Chapter 3.3. Occupational Safety and Health Appeals Board

Article 3. Prehearing Procedure Discovery, and Motions

§372.4. Evidence by Affidavit or Declaration.

(a) At any time 10 or more days prior to a hearing or a continued hearing, a party may mail or deliver to the opposing party or parties a copy of any affidavit or declaration which the proponent proposes to introduce in evidence, together with a notice as provided in subdivision (b). Unless an opposing party, within 7 days after such mailing or delivery, mails or delivers to the proponent a request to cross-examine the affiant or declarant, the opposing party's right to cross-examine such affiant or declarant is waived and the affidavit or declaration, if introduced in evidence, shall be given the same effect as if the affiant or declarant had testified orally. If an opportunity to cross-examine an affiant or declarant is not afforded after request therefor is made as herein provided, the affidavit or declaration may be introduced in evidence, but shall be given only the same effect as other hearsay evidence.

(b) The notice referred to in subdivision (a) shall be substantially in the following form:

“The accompanying affidavit or declaration of (here insert name of affiant or declarant) will be introduced as evidence at the hearing in (here insert title and docket number or petition number of proceeding). (Here insert name) will not be called to testify orally and you will not be entitled to question the affiant or declarant unless you notify (name of the proponent, representative, agent or attorney) at (here insert address) that you wish to cross-examine the affiant or declarant. To be effective, your request must be mailed or delivered to (here insert name of proponent, representative, agent or attorney) on or before (here insert a date 7 days after the date of mailing or delivering the affidavit to the opposing party).”

(c) Nothing in this section shall be construed to limit or restrict the use of affidavits pursuant to Labor Code Section 6611.

NOTE: Authority cited: Sections 148.7, 149.5 and 6603(a), Labor Code. Reference: Section 11514, Government Code; and Sections 148.7, 149.5 and 6603(a), Labor Code.

HISTORY

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

2. Change without regulatory effect of subsections (a) and (b) filed 6-23-86; effective thirtieth day thereafter (Register 86, No. 26).