Cal. Code Regs. Tit. 8, § 20250 - Issuance of Subpoenas and Notices to Appear or Produce; Petitions to Revoke; Right to Inspect or Copy Data

(a) Any member of the Board, or the executive secretary, regional director, or any person authorized by the Board, executive secretary or regional director shall upon the ex parte request of any party, prior to hearing, issue subpoenas as provided for in this section requiring the attendance and testimony of witnesses and/or the production of any materials including, but not limited to, books, records, correspondence or documents in their possession or under their control. Requests for subpoenas during the hearing shall be made to the administrative law judge.

(b) The subpoena shall show on its face the name, address, and telephone number of the party at whose request the subpoena was issued. A copy of a declaration under penalty of perjury shall be served with a subpoena duces tecum issued before hearing, showing good cause for the production of the matters and things described in such subpoena, specifying the exact matters or things desired to be produced, setting forth in full detail the materiality thereof to the issues involved in the case, and stating that the desired matters or things are in the possession or under the control of the witness or party.

(c) Service of subpoenas shall be made pursuant to sections 20164, 20166, and 20169. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance.

(d) In order to obtain the attendance of a party to the matter, or of anyone who is an officer, director, supervisor, or managing agent of any such party, the service of a subpoena upon any such witness is not required following issuance of a complaint if written notice requesting such witness to attend the hearing of the matter, with the time and place thereof, is served upon the attorney for such party. Such notice shall be served at least 10 days before the time required for attendance unless the Board prescribes a shorter time. The giving of such notice shall have the same effect as service of a subpoena on the witness, and the parties shall have such rights and the Board may make and seek such orders, including the imposition of sanctions, as in the case of a subpoena for attendance before the Board. The witness shall be entitled to fees in accordance with Labor Code section 1151.4(a).

(e) If the notice specified in subdivision (d) is served at least 10 days before the time required for attendance, or within such shorter time as the Board may order, it may include a request that such party or person bring books, documents or other things. The notice shall be accompanied by a copy of a declaration under penalty of perjury showing good cause for the production of the matters and things described in such notice, specifying the exact matters or things desired to be produced, setting forth in full detail the materiality thereof to the issues involved in the case, and stating that the desired matters or things are in the possession or under the control of the witness or party.

(f) Any person on whom a subpoena or a notice to appear (described in subdivisions (d) and (e)) is served who does not intend to comply shall, within five days after the date of service, petition in writing to revoke the subpoena or notice. Such petition shall explain with particularity the grounds for objecting to each item covered by the petition and shall have attached a copy of the subpoena or notice. If a party objects to a request in a subpoena duces tecum and refuses to produce any material responsive to the request on the basis of a claim of privilege or that the information is protected work product, the petition shall state specifically the privilege asserted and shall include a privilege log providing sufficient information for other parties to evaluate the merits of such claims. The petition to revoke shall be served as provided in sections 20160, 20164, 20166, and 20169 by or on behalf of the person seeking revocation upon the party at whose request the subpoena was issued or who issued the notice. If the petition to revoke is filed after the issuance of a complaint but prior to the prehearing conference, the petition shall be filed with the executive secretary. A copy shall be served on the party issuing the subpoena or notice in compliance with sections 20160, 20164, 20166, and 20169. A petition to revoke filed at or after the prehearing conference or during the hearing shall be filed with the administrative law judge who may rule on the matter. If the subpoena has been served less than five days before the hearing, the petition to revoke is due on the first day of the hearing except that the administrative law judge, upon a showing of good cause, may grant up to five days for filing a petition to revoke. For a subpoena issued during the hearing, any petition to revoke shall be due at the time specified in the subpoena for compliance unless further time, up to five days, is granted by the administrative law judge. Responses to petitions to revoke shall be allowed only upon leave of the executive secretary or assigned administrative law judge, and on such terms as he or she deems appropriate.

(g) When a party serves a subpoena for the production of records of the Board or for the testimony of a Board agent, the general counsel may represent the Board or the Board agent and may, if appropriate, move to revoke the subpoena on the grounds stated in subdivision (h).

(h) The Board or administrative law judge, as the case may be, shall revoke the subpoena or notice in whole or in part if the evidence required to be produced does not relate to any matter in question in the proceedings, or the subpoena or notice does not describe with sufficient particularity the evidence whose production is required, or the testimony or records sought are privileged or otherwise protected or deal with a matter not subject to review, or the subpoena is otherwise invalid. The scope of a subpoena or notice may be limited if the Board or administrative law judge determines that the material sought is:

(i) unreasonably cumulative or duplicative, or

(ii) obtainable from some other source that is more convenient, less burdensome, or less expensive; or

(iii) unduly burdensome or expensive to provide, taking into account the needs of the case, the limitation of the resources of the parties, and the importance of the issues upon which it bears. A simple statement of the grounds for the ruling on the petition shall accompany the ruling. The petition to revoke, any answer filed thereto, and any ruling thereon shall become part of the official record upon the request of the party aggrieved by the ruling.

(i) Subpoenas duces tecum (as described in subdivisions (a) and (b)) and notices to produce (as described in subdivision (d)) may be served by all parties with return dates for prehearing conferences. Witnesses may be examined orally under oath at such prehearing conferences, subject to the discretion of the administrative law judge, for the limited purpose of identifying and/or authenticating the matters and things produced pursuant to the subpoenas or notices. Such oral examination shall not be for the purpose of generally deposing the witnesses unless the same has previously been ordered by the executive secretary pursuant to the procedures in section 20246.

(j) Nothing in section 20250 shall compel the disclosure of information which identifies a potential witness whose primary source of income is non-supervisory employment in agriculture unless that individual is a charging party; provided, however, that when a dispute arises concerning the propriety of turning over a writing which would make such identification likely, the privilege created by Evidence Code section 1040(b)(2) is waived to the extent of allowing the administrative law judge to examine the entire document in camera to determine which, if any, portions should be disclosed and which portions should be excised before being turned over; provided further, that this subdivision shall not apply to otherwise unprotected or unprivileged business records.

(k) Upon any other failure of any person to comply with a subpoena or notice, the Board may apply to an appropriate superior court for an order requiring such person to appear and produce evidence and give testimony regarding the matter under investigation or in question. A request that the Board apply for an order may be made by the general counsel during investigatory stages of the proceedings or by any party following issuance of a complaint. The administrative law judge will review any requests made in the course of a hearing, and, if the administrative law judge deems the request appropriate, the administrative law judge shall promptly recommend that the Board seek enforcement of the subpoena or notice. The subpoenaed party shall have five days after an application pursuant to this subdivision is filed with the Board to file a response to the application. The Board shall seek enforcement on relation of the general counsel, or may delegate authority to the general counsel to seek enforcement on behalf of the Board, or a party unless in the judgment of the Board the enforcement of such subpoena or notice would be inconsistent with law or the policies of the Act. If the request is granted, the record will remain open in the matter until the Board determines that the court order will not be forthcoming, or that further delay would frustrate the policies of the Act, or until the testimony sought is included in the record.

(l) In addition to, or in lieu of, superior court enforcement proceedings as provided in subdivision (k), a party may apply to the chief administrative law judge or the assigned administrative law judge, if the matter has been assigned for hearing, for appropriate sanctions as provided for in section 20238(b), based on a person's failure to comply with a subpoena or notice.

(m) By causing the issuance of a subpoena or a notice, the attorney or representative or the party, if not represented, certifies that to their knowledge, information and belief, and after reasonable inquiry:

(i) the testimony or material sought is relevant and material to the issues in the proceeding;

(ii) the subpoena or notice is not interposed for any improper purpose, such as to harass or to cause unnecessary delay, or to needlessly increase the cost of litigation; and

(iii) the subpoena or notice is not unreasonably or unduly burdensome or expensive, given the needs of the case, given the materials already in the hands of the party seeking the testimony or material, and given the importance of the issues upon which it bears.

Notes

Cal. Code Regs. Tit. 8, § 20250

1. Amendment of subsections (a) and (b) filed 3-14-78; effective thirtieth day thereafter (Register 78, No. 11).
2. Repealer of subsection (e) and renumbering of subsection (f) to (e) filed 8-28-81; effective thirtieth day thereafter (Register 81, No. 35).
3. Amendment filed 12-31-82; effective thirtieth day thereafter (Register 83, No. 1).
4. Amendment of subsections (f), (h) and (j) and new subsection (l) filed 9-20-91; operative 10-21-91 (Register 92, No. 4).
5. Amendment of subsections (c)-(f) filed 7-8-99; operative 8-7-99 (Register 99, No. 28).
6. Amendment filed 8-29-2023; operative 10/1/2023 (Register 2023, No. 35).

Note: Authority cited: Section 1144, Labor Code. Reference: Sections 1151, 1160.2 and 1160.3, Labor Code.

1. Amendment of subsections (a) and (b) filed 3-14-78; effective thirtieth day thereafter (Register 78, No. 11).
2. Repealer of subsection (e) and renumbering of subsection (f) to (e) filed 8-28-81; effective thirtieth day thereafter (Register 81, No. 35).
3. Amendment filed 12-31-82; effective thirtieth day thereafter (Register 83, No. 1).
4. Amendment of subsections (f), (h) and (j) and new subsection (l) filed 9-20-91; operative 10-21-91 (Register 92, No. 4).
5. Amendment of subsections (c)-(f) filed 7-8-99; operative 8-7-99 (Register 99, No. 28).
6. Amendment filed 8-29-2023; operative 10/1/2023 (Register 2023, No. 35).