Current through Register Vol. 51, No. 6, March 22, 2024
A. General.
(1) Upon written request of a participant in
a proceeding before the Appeals Board, the Appeals Board shall issue a subpoena
requiring:
(a) Testimony at a
deposition;
(b) Testimony at a
hearing;
(c) Production of books,
papers, documents, or tangible things designated in the subpoena.
(2) In filing a written request
for subpoena, a participant in a proceeding shall certify that an effort has
been made to comply with §B.
B. Voluntary Cooperation. Each participant is
expected to:
(1) Cooperate and make available
witnesses and books, papers, documents, or tangible things under its control as
requested by another participant without issuance of a subpoena;
(2) Secure voluntary attendance of desired
third-party witnesses and production of desired third-party books, papers,
documents, or tangible things.
C. Requests for Subpoenas.
(1) A request for a subpoena shall normally
be filed at least:
(a) 15 days before a
scheduled deposition when the attendance of a witness at a deposition is
sought;
(b) 30 days before a
scheduled hearing when the attendance of a witness at the hearing is
sought.
(2) In its
discretion, the Appeals Board may honor requests for subpoenas not made within
the time limitations in §C(1)(a) and (b), above.
(3) A request for a subpoena shall state the
reasonable scope and general relevance of the testimony, and of any books,
papers, documents, or tangible things sought to the appeal.
D. Request To Quash or Modify.
(1) Upon written request by the person
subpoenaed or by a participant in the proceeding, made within 10 days after
service, the Appeals Board may:
(a) Quash or
modify the subpoena if it is unreasonable and oppressive or for other good
cause shown; or
(b) Require the
person in whose behalf the subpoena was issued to advance reasonable itinerant
costs and/or reasonable cost of producing subpoenaed books, papers, documents,
or tangible things.
(2)
When circumstances require, however, the Appeals Board may act upon a request
at any time after a copy of the subpoena has been served upon the other
participants in the proceeding.
E. Form; Issuance. Each subpoena shall state
the name of the Appeals Board and the title of the appeal, and shall command
each person to whom it is directed to attend and give testimony, and if
appropriate, to produce specified books, papers, documents, or tangible things,
at a time and place therein specified. In issuing a subpoena to a requesting
participant, the Appeals Board member assigned to the appeal involved, or
another Appeals Board member as assigned by the Chairman, shall sign the
subpoena. Blank subpoena forms may not be signed by an Appeals Board
member.
F. Service.
(1) The Appeals Board will release subpoenas
to the requesting participant for service.
(2) A subpoena may be served as follows:
(a) Personal Delivery. A subpoena may be
served at any place by any person who is not a participant in the proceeding
and is not younger than 18 years old. A subpoena shall be served by personally
delivering a copy to the person named in it. Service of a subpoena upon a party
represented by an attorney may be made by sending the subpoena to the
attorney.
G.
Return on Service
(1) Personal Service. The
person serving the subpoena shall file proof of service by affidavit, and the
affidavit shall be filed promptly with the Appeals Board and before the time
designated for compliance with the subpoena. The affidavit shall set out the
name of the person served, the date, and the particular place and manner of
service, and shall state whether the person making service is 18 years old or
older. Proof of service also may be made by completing and executing the
applicable "Return on Service" portion of a duplicate copy of the
subpoena.
(2) Certified Mail. Upon
return through the post office of the return receipt, an affidavit shall be
filed with the Appeals Board showing that the subpoena was:
(a) Mailed to the person named; and
(b) In fact received by the person as
evidenced by his signature on the original return receipt which shall be
attached to the affidavit. The affidavit shall be prima facie evidence of
service.
(3) Proof of
service also may be made by completing and executing the applicable "Return on
Service" portion of a duplicate copy of the subpoena.
H. Refusal to Obey a Subpoena. In the case of
a refusal to obey a subpoena, the Appeals Board may invoke the aid of a court
of competent jurisdiction, and the court may order that person to obey the
subpoena or order. The party seeking enforcement shall prepare and submit to
the Appeals Board a proposed petition for consideration. The party seeking
enforcement shall be responsible for filing the Petition with the court once it
has been approved and signed by the Appeals Board and shall pay any applicable
court costs.
