§480-18  Investigation.  (a)  Whenever
it appears to the attorney general, either upon complaint or otherwise, that
any person or persons have engaged in or engages in or is about to engage in
any act or practice by this chapter prohibited or declared to be illegal, or
that any person or persons have assisted or participated in any plan, scheme,
agreement, or combination of the nature described herein, or whenever the
attorney general believes it to be in the public interest that an investigation
be made, the attorney general may in the attorney general's discretion either
require or permit the complainant to file with the attorney general a statement
in writing under oath or otherwise as to all the facts and circumstances
concerning the subject matter which the attorney general believes to be in the
public interest to investigate.  The attorney general may also require such
other data and information from the complainant as the attorney general deems
relevant and may make such special and independent investigations as the
attorney general deems necessary in connection with the matter.



(b)  Whenever the attorney general has reason
to believe that any person may be in possession, custody, or control of any
documentary material, objects, tangible things, or information (hereinafter
referred to as "documentary evidence") pertinent to any investigation
of a possible violation of this chapter and before the filing of any complaint
in court, the attorney general may issue in writing, and cause to be served
upon the person, an investigative demand requiring the person to produce the
documentary evidence for examination.



(c)  Each such demand shall:



(1)  State the alleged violation of the section or
sections of this chapter which are under investigation;



(2)  Describe and fairly identify the documentary
evidence to be produced, or to be answered;



(3)  Prescribe a return date within a reasonable
period of time during which the documentary evidence demanded may be assembled
and produced;



(4)  Identify the custodian to whom such documentary
evidence are to be delivered; and



(5)  Specify a place at which such delivery is to be
made.



(d)  No such demand shall:



(1)  Contain any requirement which would be held to be
unreasonable if contained in a subpoena duces tecum issued by a court of this
State in aid of a grand jury investigation of the possible violation; or



(2)  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 this State in aid of a grand jury
investigation of the possible violation.



(e)  Any such demand may be served by any
attorney employed by or other authorized employee of this State at any place
within the territorial jurisdiction of any court of this State.



(f)  Service of any such demand or of any
petition filed under subsection (o) of this section, may be made upon a
partnership, trust, corporation, association, or other legal entity by:



(1)  Delivering a duly executed copy thereof to any
partner, trustee, executive officer, managing agent, or general agent thereof,
or to any agent thereof authorized by appointment or by law to receive service
or process on behalf of the partnership, trust, corporation, association, or
entity; or



(2)  Delivering a duly executed copy thereof to the
principal office or place of business in this State of the partnership, trust,
corporation, association, or entity to be served; or



(3)  Depositing the copy in the United States mail, by
registered or certified mail duly addressed to the partnership, trust,
corporation, association, or entity at its principal office or place of
business in this State.



(g)  A verified return by the individual
serving any such demand or petition setting forth the manner of the service
shall be proof of the service.  In the case of service by registered or
certified mail, the return shall be accompanied by the return post office
receipt of delivery of the demand or petition.



(h)  The attorney general shall designate a
representative to serve as custodian of any documentary evidence, and such
additional representatives as the attorney general shall determine from time to
time to be necessary to serve as deputies to such officer.



(i)  Any person upon whom any demand issued
under subsection (b) has been duly served shall deliver such documentary
evidence to the custodian designated therein at the place specified therein (or
at such other place as the custodian thereafter may prescribe in writing) on
the return date specified in the demand (or on such later date as the custodian
may prescribe in writing).  No such demand or custodian may require delivery of
any documentary evidence to be made:



(1)  At any place outside the territorial jurisdiction
of this State without the consent of the person upon whom such demand was
served; or



(2)  At any place other than the place at which such
documentary evidence is situated at the time of service of the demand until the
custodian has tendered to the person a sum sufficient to defray the cost of
transporting the material to the place prescribed for delivery or the
transportation thereof to such place at government expense.



(j)  The custodian to whom any documentary
evidence is delivered shall take physical possession thereof, and shall be
responsible for the use made thereof and for the return thereof pursuant to
this section.  The custodian shall issue a receipt for such evidence received. 
The custodian may cause the preparation of such copies of the documentary
evidence as may be required for official use by any individual who is entitled,
under regulations which shall be promulgated by the attorney general, to have
access to the evidence for examination.  While in the possession of the
custodian, no such evidence so produced shall be available for examination,
without the consent of the person who produced the evidence, by any individual
other than a duly authorized representative of the office of the attorney
general.  Under such reasonable terms and conditions as the attorney general
shall prescribe, documentary evidence while in the possession of the custodian
shall be available for examination by the person who produced the evidence or
any duly authorized representative of the person.



(k)  Whenever any attorney has been designated
to appear on behalf of this State before any court or grand jury in any case or
proceeding involving any alleged violation of this chapter, the custodian may
deliver to the attorney such documentary evidence in the possession of the
custodian as the attorney determines to be required for use in the presentation
of the case or proceeding on behalf of this State.  Upon the conclusion of any
such case or proceeding, the attorney shall return to the custodian any
documentary evidence so withdrawn which has not passed into the control of
court or grand jury through the introduction thereof into the record of the
case or proceeding.



(l)  Upon the completion of the investigation
for which any documentary evidence was produced under this section, and any
case or proceeding arising from the investigation, the custodian shall return
to the person who produced the evidence all the evidence (other than copies
thereof made by the attorney general or the attorney general's representative
pursuant to subsection (j) of this section) which has not passed into the
control of any court or grand jury through the introduction thereof into the
record of the case or proceeding.



(m)  When any documentary evidence has been
produced by any person under this section for use in any 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 court of such investigation, the person shall be
entitled, upon written demand made upon the attorney general to the return of
all documentary evidence (other than copies thereof made by the attorney
general or the attorney general's representative pursuant to subsection (j) of
this section) so produced by the person.



(n)  In the event of the death, disability, or
separation from service in the office of the attorney general of the custodian
of any documentary evidence produced under any demand issued under this
section, or the official relief of the custodian from responsibility for the
custody and control of the evidence, the attorney general shall promptly
designate another representative to serve as custodian thereof, and transmit
notice in writing to the person who produced the evidence as to the identity
and address of the successor designated.  Any successor so designated shall
have with regard to such evidence all duties and responsibilities imposed by
the section upon the successor's predecessor in office with regard thereto,
except that the successor shall not be held responsible for any default or dereliction
which occurred before the successor's designation as custodian.



(o)  Whenever any person fails to comply with
any investigative demand duly served upon the person under subsection (f) of
this section, the attorney general, through such officers or attorneys as the
attorney general may designate, may file, in the district court of any county
in which the person resides, is found, or transacts business, and serve upon
the person a petition for an order of the court for the enforcement of the demand,
except that if the person transacts business in more than one such county the
petition shall be filed in the county in which the person maintains the
person's principal place of business, or in such other county in which such
person transacts business as may be agreed upon by the parties to the
petition.  The person shall be entitled to be heard in opposition to the
granting of any such petition.



(p)  Within twenty days after the service of
any such demand upon any person, or at any time before the return date
specified in the demand, whichever period is shorter, the person may file, in
the district court of the county within which the office of the custodian
designated therein is situated, and serve upon the custodian a petition for an
order of the court modifying or setting aside such demand.  The petition shall
specify each ground upon which the petitioner relies in seeking such relief,
and may be based upon any failure of the demand to comply with this section, or
upon any constitutional right or privilege of the person.



If the court does not set aside the demand, the
person shall be assessed court cost and reasonable attorneys fees and such
other penalties not greater than those specified under section 480-16.  If the
court sets aside the demand, the person shall be given the total cost of the
petition.



(q)  At any time during which any custodian is
in custody or control of any documentary evidence delivered by any person in
compliance with any such demand, the person may file, in the district court of
the county within which the office of the custodian is situated, and serve upon
the custodian a petition for an order of the court requiring the performance by
the custodian of any duty imposed upon the custodian by this section.



(r)  Whenever the attorney general has reason
to believe that any person has information pertinent to any investigation of a
possible violation of this chapter and before the filing of any complaint in
court, the attorney general may seek a subpoena from the clerk of the district
court in the county where the person resides, is found, or transacts business,
requiring the person's presence to appear before a district judge licensed to
practice law in the supreme court of this State to give oral testimony under
oath on a specified date, time, and place.  The clerk of the district court may
also issue a subpoena duces tecum under like conditions at the request of the
attorney general.  Any witness subpoenaed shall be entitled to be represented
by counsel and any subpoena shall state the alleged violation of the section or
sections of this chapter.  The scope and manner of examination shall be in
accordance with the rules governing depositions as provided in the Hawaii rules
of civil procedure.  The person subpoenaed may at any time before the date
specified for the taking of the oral testimony, move to quash any subpoena
before the district judge from whose court any subpoena was issued for such
grounds as may be provided for quashing a subpoena in accordance with the rules
governing depositions as set forth in the Hawaii rules of civil procedure.



(s)  No person shall be excused from attending
an inquiry pursuant to the mandates of a subpoena, or from producing any
documentary evidence, or from being examined or required to answer questions on
the ground of failure to tender or pay a witness fee or mileage unless demand
therefor is made at the time testimony is about to be taken and as a condition
precedent to offering such production or testimony and unless payment thereof
be not thereupon made.  The provisions for payment of witness fee and mileage
do not apply to any officer, director, or person in the employ of any person or
persons whose conduct or practices are being investigated.  No person who is
subpoenaed to attend the inquiry, while in attendance upon the inquiry, shall,
without reasonable cause, refuse to be sworn or to answer any question or to
produce any book, paper, document, or other record when ordered to do so by the
officer conducting the inquiry, or fail to perform any act hereunder required
to be performed.



(t)  Whoever, with intent to avoid, evade,
prevent, or obstruct compliance in whole or in part, by any person with any
investigative demand made under this section, wilfully removes from any place,
conceals, withholds, destroys, mutilates, alters, or by any other means
falsifies any documentary evidence in the possession, custody, or control of
any person which is the subject of any such demand duly served upon any person
shall be fined not more than $5,000 or imprisoned not more than one year, or
both.  Any person wilfully failing to comply with a subpoena issued pursuant to
subsection (r) of this section shall be fined not more than $1,000 or
imprisoned not more than one year, or both.



(u)  Nothing in this section shall impair the
authority of the attorney general or the attorney general's representatives to
lay before any grand jury impaneled before any circuit court of this State any
evidence concerning any alleged violation of this chapter, invoke the power of
any such court to compel the production of any evidence before any such grand
jury, or institute any proceeding for the enforcement of any order or process
issued in execution of such power, or to punish disobedience of any such order
or process by any person.



(v)  As used in this section the term
"documentary material" includes the original or any copy of any book,
record, report, memorandum, paper, communication, tabulation, chart, or other
document.



(w)  All public officers, their deputies,
assistants, clerks, subordinates, and employees shall render and furnish to the
attorney general, the attorney general's deputy, or other designated
representatives when so requested, all information and assistance in their
possession or within their power.



(x)  Any officer participating in the inquiry
and any person examined as a witness upon the inquiry who wilfully discloses to
any person other than the attorney general the name of any witness examined or
any other information obtained upon the inquiry, except as so directed by the
attorney general shall be punishable by a fine of not more than $1,000 or
imprisonment for not more than one year, or both.



(y)  The enumeration and specification of
various processes do not preclude or limit the use of processes under the
Hawaii rules of civil procedure but are deemed to be supplementary to the rules
or the use of any other lawful investigative methods which are available. [L
1961, c 190, §16; am L 1963, c 193, §60; Supp, §205A-16; HRS §480-18; am L
1970, c 188, §39; gen ch 1985]



 



Rules of Court



 



  Depositions, see Hawaii Rules of Civil Procedure, part V.



  Subpoenas, see HRCP rule 45.