Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a) Definitions
(1) "Testimonial subpoena" means a subpoena that solely requires a witness to appear at a Board hearing.
(2) "Records subpoena" means a subpoena that requires production of documents, electronically stored information, video records, audio records, or other records or things, either at a Board hearing or at a time and location in advance of such a hearing. A records subpoena may also require a witness to appear at a Board hearing to testify.
(3) "Declaration of materiality" means a declaration signed under penalty of perjury, submitted by the requesting party or that party's representative, which:
(A) Describes the requested items; and
(B) Explains why the requested items are relevant to the issues involved in the case.
(4) "Consumer or employee notice" means a notice provided to a non-party consumer or employee as set forth in Code of Civil Procedure sections 1985.3 and 1985.6.
(b) Geographic Coverage of Subpoenas: Testimonial and records subpoenas issued shall extend to all parts of the State of California.
(c) Requests to Shorten or Lengthen Timelines: A Board agent has discretion to alter the timelines under subsections (d), (e), (f), (g) and (i).
(d) Procedures for Obtaining Subpoenas: After the Board notifies the parties that an evidentiary hearing has been scheduled, and before the hearing is complete, any party may obtain signed testimonial and records subpoenas from the assigned Board agent (typically an Administrative Law Judge or hearing officer) or designee by using the following procedures:
(1) Blank subpoena forms may be obtained at each of the Board's offices as well as on the Board's website. A party or party representative shall fill out the blank form and provide it to the Board agent for review and signature.
(2) When filling out a blank records subpoena, a requesting party shall specify the records requested, and shall specify a production date that complies with subsection (f) below.
(3) When submitting a records subpoena to a Board agent for signature, a party or party representative must include a declaration of materiality.
(4) The Board agent has discretion to require a requesting party to serve a consumer or employee notice if a records subpoena seeks confidential personal records of a natural person who is not a party, an agent of a party, or an employee exclusively represented by a party.
(e) Procedures for Serving Subpoenas: After obtaining a signed subpoena from a Board agent or designee, a party or party representative shall serve the subpoena by using the following procedures.
(1) Method of service: For a subpoena to be effective, it must be (a) personally served on the witness; or (b) if a subpoena is being served on a party or an agent of a party, it is permissible to serve a representative who is designated in a notice of appearance or who has signed a filing in the matter on behalf of the party, unless that representative no longer represents the party.
(2) Time of service: If a testimonial subpoena is served fewer than ten (10) days before the date on which the witness must testify, or if a records subpoena is served fewer than twenty (20) days before the records must be produced, then the person or entity subject to the subpoena may request that the subpoena be revoked or limited for insufficient notice. The Board agent shall have discretion to find that the amount of notice was sufficient under the circumstances and the subpoena is therefore effective, to declare the subpoena ineffective, or to adjust, as may be appropriate under the circumstances, the scope, timing, methods, or other details regarding the testimony or records requested.
(3) Service of the declaration of materiality: The declaration of materiality must be served together with the corresponding records subpoena.
(4) Witness fee and mileage reimbursement: A witness who is neither a party nor an agent of a party may demand, at the time of service, a witness fee of $35.00 and a mileage reimbursement of $0.20 per mile, round-trip, for travel required to testify. If such a demand is made, the requesting party must provide the requested fee and reimbursement at the time of service.
(5) Service of the consumer or employee notice: If the Board agent has required a consumer or employee notice, such notice must be served, together with a copy of the records subpoena and the declaration of materiality, on the non-party consumer or employee. Such service must be made at least ten (10) days prior to the production date.
(f) Production Schedule for Records Subpoenas
(1) The requesting party shall specify in the records subpoena the date, time, and location for production of requested items. The requested production date may be a hearing date. If the responding witness, entity, or party has at least twenty (20) days to respond following service of the records subpoena, then the requested production date may be a non-hearing date. The requested production date may not be later than the last scheduled day of hearing, unless otherwise ordered by the Board agent.
(2) The responding person or entity shall produce the requested items as specified in the records subpoena unless agreed otherwise or the Board orders otherwise. The responding person or entity need not produce items covered by a motion to revoke or limit a subpoena filed pursuant to subsection (h), pending resolution of the motion.
(3) If a records subpoena specifies a requested production date that is not a hearing date, and requires both records production and witness testimony, then the subpoena shall be deemed to require such testimony at the next scheduled hearing date, unless agreed otherwise or the Board orders otherwise.
(g) Motion to Extend Records Production Date: If a scheduled records production date is prior to the next scheduled hearing date, the responding person or entity with good cause may file a written motion to extend the requested production date by up to an additional ten (10) days or to the date of the scheduled formal hearing, if less than ten (10) days. The motion must be filed and served at least seven (7) days before the scheduled records production date.
(h) Motion to Revoke or Limit a Testimonial Subpoena: A motion to revoke a testimonial subpoena may be filed and served on the requesting party in writing or made orally at the scheduled formal hearing. The Board agent may grant or deny the motion, limit a witness's testimony, or grant a protective order in light of the arguments presented by the parties.
(i) Motion to Revoke or Limit a Records Subpoena: A responding person or entity may file a written motion to revoke or limit a records subpoena pursuant to the following procedures:
(1) The motion must be filed and served no later than twelve (12) days following service of the subpoena. The requesting party must submit any opposition no later than six (6) days after the responding person or entity serves such a motion. There shall be no reply briefs unless the Board agent directs otherwise.
(2) In resolving any dispute regarding a records subpoena, the Board agent may exercise discretion to set prehearing conferences, other formal hearings, or otherwise order other production dates. The Board agent may revoke or limit a records subpoena to the extent items requested to be produced are not relevant to any matter under consideration in the proceeding or are protected by an applicable privilege, or the subpoena is otherwise invalid. When the Board agent resolves such a dispute at a prehearing conference and orders production of certain items covered by the motion, the Board agent shall direct the date, format, and means of producing such items. When the Board agent resolves such a dispute on or after the first day of hearing and orders production of certain items covered by the motion, all such items shall be produced within 24 hours of the Board agent's ruling. The Board agent is also empowered to resolve any objections filed by a consumer or employee resulting from a consumer or employee notice regarding subpoenaed records.
(j) Motion to Enforce Testimonial or Records Subpoena in Superior Court: The Board itself may direct the General Counsel to apply to an appropriate superior court for an order requiring compliance with a subpoena. The following procedures shall apply.
(1) A party may make a request to initiate enforcement proceedings to the Board agent assigned.
(2) At any stage in the proceeding, a Board agent may request, through the General Counsel, that the Board itself authorize the General Counsel to apply for an order of enforcement.
(3) The Board itself shall authorize the General Counsel to seek enforcement on the recommendation of the Board agent or General Counsel, unless, in the judgment of the Board itself, the enforcement of such testimonial or records subpoena would be inconsistent with the law or policies of the applicable Act.
(4) If the Board itself directs the General Counsel to seek enforcement, the evidentiary record will remain open until the Board agent determines that the court order will not be forthcoming or that further delay would frustrate the policies of the applicable Act, or until the responding party produces the testimony or records sought.
(5) At any time, the Board itself may direct the General Counsel to withdraw an enforcement action based upon voluntary compliance or otherwise as the interests of fairness may require.
(k) Inferences and Sanctions for Failure to Comply with Subpoenas: As an alternative to seeking Superior Court enforcement as set forth in subsection (j), the Board agent may draw adverse inferences from a party's failure to comply with a valid subpoena, and may prohibit such a party from presenting evidence or arguments, as the interests of fairness may require. The Board agent may not, however, draw an adverse inference against a party unless that party has been given advance notice and an opportunity to respond regarding such a potential adverse inference.
(l) Board Agent as Witness at a Hearing: The Board itself may order that a subpoenaed Board agent be produced at a formal hearing, only if that Board agent is deemed essential to the resolution of the case and no rational decision can be reached without such agent being produced.
1. Amendment filed 9-20-82; effective upon filing pursuant to Government Code section 11346.2(d) (Register 82, No. 39).
2. Amendment filed 10-10-85; effective thirtieth day thereafter (Register 85, No. 41).
3. Amendment of subsection (b) and NOTE filed 2-27-92; operative 3-30-92 (Register 92, No. 12).
4. Amendment of subsection (c) filed 1-8-99; operative 2-7-99 (Register 99, No. 2).
5. Amendment of NOTE filed 6-11-2001 as an emergency; operative 7-1-2001 (Register 2001, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-29-2001 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 6-11-2001 order transmitted to OAL 10-18-2001 and filed 12-4-2001 (Register 2001, No. 49).
7. Amendment of NOTE filed 2-2-2004 as an emergency; operative 2-2-2004 (Register 2004, No. 6). A Certificate of Compliance must be transmitted to OAL by 6-1-2004 or emergency language will be repealed by operation of law on the following day.
8. Certificate of Compliance as to 2-2-2004 order transmitted to OAL 5-4-2004 and filed 6-8-2004 (Register 2004, No. 24).
9. Amendment of NOTE filed 8-30-2004 as an emergency; operative 8-30-2004 (Register 2004, No. 36). A Certificate of Compliance must be transmitted to OAL by 12-28-2004 or emergency language will be repealed by operation of law on the following day.
10. Amendment of NOTE refiled 12-27-2004 as an emergency; operative 12-29-2004 (Register 2004, No. 53). A Certificate of Compliance must be transmitted to OAL by 4-28-2005 or emergency language will be repealed by operation of law on the following day.
11. Certificate of Compliance as to 12-27-2004 order transmitted to OAL 4-26-2005 and filed 5-31-2005 (Register 2005, No. 22).
12. Amendment of subsection (e) and amendment of NOTE filed 3-18-2013; operative 7-1-2013 (Register 2013, No. 12).
13. Amendment of NOTE filed 12-6-2013 as an emergency; operative 12-6-2013 pursuant to Government Code section 110035.5 (Register 2013, No. 51). This regulatory action is deemed an emergency exempt from OAL review and was filed directly by the agency with the Secretary of State pursuant to Government Code section 110035.5. A Certificate of Compliance must be transmitted to OAL by 6-4-2014 or emergency language will be repealed by operation of law on the following day.
14. Certificate of Compliance as to 12-6-2013 order transmitted to OAL 5-29-2014 and filed 7-10-2014 (Register 2014, No. 28).
15. Change without regulatory effect amending NOTE filed 5-8-2018 pursuant to section 100, title 1, California Code of Regulations (Register 2018, No. 19).
16. Amendment of NOTE filed 12-27-2019; operative 4-1-2020 (Register 2019, No. 52).
17. Repealer and new section filed 10-20-2021; operative 1-1-2022 (Register 2021, No. 43). Filing deadline specified in Government Code section 11349.3(a) extended 60 calendar days pursuant to Executive Order N-40-20.
18. Amendment of NOTE filed 4-18-2023; operative 7-1-2023 (Register 2023, No. 16).
Note: Authority cited: Sections 3509(a), 3513(h), 3524.52(a), 3541.3(g), 3551(a), 3555.5(c), 3563(f), 71639.1(b) and 71825(b), Government Code; and Section 99561(f), Public Utilities Code. Reference: Sections 3509, 3513(h), 3524.52(a), 3541.3(h), 3551(a), 3555.5(c), 3563(g), 3601, 71639.1 and 71825, Government Code; and Section 99561(g), Public Utilities Code.
