DE: Agency investigative SDT akin to GJ’s

An agency investigative subpoena duces tecum is akin to a grand jury’s, following Morton Salt and Powell. State Dept. of Finance v. AT&T Inc., 2021 Del. LEXIS 178 (June 1, 2021):

We agree with the Department on several points when it comes to the court’s inquiry into an abuse of the court’s process. First, it is correct that the proper scope of the subpoena and the reasonableness of the requested information is addressed under the second Powell factor-whether the information requested is relevant to the purpose of the investigation being conducted by the Department. We also agree with the Department that once the Court of Chancery found that the Department had satisfied the Powell factors, AT&T bore a heavy burden to rebut the presumption that the Department was acting in good faith in pursuing its investigation. Further, we agree with the Department that there is nothing inherently wrong with the State’s designated representative, Kelmar, operating under a contingency fee arrangement and, when permitted, collaborating with other states on audits. And finally, the Department is correct that parties should be able to narrow the breadth of a subpoena by representations made to the court without having to serve an amended subpoena.

We part company with the Department, however, when it comes to the court’s authority to have the Department address its questions about the breadth of the subpoena and Kelmar’s incentives. As recognized earlier, the Department enjoys a strong presumption of good faith. That strong presumption comes from satisfying the Powell factors. Yet even though the court’s role is extremely constrained when deciding whether enforcing an administrative subpoena would be an abuse of the court’s process, it still exists. When the court has questions about the appropriateness of a subpoena, it is within the court’s discretion to inquire further, or to hold an evidentiary hearing to clear up disputed facts, before enforcing the subpoena.