Current through Register Vol. 35, No. 18, September 24, 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.
