Iowa Administrative Code
Agency 481 - INSPECTIONS AND APPEALS
Chapter 10 - RULES OF PROCEDURE AND PRACTICE BEFORE THE ADMINISTRATIVE HEARINGS DIVISION
Rule 481-10.14 - Subpoenas
Universal Citation: IA Admin Code 481-10.14
Current through Register Vol. 46, No. 19, March 20, 2024
(1) Issuance.
a. Pursuant to
Iowa Code subsection
17A.13(1),
the division shall issue an agency subpoena to a party on request unless
otherwise excluded pursuant to this rule. A request for a subpoena shall be in
writing. The request may be made in person or by mail, facsimile (fax),
electronic mail (e-mail), or other electronic means approved by the division.
The request shall include the names of the parties, the case number, the name
and address of the requested witness, and a description or list of any
documents or other items requested. The request shall also note the nature of
the proceeding at which the witness is requested to testify (e.g., deposition,
telephone hearing, or in-person hearing), the date and time of the proceeding,
whether the witness is requested to appear in person or by telephone, the
location of the proceeding if it is being conducted in a location other than
the Wallace State Office Building, and the method of recording any deposition.
A request for a subpoena shall be received by the division at least seven
calendar days before the scheduled hearing. The request shall include the name,
address, e-mail address, and telephone number of the requesting
party.
b. The division shall
provide the subpoena to the requesting party by regular mail, fax, e-mail, or
other electronic means or allow for pickup during the department's regular
business hours.
c. When authorized
by law, an administrative law judge (ALJ) may issue a subpoena on the ALJ's own
motion.
d. When there is reasonable
ground to believe a subpoena is requested for the purpose of harassment, or
that the subpoena requests irrelevant evidence or is untimely, the division may
refuse to issue the subpoena. If the division refuses to issue a subpoena, the
division shall provide a written statement of the ground for refusal. A party
to whom a refusal is issued may obtain a prompt hearing before an ALJ regarding
the refusal by filing with the division and serving on all parties a written
request for a hearing, including a statement of testimony, documents, or other
items expected to be elicited from the subpoenaed witness and a showing of
relevancy to the proceeding.
e. The
issuance of a subpoena by the division does not constitute a ruling by the ALJ
that the subpoenaed witness may testify at the hearing or that a subpoenaed
document may be admitted into evidence. A party seeking to call a subpoenaed
witness to testify or seeking to introduce a subpoenaed document at a hearing
must comply with any applicable requirement in statute, administrative rule, or
ALJ order regarding the submission of witness or exhibit lists and the
disclosure of proposed exhibits to opposing parties.
(2) Form and contents.
a.
Requirements. Any
subpoena issued after the commencement of a contested case or other proceeding
conducted by the division shall be issued on a form approved by the division
and must:
(1) State that the subpoena is
issued by the administrative hearings division of the department of inspections
and appeals;
(2) State the title of
the proceeding and its case number;
(3) Command each person to whom it is
directed to do the following at a specified time and place: attend and testify;
produce designated documents, electronically stored information, or tangible
things in that person's possession, custody or control; or permit the
inspection of premises; and
(4)
Include a guidance document for subpoenaed persons that has been approved by
the division and that shall include the text of subrules 10.14(4) and
10.14(5).
b.
Command to attend a deposition; notice of the recording
method. A subpoena commanding attendance at a deposition must state
the method for recording the testimony.
c.
Combining or separating a command
to produce or to permit inspection; specifying the form for electronically
stored information. A command to produce documents, electronically
stored information, or tangible things or to permit the inspection of premises
may be included in a subpoena commanding attendance at a deposition, hearing,
or trial or may be set out in a separate subpoena. A subpoena may specify the
form or forms in which electronically stored information is to be
produced.
d.
Command to
produce; included obligations. A command in a subpoena to produce
documents, electronically stored information, or tangible things requires the
responding party to permit inspection, copying, testing, or sampling of the
materials.
(3) Service of subpoenas.
a. The
requesting party is responsible for arranging service of a subpoena prior to
the hearing or deposition at which the testimony is commanded or the time at
which the requested documents must be produced. The party is responsible for
any cost associated with serving a subpoena and for the payment of witness fees
and mileage expenses. If requested, pursuant to Iowa Code section
622.69, the witness
fee is $10 for a full day's attendance and is $5 for attendance less than a
full day, and mileage shall be paid for each mile actually traveled to
participate in an in-person hearing or deposition at the rate established by
the supreme court for witnesses in court proceedings, except that:
(1) No peace officer who receives a regular
salary, or any other public official shall in any case receive fees as a
witness for testifying in regard to any matter coming to the officer's or
official's knowledge in the discharge of the officer's or official's official
duties in a telephone hearing or an in-person hearing held in the county of the
officer's or official's residence, except police officers who are called as
witnesses when not on duty. An officer is on duty when paid by the officer's
employing agency regardless whether the officer would regularly be on duty at
the time of the hearing.
(2) A
volunteer fire fighter, as defined in Iowa Code section
85.61, who is
subpoenaed to appear as a witness in connection with a matter regarding an
event or transaction which the fire fighter perceived or investigated in the
course of duty as a volunteer fire fighter shall receive a fee only as provided
for under Iowa Code section
622.71 A.
b. Any person who is at least 18
years old and not a party may serve a subpoena. Serving a subpoena requires
delivering a copy to the named person and, if the subpoena requires that
person's attendance and, if demanded, tendering the fees for one day's
attendance and traveling fees to and from the proceeding. If the subpoena
commands the production of documents, electronically stored information, or
tangible things, then before it is served, a notice must be served on each
party. For purposes of this rule, an employee of a state or local governmental
agency is not a party merely because the agency is a party and may serve a
subpoena unless the employee is also a named party in the proceeding or
otherwise ineligible to serve a subpoena.
c. Permissible place of service. A subpoena
may be served any place within the state of Iowa.
d. Proof of service. Proving service, when
necessary, requires filing with the division a statement showing the date and
manner of service and the names of persons served. The server must certify the
statement in accordance with Iowa Code section
622.1.
(4) Protecting a person subject to a subpoena.
a.
Avoiding undue burden or expense; sanctions. A party or
attorney responsible for serving a subpoena must take reasonable steps to avoid
imposing undue burden or expense on a person subject to the subpoena. The
administrative law judge must enforce this duty and impose an appropriate
sanction, which may include lost earnings and reasonable attorney's fees, on a
party or attorney who fails to comply.
b.
Command to produce materials or
permit inspection.
(1) Appearance
not required. A person commanded to produce documents, electronically stored
information, or tangible things, or to permit the inspection of premises, need
not appear in person at the place of production or inspection unless also
commanded to appear for a deposition or hearing.
(2) Objections. A person commanded to produce
documents or tangible things or to permit inspection may serve on the party or
attorney designated in the subpoena a written objection to inspecting, copying,
testing or sampling any or all of the materials or to inspecting the premises,
or to producing electronically stored information in the form or forms
requested. The objection must be served before the earlier of the time
specified for compliance or 14 days after the subpoena is served. If an
objection is made, the following rules apply:
1. At any time, on notice to the commanded
person, the serving party may move for an order compelling production or
inspection.
2. These acts may be
required only as directed in the order, and the order must protect a person who
is neither a party nor a party's officer from significant expense resulting
from compliance.
c.
Attendance. Any party
shall be permitted to attend at the same time and place and for the same
purposes specified in the subpoena. No prior notice of intent to attend is
required.
d.
Quashing or
modifying a subpoena.
(1) When
required. On timely motion, the administrative law judge must quash or modify a
subpoena that:
1. Fails to allow a reasonable
time to comply;
2. Requires a
person who is neither a party nor a party's officer to travel more than 50
miles from where that person resides, is employed, or regularly transacts
business in person, except that a person may be ordered to attend a hearing
anywhere within the state in which the person is served with a
subpoena;
3. Requires disclosure of
privileged or other protected matter, if no exception or waiver applies;
or
4. Subjects a person to undue
burden.
(2) When
permitted. To protect a person subject to or affected by a subpoena, the
administrative law judge may, on motion, quash or modify the subpoena if it
requires:
1. Disclosing a trade secret or
other confidential research, development, or commercial information;
2. Disclosing an unretained expert's opinion
or information that does not describe specific occurrences in dispute and
results from the expert's study that was not requested by a party; or
3. A person who is neither a party nor a
party's officer to incur substantial expense to travel more than 50 miles to
attend a hearing.
(3)
Specifying conditions as an alternative. In the circumstances described in
subparagraph 10.14(4) "d"(2), the administrative law judge,
instead of quashing or modifying a subpoena, may order appearance or production
under specified conditions if the serving party:
1. Shows a substantial need for the testimony
or material that cannot be otherwise met without undue hardship; and
2. Ensures that the subpoenaed person will be
reasonably compensated.
(4) A motion to quash or modify a subpoena
shall be filed with the division and served on all parties of record pursuant
to rule
481-10.12
(17A), except that a motion filed by or on behalf of a person who is neither a
party nor a party's officer may be filed with the division and served only on
the agency with a request for the division to provide a copy of the motion to
all non-agency parties. The division may require a person requesting the
division to provide the motion to a non-agency party to provide an additional
paper copy of the motion and any attached exhibits for the division to provide
to the non-agency party.
(5) The
motion may be set for argument at the discretion of the administrative law
judge. The administrative law judge may limit the participation of a person who
is not a party, or the representative of such a person, to the extent necessary
to protect any confidential information related to the proceeding.
(5) Duties in responding to a subpoena,
a.
Producing documents or electronically stored information. These procedures
apply to producing documents or electronically stored information:
(1) Documents. A person responding to a
subpoena to produce documents must produce them as they are kept in the
ordinary course of business or must organize and label them to correspond to
the categories in the demand.
(2)
Form for producing electronically stored information not specified. If a
subpoena does not specify a form for producing electronically stored
information, the person responding must produce it in a form or forms in which
it is ordinarily maintained or in a reasonably usable form or forms.
(3) Electronically stored information
produced in only one form. The person responding need not produce the same
electronically stored information in more than one form.
(4) Inaccessible electronically stored
information. The person responding need not provide discovery of electronically
stored information from sources that the person identifies as not reasonably
accessible because of undue burden or cost. On motion to compel discovery or
for a protective order, the person responding must show that the information is
not reasonably accessible because of undue burden or cost. If that showing is
made, the administrative law judge may nonetheless order discovery from such
sources if the requesting party shows good cause, considering the limitations
of Iowa Rule of Civil Procedure 1.504(1)(b). The administrative law judge may
specify conditions for the discovery.
b.
Claiming privilege or
protection.
(1) Information
withheld. A person withholding subpoenaed information under a claim that it is
privileged or subject to protection as trial-preparation material must:
1. Expressly make the claim; and
2. Describe the nature of the withheld
documents, communications, or tangible things in a manner that, without
revealing information itself privileged or protected, will enable the parties
to assess the claim.
(2)
Information produced. If information produced in response to a subpoena is
subject to a claim of privilege or of protection as trial-preparation material,
the person making the claim may notify any party that received the information
of the claim and the basis for it. After being notified, a party must promptly
return, sequester, or destroy the specified information and any copies it has;
must not use or disclose the information until the claim is resolved; must take
reasonable steps to retrieve the information if the party disclosed it before
being notified; and may promptly present the information to the court under
seal for a determination of the claim. The person who produced the information
must preserve the information until the claim is resolved.
This rule is intended to implement Iowa Code sections 10A. 104(6) and 17A.13.
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