A. Whenever the attorney general has reason to believe that any person may be in possession, custody or control of an original or copy of any book, record, report, memorandum, paper, communication, tabulation, map, chart, photograph, mechanical transcription or other tangible document or recording which he believes to be relevant to the subject matter of an investigation of a probable violation of the Unfair Practices Act, he may, prior to the institution of a civil proceeding, execute in writing and cause to be served upon the person a civil investigative demand requiring such person to produce documentary material and permit the inspection and copying of the material. The demand of the attorney general shall not be a matter of public record and shall not be published by him except by order of the court.
B. Each demand shall:
(1) state the general subject matter of the investigation;
(2) describe the classes of documentary material to be produced with reasonable certainty;
(3) prescribe the return date within which the documentary material is to be produced, which in no case shall be less than ten days after the date of service; and
(4) identify the members of the attorney general's staff to whom such documentary material is to be made available for inspection and copying.
C. No demand shall:
(1) contain any requirement which would be unreasonable or improper if contained in a subpoena duces tecum issued by a court of this state; or
(2) require the disclosure of any documentary material which would be privileged, or which for any other reason would not be required by a subpoena duces tecum issued by a court of this state;
(3) require the removal of any documentary material from the custody of the person upon whom the demand is served except in accordance with the provisions of Subsection E.
D. Service of the demand may be made by:
(1) delivering a duly executed copy thereof to the person to be served, or if the person is not a natural person, to the statutory agent for the person or to any officer of the person to be served; or
(2) delivering a duly executed copy thereof to the principal place of business in this state of the person to be served; or
(3) mailing by registered or certified mail a duly executed copy of the demand addressed to the person to be served at his principal place of business in this state, or, if the person has no place of business in this state, to his principal office or place of business.
E. Documentary material demanded pursuant to the provisions of this section shall be produced for inspection and copying during normal business hours at the principal office or place of business of the person served or may be inspected and copied at such other times and places as may be agreed upon by the person served and the attorney general.
F. No documentary material produced pursuant to a demand, or copies thereof, shall, unless otherwise ordered by the district court in the county in which the person resides or has his principal place of business, or is about to [perform] or is performing the practice which is alleged to be unlawful under the Unfair Practices Act, for good cause shown, be produced for inspection or copying by anyone other than an authorized employee of the attorney general, nor shall the contents thereof be disclosed to anyone other than an authorized employee of the attorney general, or in court in an action relating to a violation of the Unfair Practices Act.
G. At any time before the return date of the demand, a petition to set aside the demand, modify the demand or extend the return date thereon may be filed in the district court in the county in which the person resides or has his principal place of business, or is about to [perform] or is performing the practice which is alleged to be unlawful under the Unfair Practices Act, and the court upon a showing of good cause may set aside the demand, modify it or extend the return date of the demand.
H. After service of the investigative demand upon him, if any person neglects or refuses to comply with the demand, the attorney general may invoke the aid of the court in the enforcement of the demand. In appropriate cases the court shall issue its order requiring the person to appear and produce the documentary material required in the demand and may upon failure of the person to comply with the order punish the person for contempt.
I. This section shall not be applicable to criminal prosecutions.
History: 1953 Comp., § 49-15-10, enacted by Laws 1967, ch. 268, § 10.
ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Compiler's notes. — Laws 1967, ch. 268, contained two sections numbered 10. The 1953 compiler has designated the first of these 49-15-10, 1953 Comp., and the other 49-15-11, 1953 Comp (57-12-13 NMSA 1978).
Cross references. — For production of documentary evidence, see Rule 1-045B NMRA.
An arbitration agreement contrary to public policy under the UPA will not be enforced. — Where the state of New Mexico filed suit against ITT Technical Institute (ITT) claiming violations of the New Mexico Unfair Practices Act (UPA) arising out of alleged misrepresentations to students about ITT's nursing program and its financial process, and where ITT filed a motion to compel arbitration in accordance with the arbitration provision, and accompanying confidentiality clause, in the students' enrollment agreements with ITT, which provided that any dispute be resolved by binding arbitration, the district court properly declined to enforce the confidentiality clause and properly denied ITT's motion to compel arbitration, because the state, under the UPA, has been given broad statutory authority to investigate violations and enforce the provisions of the UPA demonstrating New Mexico's fundamental public policy in favor of preventing consumer harm and resolving consumer claims, and it would be contrary to public policy to allow ITT to use the confidentiality clause with its students to shield itself from the state's investigation and litigation authorized under the UPA. State ex rel. Balderas v. ITT Educ. Servs., Inc., 2018-NMCA-044.
Law reviews. — For article, "Consumer Class Actions Under the New Mexico Unfair Practices Act," see 4 N.M.L. Rev. 49 (1973).
For note, "State Securities Law: A Valuable Tool for Regulating Investment Land Sales," see 7 N.M.L. Rev. 265 (1977).
For article, "New Mexico Restraint of Trade Statutes - A Legislative Proposal," see 9 N.M.L. Rev. 1 (1978-79).