Florida Senate - 2013                        COMMITTEE AMENDMENT
       Bill No. CS for SB 1494
       
       
       
       
       
       
                                Barcode 298330                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/17/2013           .                                
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       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;