BILL REQ. #:  S-4630.1 

Read first time 01/28/08.   Referred to Committee on Consumer Protection & Housing.

     AN ACT Relating to authorizing county prosecutors and city attorneys to enforce certain provisions of the consumer protection act; and amending RCW 19.86.080 and 19.86.110.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 19.86.080 and 2007 c 66 s 1 are each amended to read as follows:
     (1) The attorney general, county prosecutors, or city attorneys may bring an action in the name of ((the state)) their jurisdiction, or as parens patriae on behalf of persons residing in ((the state)) their jurisdiction, against any person to restrain and prevent the doing of any act herein prohibited or declared to be unlawful within their jurisdiction; and the prevailing party may, in the discretion of the court, recover the costs of said action including a reasonable attorney's fee.
     (2) The court may make such additional orders or judgments as may be necessary to restore to any person in interest any moneys or property, real or personal, which may have been acquired by means of any act herein prohibited or declared to be unlawful.
     (3) Upon a violation of RCW 19.86.030, 19.86.040, 19.86.050, or 19.86.060, the court may also make such additional orders or judgments as may be necessary to restore to any person in interest any moneys or property, real or personal, which may have been acquired, regardless of whether such person purchased or transacted for goods or services directly with the defendant or indirectly through resellers. The court shall exclude from the amount of monetary relief awarded in an action pursuant to this subsection any amount that duplicates amounts that have been awarded for the same violation. The court should consider consolidation or coordination with other related actions, to the extent practicable, to avoid duplicate recovery.

Sec. 2   RCW 19.86.110 and 1993 c 125 s 1 are each amended to read as follows:
     (1)(a) Whenever the attorney general, a county prosecutor, or a city attorney believes that any person (((a))) (i) may be in possession, custody, or control of any original or copy of any book, record, report, memorandum, paper, communication, tabulation, map, chart, photograph, mechanical transcription, or other tangible document or recording, wherever situate, which he or she believes to be relevant to the subject matter of an investigation of a possible violation of RCW 19.86.020, 19.86.030, 19.86.040, 19.86.050, or 19.86.060, or federal statutes dealing with the same or similar matters that the attorney general, county prosecutor, or city attorney is authorized to enforce, or (((b))) (ii) may have knowledge of any information which the attorney general, county prosecutor, or city attorney believes relevant to the subject matter of such an investigation, he or she may, prior to the institution of a civil proceeding thereon, execute in writing and cause to be served upon such a person, a civil investigative demand requiring such person to produce such documentary material and permit inspection and copying, to answer in writing written interrogatories, to give oral testimony, or any combination of such demands pertaining to such documentary material or information: PROVIDED, That this section shall not be applicable to criminal prosecutions.
     (b) A copy of any civil investigative demand issued or complaint filed by a county prosecutor or city attorney under this chapter must be promptly delivered to the attorney general.
     (2) Each such demand shall:
     (a) State the statute and section or sections thereof, the alleged violation of which is under investigation, and the general subject matter of the investigation;
     (b) If the demand is for the production of documentary material, describe the class or classes of documentary material to be produced thereunder with reasonable specificity so as fairly to indicate the material demanded;
     (c) Prescribe a return date within which the documentary material is to be produced, the answers to written interrogatories are to be made, or a date, time, and place at which oral testimony is to be taken; and
     (d) Identify the members of the ((attorney general's)) staff of the attorney general, county prosecutor, or city attorney to whom such documentary material is to be made available for inspection and copying, to whom answers to written interrogatories are to be made, or who are to conduct the examination for oral testimony.
     (3) No such demand shall:
     (a) Contain any requirement which would be unreasonable or improper if contained in a subpoena duces tecum, a request for answers to written interrogatories, or a request for deposition upon oral examination issued by a court of this state; or
     (b) 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.
     (4) Service of any such demand may be made by:
     (a) Delivering a duly executed copy thereof to the person to be served, or, if such person is not a natural person, to any officer or managing agent of the person to be served; or
     (b) Delivering a duly executed copy thereof to the principal place of business in this state of the person to be served; or
     (c) Mailing by registered or certified mail a duly executed copy thereof addressed to the person to be served at the principal place of business in this state, or, if said person has no place of business in this state, to his or her principal office or place of business.
     (5)(a) 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 at such other times and places as may be agreed upon by the person served and the attorney general, county prosecutor, or city attorney;
     (b) Written interrogatories in a demand served under this section shall be answered in the same manner as provided in the civil rules for superior court;
     (c) The oral testimony of any person obtained pursuant to a demand served under this section shall be taken in the same manner as provided in the civil rules for superior court for the taking of depositions. In the course of the deposition, the assistant attorney general, assistant county prosecutor, or assistant city attorney conducting the examination may exclude from the place where the examination is held all persons other than the person being examined, the person's counsel, and the officer before whom the testimony is to be taken;
     (d) Any person compelled to appear pursuant to a demand for oral testimony under this section may be accompanied by counsel;
     (e) The oral testimony of any person obtained pursuant to a demand served under this section shall be taken in the county within which the person resides, is found, or transacts business, or in such other place as may be agreed upon between the person served and the attorney general, county prosecutor, or city attorney.
     (6) If, after prior court approval, a civil investigative demand specifically prohibits disclosure of the existence or content of the demand, unless otherwise ordered by a superior court for good cause shown, it shall be a misdemeanor for any person if not a bank, trust company, mutual savings bank, credit union, or savings and loan association organized under the laws of the United States or of any one of the United States to disclose to any other person the existence or content of the demand, except for disclosure to counsel for the recipient of the demand or unless otherwise required by law.
     (7) No documentary material, answers to written interrogatories, or transcripts of oral testimony produced pursuant to a demand, or copies thereof, shall, unless otherwise ordered by a superior court for good cause shown, be produced for inspection or copying by, nor shall the contents thereof be disclosed to, other than an authorized employee of the attorney general, county prosecutor, or city attorney, without the consent of the person who produced such material, answered written interrogatories, or gave oral testimony, except as otherwise provided in this section: PROVIDED, That:
     (a) Under such reasonable terms and conditions as the attorney general, county prosecutor, or city attorney shall prescribe, the copies of such documentary material, answers to written interrogatories, or transcripts of oral testimony shall be available for inspection and copying by the person who produced such material, answered written interrogatories, or gave oral testimony, or any duly authorized representative of such person;
     (b) The attorney general, county prosecutor, or city attorney may provide copies of such documentary material, answers to written interrogatories, or transcripts of oral testimony to an official of this state, the federal government, or other state, who is charged with the enforcement of federal or state antitrust or consumer protection laws, if before the disclosure the receiving official agrees in writing that the information may not be disclosed to anyone other than that official or the official's authorized employees. The county prosecutor or city attorney shall provide copies of such documentary material, answers to written interrogatories, or transcripts of oral testimony to an appropriate member of the attorney general's staff, unless the attorney general directs otherwise. The material provided under this subsection (7)(b) is subject to the confidentiality restrictions set forth in this section and may not be introduced as evidence in a criminal prosecution; and
     (c) The attorney general or any assistant attorney general, or attorneys authorized by the county prosecutor or city attorney, may use such copies of documentary material, answers to written interrogatories, or transcripts of oral testimony as ((he)) they determine((s)) necessary in the enforcement of this chapter, including presentation before any court: PROVIDED, That any such material, answers to written interrogatories, or transcripts of oral testimony which contain trade secrets shall not be presented except with the approval of the court in which action is pending after adequate notice to the person furnishing such material, answers to written interrogatories, or oral testimony.
     (8) At any time before the return date specified in the demand, or within twenty days after the demand has been served, whichever period is shorter, a petition to extend the return date for, or to modify or set aside a demand issued pursuant to subsection (1) of this section, stating good cause, may be filed in the superior court for Thurston county, or in such other county where the county prosecutor, city attorney, or parties reside. A petition, by the person on whom the demand is served, stating good cause, to require the attorney general, county prosecutor, or city attorney or any person to perform any duty imposed by the provisions of this section, and all other petitions in connection with a demand, may be filed in the superior court for Thurston county, or in the county where the county prosecutor, city attorney, or parties reside. The court shall have jurisdiction to impose such sanctions as are provided for in the civil rules for superior court with respect to discovery motions.
     (9) Whenever any person fails to comply with any civil investigative demand for documentary material, answers to written interrogatories, or oral testimony duly served upon him or her 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, county prosecutor, or city attorney may file, in the trial court of general jurisdiction of the county 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, except that if such person transacts business in more than one county such petition shall be filed in the county in which such person maintains his or her principal place of business, or in such other county as may be agreed upon by the parties to such petition. Whenever any petition is filed in the trial court of general jurisdiction of any county 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, and may impose such sanctions as are provided for in the civil rules for superior court with respect to discovery motions.