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Chapter 3.3. Occupational Safety and Health Appeals Board

Article 3. Prehearing Procedure Discovery, and Motions

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372.2. Subpoena and Subpoena Duces Tecum.

(a) Before the hearing has commenced, the Appeals Board shall issue a subpoena and subpoena duces tecum at the request of a party for attendance of a person at a hearing and for production of a document or thing at the hearing or prehearing conference or at any reasonable time and place. After the hearing has commenced, the Appeals Board may, upon a showing of good cause by the requesting party, issue a subpoena or subpoena duces tecum.

(b) Application for a subpoena duces tecum requires:

(1) Compliance with the provisions of Section 1985 to 1985.4, inclusive, of the Code of Civil Procedure as a condition precedent to the issuance of a subpoena duces tecum; and that

(2) The application for a subpoena duces tecum shall be in the form of an affidavit or declaration under penalty of perjury and shall show good cause for the production of the document or thing requested, specifying the exact document or thing desired to be produced, setting forth in full detail the materiality thereof to the issues involved in the proceeding, and stating that the witness has the desired document or thing in the possession or control of the witness. The application shall also state that if the personal attendance of the witness or other qualified custodian of the records is not required, compliance pursuant to Article 4 (commencing with Section 1560) of the Evidence Code will be permitted.

(c) Any subpoena or subpoena duces tecum issued pursuant to subdivision (a) extends to all parts of the State. The provisions of Sections 1987 and 1988 of the Code of Civil Procedure are applicable to the service of a subpoena or a subpoena duces tecum. Service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. Service of a subpoena or subpoena duces tecum is made by delivering a copy to the witness together with a copy of the affidavit or declaration upon which the subpoena duces tecum is based, giving or offering at the same time, if demanded, the fees to which the witness is entitled for travel to and from the place designated. See Section 382 for amount of witness fees and mileage. Service shall be made by personal delivery or by certified mail return receipt requested or by messenger.

(1) Service by personal delivery may be made by any person.

(2) Service by messenger shall be effected when the witness acknowledges receipt of the subpoena to the sender, by telephone, by mail, or in person, and identifies himself or herself either by reference to date of birth and driver's license number or Department of Motor Vehicles identification number, or the sender may verify receipt of the subpoena by obtaining other identifying information from the recipient. The sender shall make a written notation of the acknowledgment. A subpoena issued and acknowledged pursuant to this section has the same force and effect as a subpoena personally served. Failure to comply with a subpoena issued and acknowledged pursuant to this section may be punished as a contempt and the subpoena may so state.

(d) All witnesses appearing pursuant to subpoena, other than the parties or officers or employees of the State or any political subdivision thereof, shall receive fees, and all witnesses appearing pursuant to subpoena, except the parties, shall receive mileage in the same amount and under the same circumstances as prescribed by law for witnesses in civil actions in a superior court. Fees and mileage shall be paid by the party at whose request the witness is subpoenaed. See Section 382 for amount of witness fees and mileage. All reasonable costs, as defined at Section 1563(b)(1) of the Evidence Code, incurred by a witness not a party, with respect to the production of a business record pursuant to a subpoena duces tecum, shall be paid to the witness before being required to deliver the document.

(e) No witness shall be obligated to attend unless the witness is a resident of the state at the time of service.

(f) Upon timely motion of a party or witness, or upon its own motion, after notice to the parties and an opportunity to be heard, upon a showing of good cause, the Appeals Board may order the quashing of a subpoena or subpoena duces tecum entirely, may modify it, or may direct compliance with it upon other terms or conditions. In addition, the Appeals Board may make any other order as may be appropriate to protect a party or witness from unreasonable or oppressive demands.

NOTE: Authority cited: Sections 148.7 and 6603(a), Labor Code. Reference: Sections 1985, 1987 and 1988, Code of Civil Procedure; Section 1563, Evidence Code; Sections 11181, 11184, 11450.10, 11450.20, 11450.30, 11450.40, 11450.50, 68093, 68097.1 and 68097.2, Government Code; and Sections 148.7, 148.8, 149.5 and 6603(a), Labor Code.

HISTORY

1. Amendment filed 2-1-84; effective thirtieth day thereafter (Register 84, No. 5).

2. Amendment filed 4-24-86; effective thirtieth day thereafter (Register 86, No. 17).

3. Amendment of subsections (a), (a)(2), (b), and Note filed 10-30-92; operative 11-30-92 (Register 92, No. 44).

4. Amendment of section and Note filed 6-23-97; operative 7-1-97 (Register 97, No. 26). This interim regulation is exempt from most of the procedural requirements of the Administrative Procedure Act (specifically, from Articles 5 and 6 of Chapter 3.5, Division 3, Title 2, Government Code) and from review by the Office of Administrative Law pursuant to Government Code sections 11400.20 and 11400.21 and will expire on December 31, 1998, unless earlier terminated or replaced by, or readopted as, permanent following the procedures of the Administrative Procedure Act.

5. Permanent adoption of amended section and Note filed 7-11-97; operative 7-11-97 pursuant to Government Code section 11343.4(d) (Register 97, No. 28).

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