Bodimetric Profiles (Bodimetric) appeals from an order of a Superior Court judge that it comply with a civil investigative demand (C.I.D.) issued by the office of the Attorney General pursuant to G.L.c. 93A, § 6 (1986 ed.). We transferred the case to this court on our own motion. We affirm.
Bodimetric is a division of American Service Bureau, Inc., an Illinois corporation. Bodimetric serves the life and health insurance industry by gathering physical data relating to insurance applicants and by providing that data to insurers. The physical data gathered by Bodimetric sometimes includes blood samples. When drawing blood, Bodimetric uses blood specimen kits which it purchases from one of two out-of-State blood laboratories. Afterwards, Bodimetric sends the blood sample to one of these two laboratories. Bodimetric employs nurses, paramedics, physicians' assistants, and other persons with medical training.
On May 8, 1987, the Attorney General issued a C.I.D., requiring that Bodimetric provide various documents relating to its practices and policies concerning the drawing of blood.
We have not yet ruled directly on whether failure of a recipient of a C.I.D. to bring a motion to modify or set aside the C.I.D. constitutes a waiver by the recipient of all objections to the C.I.D. See Attorney Gen. v. Industrial Nat'l Bank, 380 Mass. 533, 537-538 (1980). We reach that question today, and decide that failure to bring such a motion pursuant to G.L.c. 93A, § 6 (7), constitutes a waiver by the person to whom the C.I.D. is served.
The motion to set aside or modify a C.I.D. is analogous to a motion for a protective order pursuant to Mass. R. Civ. P. 26 (c), 365 Mass. 772 (1974).
Similarly, the recipient of a C.I.D. who objects to the demand has "[t]he burden of showing good cause to set aside or modify the C.I.D." Matter of a Civil Investigative Demand Addressed to Bob Brest Buick, Inc., supra at 719. The recipient may not remain passive, as Bodimetric has done, raising legal arguments only after the Attorney General brings a motion to compel. During the seven months after the Attorney General issued the C.I.D., but before he moved to compel, Bodimetric neither complied with the C.I.D. nor brought an action pursuant to G.L.c. 93A, § 6 (7). We note that Bodimetric did promptly send a letter to the Attorney General stating its objections to the C.I.D. However, Bodimetric also should have filed in court a motion to modify or set aside the C.I.D. Merely informing the Attorney General of its refusal to comply does not suffice to shift the burden to the Attorney General to take the next legal step.
Bodimetric did not meet the procedural requirement incumbent on it as a recipient of a C.I.D. for preserving its objections. Thus, Bodimetric has waived its objections to the C.I.D. Because the procedure to be followed had not been articulated prior to this time, we briefly discuss the merits of Bodimetric's arguments. See Wellesley College v. Attorney Gen., 313 Mass. 722, 731 (1943).
2. Subject matter. The Attorney General asserted as part of his motion to compel that the C.I.D. was necessary to determine whether there had been violations of G.L.c. 111, § 70F (1986 ed.). This statute provides that no health care provider shall test for acquired immunodeficiency syndrome (AIDS) without
a. "General Laws c. 93A, § 6 (1) (b) ... provides that in investigating possible unlawful methods, acts or practices the Attorney General may `examine or cause to be examined any documentary material of whatever nature relevant to such alleged unlawful method, act or practice' (emphasis added). This provision sets forth a relevance test to define the documents the Attorney General may examine pursuant to a valid investigation." Matter of a Civil Investigative Demand Addressed to Yankee Milk, Inc., 372 Mass. 353, 357 (1977).
Bodimetric contends that the C.I.D. should be modified or set aside because G.L.c. 111, § 70F, does not apply to it. Assuming for the sake of argument that Bodimetric is not governed by G.L.c. 111, § 70F,
b. General Laws c. 93A, § 6 (1), grants the Attorney General broad investigatory powers: "The attorney general, whenever he believes a person has engaged in or is engaging in any method, act or practice declared to be unlawful by this chapter, may conduct an investigation to determine whether in fact such person has engaged in or is engaging in such method, act or practice" (emphasis supplied). Bodimetric argues that, because the Attorney General has not demonstrated that he has a "belief" that a person is engaging or has engaged in a violation of G.L.c. 93A, the Attorney General has acted arbitrarily or capriciously. This argument is meritless. In order to issue a C.I.D., the Attorney General of course must "have a belief that a person has engaged in or is engaging in conduct declared to be unlawful by G.L.c. 93A. In these circumstances, the Attorney General must not act arbitrarily or in excess of his statutory authority, but he need not be confident of the probable result of his investigation." CUNA Mut. Ins. Soc'y v. Attorney Gen., supra at 542 n. 5. The Attorney General, however, does not have the burden of showing that he has such a belief. Rather, the recipient who challenges the C.I.D. bears the burden of showing that the Attorney General acted arbitrarily or capriciously in issuing the demand. See Matter of a Civil Investigative Demand Addressed to Bob Brest Buick, Inc., supra at 719. See also CUNA Mut. Ins. Soc'y v. Attorney Gen., supra at 544. An assertion that the Attorney General has not affirmatively
c. Bodimetric argues that the C.I.D. is invalid because it requires Bodimetric to divulge certain trade secrets of the insurance companies it services, and because the C.I.D. requires Bodimetric to intrude on the privacy of the persons from whom it gathers physical data. With both arguments, Bodimetric seeks to assert the rights of others: respectively, the rights of the insurance companies and of the individuals who are tested by Bodimetric. Bodimetric lacks standing to make these arguments. "Ordinarily, one may not claim standing in this Court to vindicate the ... rights of some third party." Slama v. Attorney Gen., 384 Mass. 620, 624 (1981), quoting Barrows v. Jackson, 346 U.S. 249, 255 (1953). See Beard Motors, Inc. v. Toyota Motor Distribs., Inc., 395 Mass. 428, 432 (1985). Bodimetric may have agreed with others to keep certain information confidential but that agreement does not bind the Attorney General.
3. Burden. Bodimetric argues that the burden imposed on it in requiring production of the documents outweighs the Attorney General's need for the material. We disagree. Documentary