(a) General rules.
(1) If a witness will not be available
for the hearing, a party desiring to preserve that witness’
testimony for the record may apply in accordance with the procedures
set forth in paragraph (a)(2) of this section, to the ALJ for the
issuance of a subpoena, including a subpoena duces tecum, requiring
the attendance of the witness at a deposition. The ALJ may issue a
deposition subpoena under this section upon showing:
(i) The
witness will be unable to attend or may be prevented from attending
the hearing because of age, sickness or infirmity, or will otherwise
be unavailable;
(ii) The witness’ unavailability was not procured or caused
by the subpoenaing party;
(iii) The testimony is reasonably expected
to be material; and
(iv) Taking the deposition will not result in any undue burden to
any other party and will not cause undue delay of the proceeding.
8-070.1
(2) The application must
contain a proposed deposition subpoena and a brief statement of the
reasons for the issuance of the subpoena. The subpoena must name the
witness whose deposition is to be taken and specify the time, manner,
and place for taking the deposition. A deposition subpoena may require
the witness to be deposed at any place within the country in which
that witness resides or has a regular place of employment, by remote
means, or such other convenient place or manner, as the ALJ fixes.
8-070.2
(3) Any requested subpoena
that sets forth a valid basis for its issuance must be promptly issued,
unless the ALJ requires a written response or requires attendance
at a conference concerning whether the requested subpoena should be
issued.
8-070.3
(4) The party obtaining
a deposition subpoena is responsible for serving it on the witness
and for serving copies on all parties. Unless the ALJ orders otherwise,
no deposition under this section may be taken on fewer than ten days’
notice to the witness and all parties.
8-070.4
(b) Objections to deposition subpoenas.
(1) The witness and any party
who has not had an opportunity to oppose a deposition subpoena issued
under this section may file a motion with the ALJ to quash or modify
the subpoena prior to the time for compliance specified in the subpoena,
but not more than ten days after service of the subpoena.
(2) A statement of the basis
for the motion to quash or modify a subpoena issued under this section
must accompany the motion. The motion must be served on all parties.
8-070.5
(c) Procedure upon deposition.
(1) Each witness testifying
pursuant to a deposition subpoena must be duly sworn. By stipulation
of the parties or by order of the ALJ, a court reporter or other person
authorized to administer an oath may administer the oath remotely
without being in the physical presence of the deponent. Each party
must have the right to examine the witness. Objections to questions
or documents must be in short form, stating the grounds for the objection.
Failure to object to questions or documents is not deemed a waiver
except where the ground for the objection might have been avoided
if the objection had been timely presented. All questions, answers,
and objections must be recorded.
8-070.6
(2) Any party may move before the ALJ for
an order compelling the witness to answer any questions the witness
has refused to answer or submit any evidence the witness has refused
to submit during the deposition.
(3) The deposition must be subscribed by
the witness, unless the parties and the witness, by stipulation, have
waived the signing, or the witness is ill, cannot be found, or has
refused to sign. If the deposition is not subscribed by the witness,
the court reporter taking the deposition must certify that the transcript
is a true and complete transcript of the deposition.
8-070.7
(d) Enforcing subpoenas. If a subpoenaed person fails to comply with any subpoena issued
pursuant to this section, or fails to comply with any order of the
ALJ, which directs compliance with all or any portion of a deposition
subpoena under paragraph (b) or (c)(2) of this section, the subpoenaing
party or other aggrieved party may, to the extent authorized by applicable
law, apply to an appropriate United States district court for an order
requiring compliance with the portions of the subpoena with which
the subpoenaed party has not complied. A party’s right to seek
court enforcement of a deposition subpoena in no way limits the sanctions
that may be imposed by the ALJ on a party who fails to comply with,
or procures a failure to comply with, a subpoena issued under this
section.
