Current through Register Vol. 35, No. 24, December 23, 2024
A.
Initiation of compliance order hearing:
(1)
Filing of request: A compliance order hearing shall be initiated by the filing
of a request for compliance order hearing within 30 days after the compliance
order is served. The respondent shall file the original of the request for
compliance order hearing with the commission and serve a copy on the
department.
(2) Request for
compliance order hearing: The request for compliance order hearing shall also
serve as an answer to the compliance order and shall:
(a) clearly and directly admit or deny each
of the factual assertions contained in the compliance order; but where the
respondent has no knowledge of a particular factual assertion and so states,
the assertion may be denied on that basis; any allegation of the compliance
order not specifically denied shall be deemed admitted;
(b) indicate any affirmative defenses upon
which the respondent intends to rely; affirmative defenses not asserted in the
request for compliance order hearing, except a defense asserting lack of
subject matter jurisdiction, shall be deemed waived;
(c) be signed by a person authorized to do
so; and
(d) attach a copy of the
compliance order.
B. Scheduling the hearing:
(1) Hearing date: The hearing shall be
scheduled to begin no later than 90 days after the date a request for
compliance order hearing is received, unless a stipulated or unopposed motion
is filed requesting that the 90 day deadline be waived. The motion must be
filed prior to the expiration of the 90 day deadline.
(2) Scheduling order and public notice: A
scheduling order shall be issued as provided in Subsection B of
20.1.3.17 NMAC, and public notice
shall be given as provided in Subsection C of
20.1.3.17 NMAC.
C. Transcription of hearing: The
respondent shall, at its own expense, have the hearing stenographically
recorded and transcribed by a certified court reporter unless, after a showing
of substantial financial hardship, the hearing officer orders the department to
hire a certified court reporter. The respondent shall, no later than 30 days
prior to the hearing date, file with the hearing clerk a certification that the
respondent has hired a certified court reporter and will deliver 16 copies of
the hearing transcript to the hearing clerk or request that the department hire
a certified court reporter.
D.
General rules regarding discovery:
(1)
Discovery request: Except as otherwise provided by the commission, a party
requesting discovery shall serve the discovery request directly upon the party
from whom discovery is sought and shall file a notice with the hearing clerk,
indicating the date of service of the discovery request, the type of discovery
sought, and the party from whom discovery is sought.
(2) Response to discovery request: A party
responding to a discovery request shall serve the response, including any
objections, upon the party making the discovery request and shall file a notice
with the hearing clerk, indicating the date of service of the response, the
type of discovery request being responded to, and the party upon whom the
response was served.
(3) Continuing
obligation to supplement responses: Any party from whom discovery is sought has
a continuing obligation, subject to any objections interposed and not overruled
by the hearing officer, to supplement responses with relevant information
obtained after serving of the initial response and any previous supplemental
responses. Unless otherwise ordered by the commission or hearing officer,
supplemental responses shall be served as soon as practicable but not later
than five days from when the information became available. If the new
information becomes available less than five days prior to the hearing or
during the hearing, it shall be brought to the attention of the hearing officer
for direction and ruling on the use of the information.
(4) Protective order: The hearing officer
may, upon motion and for good cause shown, issue any order which justice
requires to protect a party or person from annoyance, embarrassment, oppression
or undue burden or expense, including that discovery be limited or that a trade
secret or other confidential information not be disclosed.
(5) Failure to make discovery; sanctions:
Upon motion by a party showing that another party from whom discovery was
requested has failed to respond within the required time, the hearing officer
may order the response and may impose such sanctions as may be appropriate,
including:
(a) refusal to allow the testimony
of a witness not identified as required by Subsection E of
20.1.3.20 NMAC;
(b) denial of admission of a document not
disclosed as required by Subsection F of
20.1.3.20 NMAC;
(c) drawing of adverse inference against the
non-responsive party; and
(d) in an
extreme case, dismissal or default judgment against the non-responding
party.
E.
Identity of witnesses: Except as allowed by the hearing officer, each party
shall, 15 days before the hearing, provide the name and address of each person
expected to be called as a witness and a description of the general subject
matter of the anticipated testimony of each witness, and a list of exhibits, if
any, to be offered into evidence at the hearing.
F. Production of documents:
(1) Definition: As used in this section,
"document" includes writings, drawings, graphs, charts, photographs, videotapes
and other data compilations from which information can be obtained, and if
necessary, translated by a party through detection devices into reasonably
usable form. In addition, each copy of a document that is not identical in all
respects to every other copy shall be considered a separate document.
(2) Request: Any party, upon written request
to another party, is entitled to inspect and make copies of any relevant
documents in the possession or control of the other party. The request shall
specify a reasonable time (not less than 20 days after service of the request),
place and manner of making the inspection and copies. The party responding to
the request shall also provide a list of privileged documents, identified by
title, author and date.
G. Subpoenas: As allowed by the act, the
hearing clerk shall, upon request by any party and without the necessity for
notice to other parties, prepare a subpoena requiring the attendance and
testimony of any witness and the production of any evidence in the possession
or under the control of the witness at the hearing or at a deposition
authorized by the hearing officer under Subsection I of
20.1.3.19 NMAC, and forward the
subpoena to the hearing officer for issuance. A subpoena may be issued with the
name and address of the witness blank, to be completed by the requesting
party.
H. Request for admissions:
Any party may serve upon any other party a written request for the admission of
any statement or opinion of fact or the application of law to fact, including
the genuineness of any document. If the request includes a request for
admission of the genuineness of a document, the document shall be attached to
the request unless it has been otherwise furnished. Each statement shall be
deemed admitted unless, within 20 days after service of the request, or such
other time prescribed by the hearing officer, the party to whom the Request is
directed serves upon the requesting party a sworn written response specifically
denying such matter.
I. Other
discovery:
(1) Additional discovery not
favored: Discovery not specifically provided for under this part, including
interrogatories and depositions, is discouraged. Requests for additional
discovery may be made by motion to the hearing officer setting forth:
(a) the circumstances and necessity
warranting the taking of the discovery;
(b) the nature of the information expected to
be discovered; and
(c) the proposed
time and place where the discovery will be taken.
(2) Findings for additional discovery:
Discovery may be permitted upon determination by the hearing officer that:
(a) such discovery will not unreasonably
delay the proceeding;
(b) the
information to be obtained is not otherwise reasonably obtainable, may be lost,
or may become unavailable because of physical illness or infirmity;
and
(c) there is a substantial
reason to believe that the information sought will be admissible at the hearing
or will be likely to lead to the discovery of admissible evidence.
(3) Order for additional
discovery: Upon determining that a motion for additional discovery should be
granted, the hearing officer shall issue an order for the taking of such
discovery together with any conditions and terms of the additional
discovery.
J. Hearing
burden of persuasion: At compliance order hearing, the department has the
burden of going forward with the evidence and of proving by a preponderance of
the evidence that the violation occurred, and that the proposed civil penalty,
revocation, or suspension, as the case may be, is appropriate. Following the
establishment of a prima facie case, the respondent shall have the burden of
going forward with any adverse evidence or defense to the
allegations.
