(A) Upon written motion of any representative
of record, and upon service of that motion to all other representatives, the
attorney hearing examiner may order that the testimony of a witness be taken by
deposition in lieu of live testimony under such conditions and terms as the
attorney hearing examiner shall set, and that any designated books, papers,
documents or tangible objects, not privileged, be produced at the same time and
place if it appears probable that:
(1) The
witness will be unavailable to attend or will be prevented from attending a
hearing; and
(2) The testimony of
the witness is material; and
(3)
The testimony of the witness is necessary in order to prevent a failure of
justice.
In the case of an expert witness, a showing of the
unavailability of the expert shall not be necessary for the attorney hearing
examiner's consideration of the motion of a representative to take a deposition
in lieu of live testimony.
(B) The representatives shall agree to the
time and place for taking the deposition in lieu of live testimony. Depositions
shall be conducted in the same county in which the hearing is conducted unless
otherwise agreed to by the representatives. If the representatives are unable
to agree, the attorney hearing examiner shall set the time or fix the place of
deposition. At a deposition taken pursuant to this rule, representatives shall
have the right, as at hearing, to fully examine witnesses. The attorney hearing
examiner has the discretion to be present at the deposition in lieu of
testimony at hearing.
(C) A
deposition taken under this rule shall be filed with the board not later than
one day prior to hearing, and shall be offered into evidence at hearing by the
representative requesting the deposition, in lieu of the witness' live
testimony at hearing. The cost of preparing a transcript of any testimony taken
by deposition in lieu of live testimony shall be borne by the board. In the
event of appeal, such costs shall be made a part of the cost of the hearing
record. The expense of any video deposition shall be borne by the requestor.
(D) Any deposition or transcript
of prior testimony of a witness may be used for the purpose of refreshing the
recollection, contradicting the testimony or impeaching the credibility of that
witness. If only a part of a deposition of prior testimony is offered into
evidence by a representative, the opposing representative may offer any other
part. Nothing in this paragraph shall be construed to permit the taking of
depositions for purposes other than those set forth in paragraph (A) of this
rule.
A transcript of testimony and exhibits from a prior proceeding
may be introduced for any purpose if that prior proceeding forms the basis for
the allegations in the current case. Upon offering part of a transcript or
exhibit from a prior proceeding, the offering representative may be required by
the opposing representative to present any other part of the offered item which
should in fairness be considered contemporaneously with it.
Notes
Ohio Admin. Code
4715-15-21
Five Year Review (FYR) Dates:
10/1/2021 and
10/01/2026
Promulgated
Under: 119.03
Statutory
Authority: 4715.03
Rule
Amplifies: 4715.03,
4715.30, 119.
Prior
Effective Dates: 11/10/2000
Five Year Review (FYR) Dates:
09/27/2016 and
09/25/2021
Promulgated
Under: 119.03
Statutory Authority: 4715.03
Rule
Amplifies: 4715.03(D), 4715.30, Chapter 119.
Prior Effective Dates:
11/10/2000
