DIVISION OF OCCUPATIONAL
SAFETY AND HEALTH
SUBPOENAS AND LETTERS REQUESTING DOCUMENTS
AUTHORITY: California Labor Code Sec. 6304.5, 6313 and 6314(c) and California Government Code Sec. 68097.2.
POLICY: It is the policy of the Division of Occupational Safety and Health to issue a subpoena when necessary to compel the attendance of witnesses and the production of books, papers, records and physical materials, and to respond to all subpoenas served on the Division.
A. ISSUING AND SERVING SUBPOENAS
A subpoena or subpoena duces tecum, or both, may be served by the Division on an employer, a representative of the employer, or any other person, to obtain evidence during the course of an investigation or inspection.
Compliance personnel shall complete a Subpoena (Cal/OSHA 24A, Attachment A) and submit it to the District Manager for review and approval prior to service.
Compliance personnel shall complete a Subpoena and Subpoena Duces Tecum (Cal/OSHA 24B, Attachment B), send a copy to the appropriate Legal Unit Office for review, and submit the Form to the District Manager for review and approval prior to service.
Subpoenas shall be served by a contracted subpoena service, or, with the District Manager approval, by compliance personnel.
NOTE: When serving a subpoena, compliance personnel shall also complete a Declaration of Service (Cal/OSHA 25C, Attachment C), give a copy of the subpoena and Declaration to the person being served and place the original of the subpoena and the Declaration in the employer case file at the District Office.
Subpoenas used in conjunction with Occupational Safety and Health Appeals Board hearings may be obtained from the Appeals Board in Sacramento. Compliance personnel may contact the Legal Unit for assistance.
B. RESPONDING TO SUBPOENAS SERVED ON THE DIVISION
Personal service either upon the person designated in the subpoena, or service upon the individual's immediate supervisor, is required.
NOTE: When served with a subpoena requiring attendance at a trial, hearing, or deposition, compliance personnel shall make a demand for payment in advance of the applicable fee for one day's attendance if payment is not offered when the subpoena is served. Compliance personnel shall also notify the party who issued the subpoena that the applicable fee must be paid prior to attendance and that, if the fee is not received in a timely fashion, compliance personnel will not comply with the subpoena.
Subpoenas directed to the Custodian of Records at a particular Division Office may be accepted by any employee of that office, but shall not be accepted if the subpoena requires attendance at a deposition more than 75 miles from the Custodian of Records place of residence.
If compliance personnel are served with a subpoena in which the Division is the defendant in a civil injury case, compliance personnel shall contact the Deputy Attorney General, if known, or refer the subpoena to the appropriate office of the Legal Unit immediately.
When the Custodian of Records, or his or her designee, at a District Office has accepted a subpoena for records, the Custodian shall adhere to the following provisions:
After receiving the subpoena, the Custodian shall locate the requested records and if the records are located, the Custodian shall copy all records requested.
NOTE: If the requested records cannot be located, the Custodian shall complete and sign the Declaration of No Records (Cal/OSHA 24E, Attachment E) and mail it to the party who issued the subpoena.
NOTE: If photographs are not being disclosed, the Custodian shall also assert the Division's privilege not to disclose confidential records based on Labor Code Sec. 6314(a).
Fees for duplicating the requested materials shall be collected at the time the materials are delivered to the requesting party. The materials may be withheld until applicable fees are paid. All fees shall be in the form of checks payable to the State of California.
If the records are duplicated by the requesting party at the District Office, no duplicating fees shall be charged by the Division.
NOTE: If any records considered confidential are brought to the deposition or trial, the Custodian shall contain the records in a sealed envelope marked "Confidential" which shall not be released. The Custodian shall inform the party requesting the records or the court that the Division is asserting its privilege not to disclose confidential records based on Labor Code Sec. 6322 and Government Code Sec. 6254 and 6255. If photographs are not being disclosed, the Custodian shall also assert the Division's privilege not to disclose confidential records based on Labor Code Sec. 6314(a).
If compliance personnel receive a subpoena to provide testimony at a deposition, hearing or trial in a case where they did not participate in the underlying inspection, compliance personnel shall immediately notify the District Manager and refer the subpoena to the Legal Unit.
If compliance personnel receive a subpoena to provide testimony at a Appeals Board hearing in a case where compliance personnel participated in the underlying inspection, compliance personnel shall notify the District Manager and refer the subpoena to the Legal Unit immediately.
NOTE: Generally, however, the following three types of information given by compliance personnel at a deposition are not admissible at trial: (1) information relating to the issuance of, or failure to issue, a citation; (2) the application of occupational safety and health standards; and (3) all other types of expert testimony. Although in cases between an employer and his or her employee (chiefly, in workers' compensation cases, but also in civil suits), the three types of compliance personnel information are admissible. See Labor Code Section 6304.5.
C. REQUESTS FOR INFORMAL INTERVIEWS
Compliance personnel shall not grant interviews to private attorneys or investigators who wish to question compliance personnel about inspections, files or records of the Division.
D. LETTERS REQUESTING DOCUMENTS
Compliance personnel who receive letters requesting documents shall treat the letter like a subpoena duces tecum, except that a brief cover letter shall be sent by the Custodian of Records to the requesting party instead of a Declaration.
Compliance personnel and District Managers shall promptly comply with all discovery requests in matters concerning appeal of the Division's enforcement actions in an investigation or inspection.
NOTE: If the particular case, or the discovery portion of the case, is being handled by the Legal Unit, promptly fax the discovery request to the appropriate office of the Legal Unit.
The Division is not required to pay fees if the person who is subpoenaed is a party to a Division proceeding or an officer or employee of the State of California, or a political subdivision of the State.
When a subpoena duces tecum is served on the Division, the Division is entitled to fees as follows:
If attendance of the custodian is not required, the Division is entitled to duplicating charges only.
NOTE: For each photograph provided, the Division is entitled to $1.50 per photograph or digital print. [If multiple digital prints are requested, the requestor has the option to obtain such digital photos on a CD for a charge of $20.00 per CD]. A copy of an audio tape maybe obtained for $8.00 per tape.
Retired Division employees whose testimony is necessary in an Appeals Board hearing shall be reimbursed as follows:
NOTE: Retired personnel may request to be reinstated for the period of the hearing in which case the wages are not reduced by the amount of the retirement income.
Other former Division employees shall be entitled to the witness fee ($275.00 per day for each day's actual appearance).
Former employees shall prepare a bill, including full name, mailing address, social security number and retirement income amount, and submit the bill to the District Manager for signature. After signature, the District Manager shall forward the bill to the DIR Accounting Unit.