West Virginia Code of State Rules › Agency 105 - Administrative Hearings, Office of › Title 105 - LEGISLATIVE RULE OFFICE OF ADMINISTRATIVE HEARINGS › Series 105-01 - Appeal Procedures › Section 105-1-11 - Subpoenas and Discovery

Current through Register Vol. XLI, No. 28, July 12, 2024
11.1. If a party intends
												to present testimony from any person, it is the responsibility of that party to obtain
												the presence of the person at the hearing. This responsibility will be considered
												fulfilled by a party if the person whose testimony is desired has been subpoenaed by the
												party who desires his or her presence.
11.2.
												The OAH may issue subpoenas commanding the appearance of witnesses and subpoenas duces
												tecum commanding the production of documents, items or other things pursuant to W. Va.
												Code §
									17C-5A-2(c).
11.3. The OAH will
												issue subpoenas, including subpoenas duces tecum, at the request of a party or the
												party's legal representative. All requests by parties for subpoenas and subpoenas duces
												tecum shall be in writing and shall contain a statement acknowledging that the requesting
												party agrees to pay any necessary fees, including fees for the attendance and travel of a
												witness. The party requesting the subpoena shall be responsible for service of the
												subpoena on the appropriate individual. Subpoenas duces tecum shall be returnable on the
												date of the next scheduled hearing unless otherwise specified in the subpoena.
11.4. Every subpoena or subpoena duces tecum shall be
												served at least five (5) days before the return date thereof, either by personal service
												made by a person over eighteen years of age or by registered or certified mail, return
												receipt requested, and received by the party responsible for serving such subpoena. A
												return acknowledgment signed by the person to whom the subpoena or subpoena duces tecum
												is directed, or in the case of a law enforcement officer, the officer's designee as
												designated by the law enforcement agency with which the officer is employed, shall be
												required to prove service by registered or certified mail. Instead of personal service or
												service through mail, the respondent may serve subpoenas and subpoenas duces tecum to law
												enforcement officers through electronic mail to the department of the officer's employer.
												Proof of service by electronic mail may be made by evidence of a "read
												receipt".
11.5. No continuance shall be
												granted on the basis that a subpoenaed witness has failed to appear absent a showing of
												proof of service of the applicable subpoena.
11.6. Upon a second consecutive failure of a person
												under subpoena to appear when the first nonappearance did not result from a personal
												emergency, the hearing may be conducted and completed without the testimony of the person
												at the discretion of the hearing examiner - unless the parties otherwise agree or the
												party proponent of such witness petitioned for enforcement of the second consecutive
												subpoena in circuit court. In the event the subpoenaed witness fails to appear in spite
												of the party proponent having petitioned for enforcement of the subpoena, the matter may
												be continued unless the opposing party shows he or she will be substantially prejudiced
												by allowing another continuance in the matter. "Substantial prejudice" as used herein
												means prejudice that may not be significantly mitigated, which virtually affects a
												party's right to due process of law and which, by its existence, will likely affect the
												outcome of the proceeding.
11.7. Any person
												who serves a subpoena or subpoena duces tecum is entitled to the same fee as sheriffs who
												serve witness subpoenas for the circuit courts of this state. Fees for the attendance and
												travel of witnesses, except for law-enforcement officers, shall be the same as for
												witnesses before the circuit courts of this state. All fees related to a subpoena or
												subpoena duces tecum issued at the instance of an interested party shall be paid by the
												party who asks that such subpoena or subpoena duces tecum be issued.
11.8. Investigating officers shall be compensated for
												the time expended in their travel and appearance before the OAH by the law-enforcement
												agency by which they are employed at their regular rate if they are scheduled to be on
												duty during said time or at their regular overtime rate if they are scheduled to be off
												duty during said time. A law enforcement officer is not entitled to a fee for serving a
												subpoena or subpoena duces tecum.
11.9. If a
												person does not obey the subpoena or subpoena duces tecum, the party who caused the
												service of such subpoena may petition the circuit court wherein the action lies for
												enforcement of such subpoena.
11.10. The
												disclosure and exchange of information between the parties is encouraged; however, there
												shall be no formal discovery in appeals before the OAH except as noted in this
												rule.