A. If the attorney general or a district attorney has reasonable cause to believe that a person has information or may be in possession, custody or control of any document or other tangible object relevant to a civil investigation for violation of the New Mexico Subdivision Act, the attorney general or the district attorney, or both, may before bringing any action apply to the district court of Santa Fe county, or any county where the district attorney has his office, for approval of a civil investigative demand, demanding, in writing, such person to appear and be examined under oath, to answer written interrogatories under oath or to produce the document or object for inspection and copying. The demand shall:

(1) be served upon the person in the manner required for service of process in this state or, if the person cannot be found or does not reside or maintain a principal place of business within this state, in the manner required for service of process in the state in which the person resides, maintains a principal place of business or can be found;

(2) describe the nature of the conduct under investigation;

(3) describe the class of documents or objects with sufficient definiteness to permit it to be fairly identified if the production of documents or objects is requested;

(4) contain a copy of the written interrogatories if answers to written interrogatories are sought;

(5) prescribe a reasonable time at which the person shall appear to testify or within which the document or object must be produced;

(6) specify a place for the taking of testimony or for production of the document or object and designate a person who may be an authorized employee of the attorney general or district attorney to be custodian of the document or object; and

(7) contain a copy of Subsections C through E of this section.

B. No demand to produce a document or object for inspection and copying shall contain any requirement that would be unreasonable or improper if contained in a subpoena duces tecum issued in a civil proceeding by a district court of this state. The district court shall approve the demand if it finds that the attorney general or district attorney has reasonable cause to believe that a person has information or may be in possession, custody or control of any document or other tangible object relevant to a civil investigation for violation of the New Mexico Subdivision Act and that the demand is proper in form. A demand shall not be issued without approval of the district court.

C. If a person fails to comply with the written demand served upon him under the provisions of Subsection A of this section, the attorney general or district attorney may file a petition for an order to enforce the demand in the district court of the county in which the person resides or in which he maintains a principal place of business within this state or of the county of Santa Fe if the person neither resides nor has a principal place of business in this state. Notice of hearing on the petition and a copy of the petition shall be served upon the person, who may appear in opposition to the petition. If the court finds that the demand is proper in form and there is reasonable cause to believe that the person has information or may be in possession, custody or control of any document or other tangible object relevant to a civil investigation for violation of the New Mexico Subdivision Act, the court shall order the person to comply with the demand, subject to any modification that the court may prescribe. Upon motion by the person and for good cause shown, the court may make any further protective order in the proceedings that justice requires.

D. Prior to the filing of an action under the provisions of the New Mexico Subdivision Act for the violation under investigation, any testimony taken or material produced under this section shall be kept confidential by the attorney general or district attorney unless confidentiality is waived by the person being investigated and the person who has testified, answered interrogatories or produced material, or unless disclosure is authorized by the court. Any testimony taken or material produced under this section shall be open to inspection only to the attorney general or district attorney and the person upon whom the demand for which inspection is sought has been served, unless otherwise ordered by the court.

E. Any person compelled to appear under this section and required to testify under oath may be accompanied, represented and advised by counsel. An objection may properly be made, received and entered upon the record when it is claimed that the person is entitled to refuse to answer the question on grounds of any constitutional or other legal right or privilege.

History: 1978 Comp., § 47-6-25.1, enacted by Laws 1981, ch. 148, § 7; 1995, ch. 212, § 27.

Bracketed material. — The bracketed words "this article" In Subsection A were added by the compiler and are not part of the law.

The 1995 amendment, effective July 1, 1996, substituted "Subsections C through E" for "Subsections B through D" in Paragraph (A)(7); designated the former second paragraph of Subsection A as Subsection B; redesignated former Subsections B through E as Subsections C through E; and made minor stylistic changes.