A Superior Court judge on Tuesday declined state Rep. Gordon Fox's motion to quash a subpoena in the 38 Studios lawsuit.
Fox is not named in the lawsuit, but defense attorneys want to question him about what he knew about the deal and when he knew it. He will either have to answer questions related to the investigation or invoke the Fifth Amendment.
State police and federal agents raided Fox's Providence home and State House office in March. Authorities have declined to comment.
Fox's attorney, Albin Moser, argued the ongoing investigation means his client can't answer questions in a separate civil lawsuit involving 38 Studios.
"Any testimony concerning 38 Studios could be used under these circumstances as a prosecutorial lead or as a link in the chain of evidence that would be intended to incriminate Mr. Fox," Moser said.
But Judge Michael Silverstein didn't buy the argument. He agreed with the lawyers for banks and insurance companies involved in the 38 Studios case who say they should have the chance to question Fox.
"The court is not inclined at this point nor does it believe it should quash the subpoena," Silverstein said.
Moser said Fox will likely assert his Fifth Amendment rights and refuse to answer almost any question, even if he has to repeat the same response hundreds of times.
"When you get down to the nitty-gritty as to what actually happened relative to 38 Studios, he most assuredly will be pleading the Fifth," NBC 10 legal analyst Mark Dana said.
Dana said that's the smart move because Fox may be facing criminal charges. But it could also hurt Fox when it comes to public perception.
"It does have a public relations issue. But the problem is that he'd have a bigger public relations issue if he's convicted based on something he said in a deposition," Dana said.
The entire process could drag on for weeks or even months.
"This may go back to Judge Silverstein on a question-by-question basis. Is this a question that might incriminate him? Is this a question that might incriminate him? So, we'll just have to wait and see," Dana said.
The NBC 10 I-Team reported last week that internal documents from 38 Studios show Fox, former House Speaker William Murphy and deal-maker Michael Corso apparently signed non-disclosure agreements with 38 Studios on the same day in October 2009, months before a deal to bring Curt Schilling's video game company to Rhode Island from Massachusetts was supposedly discussed.
It's one of the things that defense attorneys in the civil suit want Fox to explain.
"We're entitled to learn the things that we need to learn to be able to present those to the jury when the time comes for trial," said Adam Ramos, an attorney for First Southwest.
Fox did not appear in court. He previously declined comment when asked about the non-disclosure agreement.