the nature of the conduct that constitutes the 35 violation of this act and that is alleged to have occurred or to 36 be imminent. 37 (c) Describe the class or classes of documentary material 38 to be produced thereunder with such definiteness and certainty 39 as to permit such materials to be reasonably identified. 40 (d) Prescribe a date and time at which the person must 41 appear to testify, under oath or affirmation, or by which the 42 person must answer written interrogatories or produce the 43 documentary material for inspection or copying; however, such 44 date shall not be earlier than 30 days after the date of service 45 of the subpoena. 46 (e) Specify a place for the taking of testimony or for the 47 submission of answers to interrogatories and identify the person 48 who is to take custody of any documentary material. Inspection 49 and copying of documentary material shall be carried out at the 50 place where the documentary material is located or at such other 51 place as may be thereafter agreed to by the person and such 52 designated custodian. Upon written agreement between the person 53 and the designated custodian, copies may be substituted for 54 original documents. 55 (4) Such subpoena may not require the production of any 56 documentary material, the submission of any answers to written 57 interrogatories, or the giving of any oral testimony if such 58 material, answers, or testimony would be protected from 59 disclosure under: 60 (a) The standards applicable to subpoenas or subpoenas 61 duces tecum issued by a court of this state in aid of a grand 62 jury investigation; or 63 (b) The standards applicable to a discovery request under 64 the Florida Rules of Civil Procedure, to the extent that the 65 application of such standards to any such subpoena is 66 appropriate and consistent with the provisions and purposes of 67 this act. 68 (5) This section does not limit the power of the department 69 to require the appearance of witnesses or production of 70 documents or other tangible evidence located outside the state. 71 (6) Within 30 days after the service of a subpoena upon any 72 person or at any time before the return date specified therein, 73 whichever period is longer, the person served may file, and 74 serve on the department, a petition for an order of the court 75 modifying or setting aside the subpoena. Any such petition shall 76 be filed in the circuit court of the Second Judicial Circuit in 77 and for Leon County. The time allowed for compliance in whole or 78 in part with the subpoena as deemed proper and ordered by the 79 court shall not run while the petition is pending before the 80 court. The petition shall specify each ground upon which the 81 petitioner relies in seeking relief and may be based upon the 82 failure of the subpoena to comply with this section or upon any 83 constitutional or other legal right or privilege of such person. 84 (7) In case of the failure of any person to comply in whole 85 or in part with a subpoena and when such person has not filed a 86 petition under subsection (6), the circuit court of the Second 87 Judicial Circuit in and for Leon County, upon application of the 88 department, may issue an order requiring compliance. The failure 89 to obey the order of the court shall be punishable as a contempt 90 of court. 91 (8) The examination of all witnesses under this section 92 shall be conducted by the department before an officer 93 authorized to administer oaths in this state. The testimony 94 shall be taken stenographically or by a sound-recording device. 95 Any person compelled to appear under a subpoena for oral 96 testimony pursuant to this section may be accompanied, 97 represented, and advised by counsel. Counsel may advise such 98 person, in confidence, either upon the request of such person or 99 upon counsel’s own initiative, with respect to any question 100 asked of such person. Such person or counsel may object on the 101 record to any question, in whole or in part, and shall briefly 102 state for the record the reason for any such objection. If such 103 person refuses to answer any question, the person conducting the 104 examination may petition the circuit court as provided by 105 subsection (11). 106 (9) When the testimony is fully transcribed, the person 107 conducting the deposition shall afford the witness, and counsel, 108 if any, a reasonable opportunity to examine the transcript, and 109 the transcript shall be read to or by the witness, unless such 110 examination and reading is waived by the witness. Any changes in 111 form or substance that the witness desires to make shall be 112 entered and identified upon the transcript by the officer or the 113 department, with a statement of the reasons given by the witness 114 for making such changes. The transcript shall then be signed by 115 the witness unless the witness waives the signing in writing, is 116 ill, cannot be found, or refuses to sign. If the transcript is 117 not signed by the witness within 30 days after his or her being 118 afforded a reasonable opportunity to examine it, the person 119 conducting the examination shall sign it and state on the record 120 the fact of the waiver, illness, absence, or refusal to sign, 121 together with the reason, if any, given therefor. Any person 122 required to testify or to submit documentary evidence is 123 entitled, on payment of reasonable costs, to procure a copy of 124 any document produced by such person and of his or her own 125 testimony as stenographically reported or, in the case of a 126 deposition, as reduced to writing by or under the direction of 127 the person taking the deposition. 128 (10) The department shall have the authority to stipulate 129 to protective orders with respect to documents and information 130 submitted in response to a subpoena under this section. 131 (11) The department may request that any natural person who 132 refuses to comply with this section on the ground that the 133 testimony or documents may incriminate him or her be ordered by 134 the circuit court to provide the testimony or the documents. 135 Except in a prosecution for perjury, a natural person who 136 complies with a court order to provide testimony or documents 137 after asserting a privilege against self-incrimination to which 138 he or she is entitled by law may not be subject to a criminal 139 proceeding with respect to the transaction to which he or she is 140 required to testify or produce documents. Any natural person who 141 fails to comply with such a court order to testify or produce 142 documents may be adjudged in contempt and imprisoned until the 143 time the person purges himself or herself of the contempt. 144 (12) While in the possession of the custodian, documentary 145 material, answers to interrogatories, and transcripts of oral 146 testimony shall be available, under such reasonable terms and 147 conditions as the department shall prescribe, for examination by 148 the person who produced such materials or answers or that 149 person’s duly authorized representative. 150 (13) This section does not impair the authority of the 151 department to: 152 (a) Institute a civil proceeding under s. 68.083; 153 (b) Invoke the power of a court to compel the production of 154 evidence before a grand jury; or 155 (c) Maintain the confidential and exempt status of the 156 complaint and any other information as provided in s. 68.083(8). 157 (14)(a) A person who knows or has reason to believe that a 158 159 ================= T I T L E A M E N D M E N T ================ 160 And the title is amended as follows: 161 Delete lines 10 - 35 162 and insert: 163 files an action under the act; creating s. 68.0831, 164 F.S.; defining the term “department”; authorizing the 165 Department of Legal Affairs to issue subpoenas for 166 specified purposes before the institution of civil 167 proceedings; providing requirements for the content 168 and service of subpoenas; providing that such 169 subpoenas may not require specified protected 170 documents or testimony; specifying that the 171 department’s power to require the appearance of 172 witnesses or production of documents or other tangible 173 evidence located outside the state is unaffected; 174 providing for petitions to modify or set aside 175 subpoenas; providing for orders to comply with 176 subpoenas; providing for the examination of witnesses; 177 providing for review of transcripts of testimony; 178 authorizing the department to stipulate to protective 179 orders of submitted documents and information; 180 providing for natural persons who decline to testify 181 or produce documents after asserting a privilege 182 against self-incrimination to be ordered to testify or 183 produce documents; providing for contempt to comply 184 with such orders; providing for examination of 185 testimony, answers, or materials by the person who 186 produced such materials or answers; providing 187 applicability; prohibiting a person knowing or having 188 reason to believe that a subpoena is pending from 189 tampering with evidence; providing civil penalties;