(1) Whenever the attorney general or the district attorney has reason to believe that any person or enterprise may be in possession, custody, or control of any documentary materials relevant to a racketeering investigation, he or she 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 produce such material for examination.
(2) Each such demand shall:
State the nature of the conduct constituting the alleged racketeering violation whichis under investigation and the provision of law applicable thereto;
Describe the class or classes of documentary material demanded thereunder withsuch definiteness and certainty as to permit such material to be fairly identified;
State that the demand is returnable forthwith or prescribe a return date which willprovide a reasonable period of time within which the material so demanded may be assembled and made available for inspection and copying or reproduction;
Identify the custodian to whom such material shall be made available; and
State an advisement of rights, available under the provisions of this article, in addition to any appropriate constitutional rights advisement.
(3) No such demand shall:
Contain any requirement which would be held to be unreasonable if contained in asubpoena duces tecum issued by a court of the state in aid of a grand jury investigation of such alleged racketeering violation; or
Require the production of any documentary evidence which would be privileged from disclosure if demanded by a subpoena duces tecum issued by a court of the state in aid of a grand jury investigation of such alleged racketeering violation.
(4) Service of such demand or any petition filed under this section may be made upon a person by:
Delivering a duly executed copy thereof to any partner, executive officer, managingagent, or general agent thereof, or to any agent thereof authorized by appointment or by law to receive service of process on behalf of such person or upon any individual person;
Delivering a duly executed copy thereof to the residence, principal office, or place ofbusiness of the person to be served; or
Depositing such copy in the United States mail, by registered or certified mail, dulyaddressed to such person at its residence, principal office, or place of business.
(5) A verified return by the individual serving any such demand or petition setting forth the manner of such service shall be prima facie proof of such service. In the case of service by registered or certified mail, such return shall be accompanied by the return post-office receipt of delivery of such demand.
(6) (a) The attorney general or district attorney shall designate an investigator to serve as racketeer document custodian and such racketeering investigators as he or she shall determine to be necessary to serve as deputies to such officer.
Any person upon whom any demand issued under this section has been duly servedshall make such material available for inspection and copying or reproduction to the custodian designated therein at the principal place of such person, or at such other place as such custodian and such person thereafter may agree and prescribe in writing or as the court may direct, pursuant to this section, on the return date specified in such demand or on such later date as such custodian may prescribe in writing. Such person may, upon written agreement between such person and the custodian, substitute for copies of all or any part of such material originals thereof.
The custodian to whom any documentary material is so delivered shall take physicalpossession thereof and shall be responsible for the use made thereof and for the return thereof pursuant to this article. The custodian may cause the preparation of such copies of such documentary material as may be required for official use under regulations which shall be promulgated by the attorney general or the district attorney. Under such reasonable terms and conditions as the attorney general or district attorney shall prescribe, documentary material, while in the possession of the custodian, shall be available for examination by the person who produced such material or any duly authorized representatives of such person.
Whenever any attorney has been designated to appear on behalf of the state beforeany court or grand jury in any case or proceeding involving any alleged violation of this article, the custodian may deliver to such attorney such documentary material in the possession of the custodian as such attorney determines to be required for use in the presentation of such case or proceeding on behalf of the state. Upon the conclusion of any such case or proceeding, such attorney shall return to the custodian any documentary material so withdrawn which has not passed into the control of such court or grand jury through the introduction thereof into the record of such case or proceeding.
Upon the completion of the racketeering investigation for which any documentarymaterial was produced under this article or in any case or proceeding arising from such investigation, the custodian shall return to the person who produced such material all such material other than copies thereof made by the attorney general or the district attorney pursuant to this subsection (6) which has not passed into the control of any court or grand jury through the introduction thereof into the record of such case or proceeding.
When any documentary material has been produced by any person under this sectionfor use in any racketeering investigation, and no such case or proceeding arising therefrom has been instituted within a reasonable time after completion of the examination and analysis of all evidence assembled in the course of such investigation, such person shall be entitled, upon written demand made upon the attorney general or district attorney, to the return of all documentary material other than copies thereof made pursuant to this subsection (6) so produced by such person.
In the event of the death, disability, or separation from service of the custodian ofany documentary material produced under any demand issued under this section or the official relief of such custodian from responsibility for the custody and control of such material, the attorney general or district attorney shall promptly designate another racketeering investigator to serve as custodian thereof and transmit notice in writing to the person who produced such material as to the identity and address of the successor so designated. Any successor so designated shall have with regard to such materials all duties and responsibilities imposed by this section upon his predecessor in office with regard thereto; except that he shall not be held responsible for any default or dereliction which occurred before his designation as custodian.
Whenever any person fails to comply with any civil investigative demand duly served upon him under this section or whenever satisfactory copying or reproduction of any such material cannot be done and such person refuses to surrender such material, the attorney general or a district attorney may file, in the district court of the state for any judicial district in which such person resides, is found, or transacts business, and serve upon such person a petition for an order of such court for the enforcement of this section.
Within twenty-one days after the service of any such demand upon any person, or atany time before the return date specified in the demand, whichever period is shorter, such person may file, in the district court of the state for the judicial district within which such person resides, is found, or transacts business, and serve upon such custodian a petition for an order of such court modifying or setting aside such demand. The time allowed for compliance with the demand in whole or in part as deemed proper and ordered by the court shall not run during the pendency of such petition in the court. Such petition shall specify each ground upon which the petitioner relies in seeking such relief and may be based upon any failure of such demand to comply with the provisions of this section or upon any constitutional or other legal right or privilege of such person.
At any time during which any custodian is in custody or control of any documentarymaterial delivered by any person in compliance with any such demand, such person may file, in the district court of the state for the judicial district within which the office of such custodian is situated, and serve upon such custodian a petition for an order of such court requiring the performance by such custodian of any duty imposed upon him by this section.
Whenever any petition is filed in any district court of the state under this section,such court shall have jurisdiction to hear and determine the matter so presented and to enter such order or orders as may be required to carry into effect the provisions of this section.
Source: L. 81: Entire article added, p. 1022, § 1, effective July 1. L. 2012: (8) amended,
(SB 12-175), ch. 208, p. 873, § 132, effective July 1. L. 2016: (1) and (6)(a) amended, (HB 161094), ch. 94, p. 270, § 23, effective August 10.