06-096 C.M.R. ch. 534, § 13 - Subpoena

Any party may request the issuance of a subpoena in the name of the Department to require the attendance and testimony of witnesses and the production of any evidence relating to any issue of fact in the adjudicatory proceeding. Prior to requesting a subpoena, the party must exhaust all other reasonable means of procuring attendance of the witness or the information sought such as asking for voluntary attendance or submission of the information. Requests for subpoenas must be directed to the Presiding Officer for determination and action.

A. For documents. The Department may issue subpoenas pursuant to 38 M.R.S. §345-A(4) to compel the production of books, records and other data relevant to the matters in issue at a hearing. If any person served with a subpoena demonstrates to the satisfaction of the Department that the production of the information would, if made public, divulge methods or processes which are entitled to protection as trade secrets, or if the information is otherwise protected by law, the information will be disclosed only at a non-public portion of the hearing and will be confidential and not available for public inspection.

B. For attendance of witnesses. The Department may issue a subpoena compelling the attendance of a witness to provide testimony relevant to the matters in issue at a hearing if it first obtains the approval of the Attorney General or of any deputy attorney general pursuant to 5 M.R.S. §9060.

C. Department Staff, outside agency review staff, and Department hired consultants. Department staff, outside agency review staff, and Department hired consultants who assist the Presiding Officer or Commissioner are not subject to subpoena.

D. Public records. Prior to requesting a subpoena for public records, the party must exhaust all other means of procuring the documents, including making a request for copies of public records pursuant to 1 M.R.S. § 400-414 (the Freedom of Access Act).

E. Form. Subpoenas will be in the form used by the courts of the State. Every subpoena will bear the name of the Department, the name of the issuing officer, and the name and address of the party at whose request it was issued. Each subpoena will command the person to whom it is directed to attend and give testimony or produce specified documents or things at a designated time and place. The subpoena will also advise of the procedure to vacate or modify subpoenas provided herein. Witnesses may only be subpoenaed within Maine's territorial limits and in the same manner as witnesses in civil cases before the courts, unless another territory or manner is provided by law.

F. Service. Service of a subpoena must be arranged by the requesting party and made by delivering a copy of the subpoena to the person named in it. Unless the witness will accept service by other means, a subpoena must be served by a person who is not a party to the proceeding and is not less than eighteen years of age. Fees for attendance and mileage must be served simultaneously with the subpoena and must be the same as those paid witnesses in the Superior Courts of this State and must be paid for by the party requesting the subpoena.

G. Return. The person serving the subpoena must make proof of service by filing the subpoena and affidavit or acknowledgement of service with the Presiding Officer. Failure to make such proof of service does not affect the validity of the subpoena and service.

H. Vacating or modifying subpoena. Any person subpoenaed to produce records or provide testimony may petition the Presiding Officer to vacate or modify a subpoena issued by the Department. The Department will give prompt notice of such a petition to the party who requested issuance of the subpoena and all other parties. The Presiding Officer may vacate or modify the subpoena when, after such investigation as the Presiding Officer considers appropriate, he or she finds that:

(1) the testimony or evidence whose production is required does not relate with reasonable directness to any matter in question in the adjudicatory proceeding;

(2) a subpoena for the attendance of a witness or the production of evidence is unreasonable or oppressive;

(3) the subpoena has not been issued sufficiently in advance of the time specified for the appearance of the witness or the production of evidence;

(4) the subpoena would require the disclosure of privileged or confidential material where no waiver or exception applies; or

(5) the subpoena would require production of an un-retained expert's opinion, including experts employed by government agencies.

The decision to grant or deny a petition to vacate or modify a subpoena will be in writing.

I. Enforcement. If any person fails or refuses to obey a subpoena, the Department may apply to any Justice of the Superior Court for an order compelling that person to comply with the subpoena. The Superior Court may issue an order and may punish failure to obey the order as civil contempt.

J. Costs. The Presiding Officer may condition issuance of the subpoena upon the advancement by the party on whose behalf the subpoena was issued of the reasonable cost of producing the books, papers, records, documents, data, electronic records, or tangible things.

Notes

06-096 C.M.R. ch. 534, § 13