General Laws of Massachusetts - Chapter 93 Regulation of Trade and Certain Enterprises - Section 8 Investigation by attorney general

Section 8. Whenever the attorney general has reasonable cause to believe that any person has engaged in, is engaging in, or is about to engage in any act or practice prohibited by this act, he may, prior to the commencement of any civil or criminal action as provided for by this act, issue in writing and cause to be served upon such person a civil investigative demand requiring such person to produce documentary material pertinent to the investigation for inspection or copying, to answer written interrogatories in writing and under oath, to give oral testimony concerning documentary material or information, or to furnish any combination of such material, answers or testimony.

Each demand shall (a) specify the section or sections of this act the alleged violation of which is under investigation and the conduct constituting the alleged violation; (b) prescribe a reasonable return date or dates in no event less than twenty days from the date of service of the demand; (c) if it is a demand for production of documentary material, describe the class or classes of documentary material to be produced with reasonable specificity so as to permit such material to be fairly identified; (d) if it is a demand for answers to written interrogatories, propound with reasonable specificity the written interrogatories to be answered; and (e) if it is a demand for the giving of oral testimony, prescribe a time and place at which such oral testimony shall be commenced, and identify the person or persons who shall conduct the examination.

No such demand shall contain any requirement which would be unreasonable or improper if continued in a discovery notice, request, or demand made under any of the discovery provisions of the Massachusetts Rules of Civil Procedure; or require the disclosure of any materials which would be privileged, or which for any other reason would not be required to be disclosed if demanded by a subpoena duces tecum issued by a federal court or a court of the commonwealth in aid of a grand jury investigation.

A civil investigative demand may be served by any means provided under the Massachusetts Rules of Civil Procedure or any statute of the commonwealth for service of a complaint in a civil action.

At any time before the return date specified in the demand, or within such further time as may be agreed to by the attorney general and the person served with a demand, the person served may petition the superior court for an order modifying or setting aside such demand or for an appropriate protective order. The obligation to comply with the demand shall be suspended while such petition is pending. The petition shall specify each ground upon which the petitioner relies in seeking relief, and may be based upon lack of jurisdiction, the inapplicability of this act, any failure of the demand to comply with the provisions of this act or upon any constitutional or other legal right or privilege of such person, including that the information sought constitutes a trade secret. The superior court shall have jurisdiction to enter such order or orders as may be required to carry into effect the provisions of this chapter and to protect the rights of the petitioner. Any final order so entered shall be subject to appeal.

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. Such protective orders may include provisions appropriate to the full and adequate protection of trade secrets.

All persons served with a demand for oral examination pursuant to this section shall be paid the same fees and mileage paid to witnesses in the courts of the commonwealth. No person shall be excused from attending such inquiry on the ground of failure to tender or pay a witness fee or mileage unless demand therefor is made at or before the time testimony is to be taken.

The oral examination of all persons pursuant to this section shall be conducted before a person duly authorized to administer oaths by the law of the commonwealth and shall be taken in the county within which such person resides, is found, or transacts business or in such other county as may be agreed upon by the attorney general and such person.

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 the objection. An objection may properly be made, received, and entered upon the record when it is claimed that such 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 conducting the examination shall exclude from the place where the examination is held all persons except the person being examined, his counsel, the officer before whom the testimony is taken, and any stenographer taking such testimony.

Testimony shall be taken stenographically or by sound recording and transcribed. When the testimony is fully transcribed, the witness, with his counsel, shall be afforded a reasonable opportunity to examine the transcript. Any changes in form or substance which the witness desires to make shall be entered and identified upon the transcript with a statement of the reasons given by the witness for making such changes. Upon payment of reasonable charges therefor, a copy of the transcript shall be furnished to the witness.

Whenever any person fails to comply with any civil investigative demand duly served upon him under this section, the attorney general may file, in the superior court for any county in which such person resides, is found, or transacts business, a petition for an order of such court enforcing said demand. The Massachusetts Rules of Civil Procedure shall apply to any such petition. Any disobedience of any final order entered under this section shall be punished as a contempt of court.

All information and documents, including answers to interrogatories, transcripts or testimony, produced documents, and all copies thereof, which are obtained by the attorney general in the course of any investigation under this chapter shall be held in the custody of the attorney general, shall be kept confidential by the attorney general, and shall not be disclosed by the attorney general to any person except as necessary in a case brought by the attorney general under this act. Such information and documentary materials shall not be public records and are exempt from disclosure under section ten of chapter sixty-six. Upon the completion of a case brought under this act, the attorney general shall return any such documents, answers and transcripts, and all copies thereof, which have not passed into the control of the court through the introduction thereof into the record, to the person who provided such documents, answers or testimony. If no case in which such 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 years after production thereof, the attorney general shall, upon written request of the person who produced such material, return all documents, answers and transcripts, and all copies thereof, to the person who provided them.

No information obtained or derived in the course of any investigation under this section shall be used or introduced as evidence by the prosecution in any criminal proceeding.

Nothing in this section shall preclude the attorney general from disclosing information and evidence secured pursuant to this section to those officials of the United States and the several states charged with the enforcement of federal or state antitrust laws, provided, however, that prior to any such disclosure the attorney general shall obtain a written agreement from such officials to abide by the restrictions of this section and any orders entered pursuant to this section.

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Last modified: September 11, 2015