Senate Bill No. 378

(By Senators Minard, Jenkins, Bowman, Rowe and Hunter)


[Introduced January 28, 2003; referred to the Committee on Banking and Insurance; and then to the Committee on the Judiciary.]


A BILL to amend and reenact section four, article two, chapter thirty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to the subpoena power of the office of the insurance commissioner.

Be it enacted by the Legislature of West Virginia:
That section four, article two, chapter thirty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
§33-2-4. Authority to take depositions, subpoena witnesses, etc.

The commissioner, or any person conducting a hearing or investigation by his authority, shall have power to take depositions, subpoena witnesses and compel their attendance, administer oaths, examine any person under oath, compel any person to subscribe to his testimony after it has been correctly reduced to writing and require the production of any books, papers, records, correspondence or other documents which he deems relevant to the inquiry.
(a) For the purpose of any investigation or proceeding under this chapter, the commissioner or any officer designated by him or her may administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence, and require the production of any books, papers, correspondence, memoranda, agreements, or other documents or records which the commissioner considers relevant or material to the inquiry. The commissioner's authority to subpoena witnesses and documents outside the state shall exist to the maximum extent permissible under federal constitutional law.
(b) Subpoenas may be issued to any person and may require that person, among other things, to:
(1) Testify under oath;
(2) Answer written interrogatories under oath;
(3) Produce documents and tangible things; and
(4) Permit inspection and copying of documents.
(c) Content of subpoena. A subpoena shall:
(1) Describe generally the nature of the investigation;
(2) If the subpoena requires testimony under oath, specify the date, time and place for the taking of testimony;
(3) If the subpoena requires answers to written interrogatories, contain a copy of the written interrogatories;
(4) If the subpoena requires the production of tangible things or documents:
(A) Describe the things and documents to be produced with reasonable specificity; and
(B) Specify a date, time, and place at which the things and documents are to be produced;
(5) Notify the person to whom the subpoena is directed of the obligation to supplement responses;
(6) Advise the person to whom the subpoena is directed that the person may be represented by counsel; and
(7) Identify a member of the office of the insurance commissioner who may be contacted in reference to the subpoena.
(d) Subpoenas to corporations and other entities:
(1) A subpoena directed to a corporation, partnership or other business entity that requires testimony under oath shall describe with reasonable particularity the subject matter of the testimony;
(2) An entity that receives a subpoena to answer written interrogatories or to testify under oath shall designate one or more of its officers, agents, employees, or other authorized persons familiar with the subject matter specified in the subpoena to respond to the subpoena on its behalf;
(3) The persons designated by an entity to respond to a subpoena on its behalf shall answer the interrogatories or testify as to all matters known or reasonably available to the entity;
(4) A subpoena directed to an entity that requires testimony under oath or answers to written interrogatories shall advise the entity of its obligations under this section.
(e) Effect of other proceedings. The pendency or beginning of administrative or judicial proceedings against a person by the commissioner does not relieve the person of his or her obligation to respond to a subpoena issued under this section.
(f) Subpoenas for interrogatories and answers and requests for production of documents or tangible things and answers propounded and obtained under this section pursuant to an investigation are exempted from disclosure under the provisions of article one, chapter twenty-nine-b of the West Virginia code, one thousand nine hundred thirty-one, as amended and are not open to public inspection and the commissioner may not disclose facts or information obtained from the investigation except as the official duty of the commissioner requires.
(g) Nothing in this section prohibits the commissioner from providing information or receiving information from any local, state, federal or international law-enforcement authorities, including any prosecuting authority; or from complying with subpoenas or other lawful process in criminal proceedings, other action by the state; or as may otherwise be provided in this article.

NOTE: The purpose of this bill is to amend section four, article two, chapter thirty-three of the code of West Virginia to define the content of subpoenas that may be issued by the Insurance Commissioner; the duties of persons, corporations or entities which receive subpoenas; and exempt responses to subpoenas issued in investigations from public record disclosure under 29B-1 of the code.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.