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(1) If any person fails to comply with a request by the department for information, or fails to answer any interrogatory or question asked by deposition, or to produce any tangible evidence including any document related to a complaint under investigation by the department, the department may issue a subpoena, subpoena duces tecum, or other appropriate order requiring the person to supply the information, answer the interrogatory, respond to the question, appear and answer questions under oath, or provide the tangible evidence. If the order is not obeyed, the department may seek a court order enforcing the order.

(2) If a respondent has been given notice of a complaint and the department has requested information in the course of its investigation and respondent fails to answer the information requests within the time specified, the department may take one or more of the following actions to complete its investigative responsibilities:

(a) issue a subpoena, subpoena duces tecum or other appropriate order in accordance with (1) to compel the answering of the information requests, the production of documents, or testimony;

(b) in lieu of issuing a subpoena, issue a determination that the allegations of the complaint are supported by substantial evidence, engage in conciliation and, if unsuccessful, certify the case for contested case hearing where the results of the investigation although incomplete due to the conduct of the uncooperative respondent, are admissible as substantial evidence of discrimination;

(c) draw an adverse inference against respondent as to the evidence sought. Charging party may introduce such an adverse inference finding at the contested case hearing.

History: 49-2-204 and 49-3-106, MCA; IMP, 49-2-203, 49-2-504, 49-2-505, 49-3-307, and 49-3-308, MCA; NEW, Eff. 1/2/77; AMD, 1987 MAR p. 1088, Eff. 7/17/87; AMD, 1998 MAR p. 3201, Eff. 12/4/98.

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