2018 Florida Statutes
Civil investigative demand.
Civil investigative demand.
542.28 Civil investigative demand.—
(1) Whenever the Attorney General, or a state attorney with appropriate jurisdiction and with the written consent of the Attorney General, has reason to believe that any person may be in possession, custody, or control of any documentary material, or may have any information, which documentary material or information is relevant to a civil antitrust investigation authorized by s. 542.27(3), the Attorney General or such state attorney may, prior to the institution of a civil or criminal proceeding thereon, issue in writing and cause to be served upon such person a civil investigative demand requiring such person to:
(a) Produce such documentary material for inspection and copying or reproduction;
(b) Answer, under oath and in writing, written interrogatories;
(c) Give sworn oral testimony concerning the documentary material or information; or
(d) Furnish any combination of such material, answers, or testimony.
(2) The demand shall:
(a) Be served upon the person in the manner required for service of process in this state or by certified mail showing receipt by the addressee or by the authorized agent of the addressee.
(b) State the nature of the conduct which constitutes the violation of this chapter or of the federal antitrust laws and which is alleged to have occurred or to be imminent.
(c) Describe the class or classes of documentary material to be produced thereunder with such definiteness and certainty as to permit such materials to be reasonably identified.
(d) Prescribe a date and time at which the person must appear to testify, under oath or affirmation, or by which the person must answer written interrogatories or produce the documentary material for inspection or copying; however, such date shall not be earlier than 30 days from the date of service of the investigative demand.
(e) Specify a place for the taking of testimony or for the submission of answers to interrogatories and identify the person who is to take custody of any documentary material. Inspection and copying of documentary material shall be carried out at the place where the documentary material is located or at such other place as may be thereafter agreed to by the person and such designated custodian. Upon written agreement between the person and the designated custodian, copies may be substituted for original documents.
(3) No such demand shall require the production of any documentary material, the submission of any answers to written interrogatories, or the giving of any oral testimony if such material, answers, or testimony would be protected from disclosure under:
(a) The standards applicable to subpoenas or subpoenas duces tecum issued by a court of this state in aid of a grand jury investigation; or
(b) The standards applicable to a discovery request under the Florida Rules of Civil Procedure, to the extent that the application of such standards to any such demand is appropriate and consistent with the provisions and purposes of this chapter.
(4) Nothing in this section, however, shall limit the power of the Attorney General or a state attorney to require the appearance of witnesses or production of documents or other tangible evidence located outside the state.
(5) Within 30 days after the service of an investigative demand upon any person or at any time before the return date specified therein, whichever period is longer, the person served may file in the circuit court in and for the county in which the person resides or transacts business, and serve upon the Attorney General or state attorney, a petition for an order of the court modifying or setting aside the demand. The time allowed for compliance in whole or in 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 the failure of the demand to comply with the provisions of this chapter or upon any constitutional or other legal right or privilege of such person.
(6) In case of the failure of any person to comply in whole or in part with a written investigative demand and when such person has not filed a petition under subsection (5), any circuit court of this state, upon application of the Attorney General or state attorney, may issue an order requiring compliance. The failure to obey the order of the court shall be punishable as a contempt of court.
(7) The examination of all witnesses under this section shall be conducted by the Attorney General, or a state attorney with appropriate jurisdiction, before an officer authorized to administer oaths in this state. The testimony shall be taken stenographically or by a sound-recording device. 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 such person, in confidence, either upon the request of such person or upon counsel’s own initiative, with respect to any question asked of such person. Such person or counsel may object on the record to any question, in whole or in part, and shall briefly state for the record the reason for any such objection. If such person refuses to answer any question, the person conducting the examination may petition the circuit court as provided by subsection (11).
(8) When the testimony is fully transcribed, the person conducting the deposition shall afford the witness, and counsel if any, a reasonable opportunity to examine the transcript, and the transcript shall be read to or by the witness, unless such examination and reading is waived by the witness. Any changes in form or substance which the witness desires to make shall be entered and identified upon the transcript by the officer, the Attorney General, or a state attorney, with a statement of the reasons given by the witness for making such changes. The transcript shall then be signed by the witness unless the witness waives the signing in writing, is ill, cannot be found, or refuses to sign. If the transcript is not signed by the witness within 30 days of his or her being afforded a reasonable opportunity to examine it, the person conducting the examination shall sign it and state on the record the fact of the waiver, illness, absence of the witness, or refusal to sign, together with the reason, if any, given therefor. Any person required to testify or to submit documentary evidence is entitled, on payment of reasonable costs, to procure a copy of any document produced by such person and of his or her own testimony as stenographically reported or, in the case of a deposition, as reduced to writing by or under the direction of the person taking the deposition.
(9) Notwithstanding s. 119.07(1), it is the duty of the Attorney General or a state attorney to maintain the secrecy of all evidence, testimony, documents, work product, or other results of such investigative demand. However, the Attorney General or state attorney may disclose such investigative evidence to:
(a) Any court or tribunal in this state; or
(b) Other law enforcement authorities of the Federal Government or other state governments that have restrictions governing confidentiality similar to those contained in this subsection.
(10) The Attorney General shall have the authority to stipulate to protective orders with respect to documents and information submitted in response to an investigative demand under this section.
(11) The Attorney General or a state attorney may request that any natural person who refuses to comply with any provisions of this section on the ground that the testimony or documents may incriminate him or her be ordered by the circuit court to provide the testimony or the documents. Except in a prosecution for perjury, a natural person who complies with a court order to provide testimony or documents after asserting a privilege against self-incrimination to which he or she is entitled by law may not be subject to a criminal proceeding or to the civil penalty of s. 542.21(1), with respect to the transaction to which he or she is required to testify or produce documents. Any natural person who fails to comply with such a court order to testify or produce documents may be adjudged in contempt and imprisoned until the time the person purges himself or herself of the contempt.
(12) While in the possession of the custodian, documentary material, answers to interrogatories, and transcripts of oral testimony shall be available, under such reasonable terms and conditions as the Attorney General or a state attorney shall prescribe, for examination by the person who produced such materials or answers, or that person’s duly authorized representative.
(13) Nothing contained in this section shall impair the authority of the Attorney General or state attorney to:
(a) Institute a civil proceeding under s. 542.22;
(b) Lay before a grand jury of this state evidence concerning a violation of this chapter;
(c) Invoke the power of a court to compel the production of evidence before a grand jury; or
(d) File a civil complaint or criminal indictment alleging a violation of this chapter.
(14)(a) No person, knowing or having reason to believe that a demand pursuant to this section is pending, shall:
1. Alter, destroy, conceal, or remove any record, document, or thing with the purpose of impairing its verity or availability in such proceeding or investigation; or
2. Make, present, or use any record, document, or thing, knowing it to be false.
(15) When copies of documentary material made available pursuant to an investigative demand are no longer required for use in a pending proceeding or, absent any pending proceeding, are no longer required in connection with the investigation for which they were demanded, or at the end of 24 months following the date when the material was made available, whichever is sooner, all copies of the material shall be returned, unless a request to extend the period beyond 24 months has been filed in the court in which a request for an order compelling compliance pursuant to subsection (6) could be filed. This subsection does not require the return of any copies of the documentary material that have passed into the control of any court or grand jury.
History.—s. 1, ch. 80-28; s. 2, ch. 84-146; s. 1, ch. 92-24; s. 342, ch. 96-406; s. 1173, ch. 97-103.