W. Va. Code R. § 105-1-11 - Subpoenas and Discovery

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.

Notes

W. Va. Code R. § 105-1-11