21.10.05.05

.05 Subpoenas.

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 to the case of the testimony and of any books, papers, documents, or tangible things sought.

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 not less than 18 years old. Service of a subpoena upon a person named in it shall be made by personally delivering a copy to him.

(b) Certified Mail. A subpoena may be served by certified mail, endorsed "Restricted Delivery—Return Receipt Requested".

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, 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. Contumacy or Refusal to Obey a Subpoena. In the case of contumacy or 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.