Nebraska Administrative Code
Topic - ATHLETIC COMMISSION
Title 38
Chapter 7 - PRACTICE AND PROCEDURE
Section 38-7-001.05 - PREHEARING PROCEDURES

Universal Citation: 38 NE Admin Rules and Regs ch 7 ยง 001-05

Current through March 20, 2024

001.05(A) PREHEARING CONFERENCES AND ORDERS. A hearing officer designated to conduct a hearing may determine, subject to the Commission's rules and regulations, whether a prehearing conference will be conducted. If a prehearing conference is not held, a hearing officer for the hearing may issue a prehearing order, based on the pleadings, to regulate the conduct of the proceedings.

001.05(A)(i) If a prehearing conference is conducted:
001.05(A)(i)(1) The hearing officer must promptly notify the Commission of the determination that a prehearing conference will be conducted. The Commissioner may assign another hearing officer for the prehearing conference; and

001.05(A)(i)(2) The hearing officer for the prehearing conference will set the time and place of the conference and give reasonable written notice to all parties and to all persons who have filed written petitions to intervene in the matter. The Commission must give notice to other persons entitled to notice.

001.05(A)(i)(3) The notice referred to in subsection 001.05(A)(i)(2) must include the following:
001.05(A)(i)(3)(a) The names and mailing addresses of all parties and other persons to whom notice is being given by the hearing officer;

001.05(A)(i)(3)(b) The name, official title, mailing address, and telephone number of any counsel or employee who has been designated to appear for the Commission;

001.05(A)(i)(3)(c) The official file or other reference number, the name of the proceeding, and a general description of the subject matter;

001.05(A)(i)(3)(d) A statement of the time, place, and nature of the prehearing conference;

001.05(A)(i)(3)(e) A statement of the legal authority and jurisdiction under which the prehearing conference and the hearing are to be held;

001.05(A)(i)(3)(f) The name, official title, mailing address, and telephone number of the hearing officer for the prehearing conference;

001.05(A)(i)(3)(g) A statement that a party who fails to attend or participate in a prehearing conference, hearing, or other stage of a contested case or who fails to make a good faith effort to comply with a prehearing order may be held in default under the Administrative Procedure Act; and

001.05(A)(i)(3)(h) Any other matters that the hearing officer considers desirable to expedite the proceedings.

001.05(A)(ii) The hearing officer may conduct a prehearing conference, as may be appropriate, to deal with such matter as exploration of settlement possibilities, preparation of stipulations, clarification of issues, rulings on identity and limitation of the number of witnesses, objections to proffers of evidence, determination of the extent to which direct evidence, rebuttal evidence, or cross-examination will be presented in written form, and the extent to which telephone, television, or other electronic means will be used as a substitute for proceedings in person, order of presentation of evidence and cross-examination, rulings regarding issuance of subpoenas, discovery orders, and protective orders, and such other matters as will promote the orderly and prompt conduct of the hearing. The hearing officer shall issue a prehearing order incorporating the matters determined at the prehearing conference.

001.05(A)(iii) The hearing officer may conduct all or part of the prehearing conference by telephone, television, or other electronic means if each participant in the conference has an opportunity to participate in, to hear, and, if technically feasible, to see the entire proceeding while it is taking place.

001.05(B) DISCOVERY IN CONTESTED CASES.

001.05(B)(i) The hearing officer, at the request of any party or upon the hearing officer's own motion, may issue subpoenas, discovery orders, and protective orders in accordance with the rules of civil procedure except as may otherwise be prescribed by law. Subpoenas and orders issued under this subsection may be enforced by the district court.

001.05(B)(ii) Any prehearing motion to compel discovery, motion to quash, motion for protective order, or other discovery-related motion must:
001.05(B)(ii)(1) Quote the interrogatory, request, question, or subpoena at issue, or be accompanied by a copy of the interrogatory, request, subpoena, or excerpt of a deposition;

001.05(B)(ii)(2) State the reasons supporting the motion;

001.05(B)(ii)(3) Be accompanied by a statement setting forth the steps or efforts made by the moving party or his or her counsel to resolve by agreement the issues raised and that agreement has not been achieved; and

001.05(B)(ii)(4) Be filed with the Commission. The moving party must serve copies of all such motions to all parties to the contested case.

001.05(B)(iii) Other than is provided in subsection 001.05(B)(ii)(4) above, discovery materials need not be filed with the Commission.

001.05(C)CONTINUANCES . The hearing officer may, in his or her discretion, grant extensions of time or continuances of hearings upon the hearing officer's own motion or at the timely request of any party for good cause shown. A party must file a written motion for continuance which states in detail the reasons why a continuance is necessary and serve a copy of the motion on all other parties.

001.05(C)(i) Good cause for an extension of time or continuance may include, but is not limited to, the following:
001.05(C)(i)(1) Illness of the party, legal counsel, or witness;

001.05(C)(i)(2) A change in legal representation; or

001.05(C)(i)(3) Settlement negotiations are underway.

001.05(D) AMENDMENTS.

001.05(D)(i) A petition may be amended at any time before an answer is filed or is due if notice is given to the respondent or his or her attorney. In all other cases, a petitioner must request permission to amend from the hearing officer.

001.05(D)(ii) A hearing officer may also allow, in his or her discretion, the filing of supplemental pleadings alleging facts material to the case occurring after the original pleadings were filed. A hearing officer may also permit amendment of pleadings where a mistake appears or where amendment does not materially change a claim or defense.

001.05(E) INFORMAL DISPOSITION. Unless otherwise precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default.

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