Section 305-4-006 - Prehearing Procedures006.01 Prehearing conferences and orders A hearing officer designated to conduct a hearing may determine, subject to the Commission's rules and regulations, whether a prehearing conference will be conducted. If a prehearing conference is not held, a hearing officer for the hearing may issue a prehearing order, based on the pleadings, to regulate the conduct of the proceedings.
006.01A Not less than twenty (20) days before the date set for the evidentiary hearing the Director shall issue an order on behalf of the Commission requiring each party, or their respective counsel of record, to exchange with each other: 1) a copy of each exhibit which the party may introduce into evidence, and 2) a list containing the name, address, and telephone number of each witness whom the party may call to testify. It shall not be necessary to disclose a witness or exhibit to be used solely for purpose of impeachment. The exchange shall be completed at least ten (10) days before the date set for hearing and a copy of each witness list and exhibit list shall be filed with the Agency at least ten (10) days before the date set for hearing. Additional witnesses may be called or exhibits introduced only at the discretion of a hearing officer for good cause shown. The Director shall not issue an order pursuant to this subsection when a hearing officer has been designed to conduct prehearing conferences and to rule on non-dispositive motions and when the hearing officer 1) has issued a prehearing conference order, 2) has scheduled a prehearing conference, or3) has issued a prehearing order based on the pleadings, without holding a prehearing conference, as provided in section 006.01.006.01B If a prehearing conference is conducted: 006.01B1 The hearing officer shall promptly notify the Agency of the determination that a prehearing conference will be conducted. The Commission Chairperson may assign another hearing officer for the prehearing conference; and006.01B2 The hearing officer for the prehearing conference shall set the time and place of the conference and give reasonable written notice to all parties and to all persons who have filed written petitions to intervene in the matter. The agency shall give notice to other persons entitled to notice.006.01B3 The notice referred to in subsection 006.01B 2 shall include the following: 006.01B3(a) The names and mailing addresses of all parties and other persons to whom notice is being given by the hearing officer;006.01B3(b) The name, official title, mailing address, and telephone number of any counsel or employee who has been designated to appear for the Agency;006.01B3(c) The official file or other reference number, the name of the proceeding, and a general description of the subject matter;006.01B3(d) A statement of the time, place, and nature of the prehearing conference;006.01B3(e) A statement of the legal authority and jurisdiction under which the prehearing conference and the hearing are to be held;006.01B3(f) The name, official title, mailing address, and telephone number of the hearing officer for the prehearing conference;006.01B3(g) A statement that a party who fails to attend or participate in a prehearing conference, hearing, or other stage of a contested case or who fails to make a good faith effort to comply with a prehearing order may be held in default under the Administrative Procedure Act; and006.01B3(h) Any other matters that the hearing officer considers desirable to expedite the proceedings.006.01C The hearing officer shall conduct a prehearing conference, as may be appropriate, to deal with such matters as exploration of settlement possibilities, preparation of stipulations, clarification of issues, rulings on identity and limitation of the number of witnesses, objections to proffers of evidence, determination of the extent to which direct evidence, rebuttal evidence, or cross-examination will be presented in written form and the extent to which telephone, television, or other electronic means will be used as a substitute for proceedings in person, order of presentation of evidence and cross-examination, rulings regarding issuance of subpoenas, and such other matters as will promote the orderly and prompt conduct of the hearing. The prehearing conference may include a hearing on any pending non-dispositive motions. The hearing officer shall issue a prehearing order incorporating the matters determined at the prehearing conference. Any proposed settlement or final disposition of the contested case, agreed to by the parties at the prehearing conference, shall be set forth in the prehearing order, together with the hearing officer's recommendation, and forwarded to the Commission.006.01D The hearing officer may conduct all or part of the prehearing conference by telephone, television, or other electronic means if each participant in the conference has an opportunity to participate in, to hear, and, if technically feasible, to see the entire proceeding while it is taking place.006.02 Continuances Any motion for a continuance shall be in writing, shall state in detail why a continuance is necessary, shall be served on all other parties, and shall be filed with the Agency. The Director shall have authority to grant a continuance upon the motion of any party unless otherwise directed by action of the Commission. If the Director denies a motion for continuance, the motion shall be directed to a hearing officer for determination under subsection 006.03. The Director also may order a continuance upon reasonable notice to the parties when the continuance is necessary for the orderly conduct of the Commission's agenda, unless otherwise prohibited by law.
006.03 Non-dispositive motions Non-dispositive motions, including motions relating to the conduct of discovery, and other non-dispositive procedural motions may be directed to and allowed by a hearing officer as permitted by law or if stipulated to by the parties.
006.03A The hearing officer shall set the time and place of the non-dispositive hearing and shall give reasonable notice to all parties and to all persons who have filed written petitions to intervene in the matter.006.03B The hearing officer may, in his or her discretion, grant extensions of time or continuances of hearings on the timely request of any party for good cause shown. A party must file a written motion for continuance which states in detail the reasons why a continuance is necessary and serve a copy of the motion on all other parties. 006.03B1 Good cause for an extension of time or continuance may include, but is not limited to, the following: 006.03B1(a) Illness of the party, legal counsel or witness;006.03B1(b) A change in legal representation; or006.03B1(c) Settlement negotiations are underway.006.04 Discovery in contested cases 006.04A The Director at the request of any party or the hearing officer shall issue subpoenas for discovery matters in accordance with the rules of civil procedure. The hearing officer, at the request of any party or upon the hearing officer's own motion, may issue discovery orders and protective orders in accordance with the rules of civil procedure except as may otherwise be prescribed by law.006.04B Any prehearing motion to compel discovery, motion to quash, motion for protective order or other discovery-related motion shall: 006.04B1 Quote the interrogatory, request, question, or subpoena at issue, or be accompanied by a copy of the interrogatory, request, subpoena or excerpt of a deposition;006.04B2 State the reasons supporting the motion;006.04B3 Be accompanied by a statement setting forth the steps or efforts made by the moving party or his or her counsel to resolve by agreement the issues raised and that agreement has not been achieved; and006.04B4 Be filed with the Agency. The moving party must serve copies of all such motions on all parties to the contested case.006.04C Other than as provided in subsection 006.04B 4 above, discovery materials need not be filed with the Agency.006.04D After a party has obtained an order to compel or other order pursuant to this subsection, the order may be enforced by the district court upon the application of the party obtaining the order.006.05 Amendments 006.05A An initial pleading may be amended at any time before an answer is filed or is due if notice is given to the opposing party or his or her attorney. In all other cases, a party must request permission to amend from the hearing officer.006.05B A hearing officer may also allow, in his or her discretion, the filing of supplemental pleadings alleging facts material to the case occurring after the original pleadings were filed. A hearing officer may also permit amendment of pleadings where a mistake appears or where amendment does not materially change a claim or defense.006.06 Informal Disposition Unless otherwise precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default.
305 Neb. Admin. Code, ch. 4, § 006