W. Va. Code R. § 158-5-12

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 158-5-12 - Prehearing Discovery

12.1. Information which is exempt from discovery includes, but is not limited to the following:

12.1.a. any record, report, memorandum, or communication dealing with the internal practice, policy and procedure of the commission.

12.1.b. any record, report, memorandum, or communication of the staff or commission member regarding the institution, progress or result of an investigation of a complaint.

12.1.c. the work product of an investigator or other staff member made in the course of an investigation of a complaint, or in preparation for an investigative panel, or in anticipation of or in preparation for a hearing on the complaint.

12.1.d. any memorandum, statement or opinion prepared or directed to be prepared by legal counsel to the commission.

12.2. The parties shall exchange within twenty-five (25) days of the mailing and receipt of notice of the hearing to the respondent:

12.2.a. reports of experts to be used at the hearing;

12.2.b. a list of witness names, addresses, and telephone numbers as available to be used at the hearing;

12.2.c. copies of documents to be used at the hearing; and

12.2.d. results of any inspection of tangible objects to be used at the hearing.

12.3. Witness Statements -- At least seven (7) days prior to the hearing the parties shall exchange written and signed statements, tape recorded statements, and statements adopted by individuals who will be witnesses at the hearing which are within the respondent's or commission's possession.

12.3.a. If a party fails to comply with section 12.3. of this rule to produce witness statements in a timely manner the hearing examiner shall bar that witness' testimony at the hearing unless good cause can be shown and the hearing examiner allows the witness' testimony.

12.4. Production of Witnesses -- Each party is entitled to compel through subpoena the attendance of any witness whose testimony may be relevant and material, except that a party is not entitled to the presence of a witness who is determined unavailable. A witness is unavailable in, but not limited to, the following situations:

12.4.a. The witness is not subject to compulsory process in West Virginia by reason of non-residence within, or prolonged absence from the State of West Virginia;

12.4.b. The witness is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity;

12.4.c. The witness is exempted from testifying by ruling of a circuit court on the ground of privilege from testifying.

12.5. Where a subpoena is issued at the instance of a party to the hearing, the cost of service, and the witness and mileage fee shall be borne by the party at whose request the subpoena is issued, at the same rate as paid to witnesses in state circuit court proceedings. The party who uses an expert witness at the hearing is responsible for payment of the appearance fee of the witness.

12.5.a. The presence of a witness may be obtained by the issuance of a subpoena requiring the attendance of the witness at the designated place, time and hearing date. A subpoena for a witness may be issued by the hearing examiner upon the written application of any party. It is the responsibility of the party requesting the issuance of a subpoena to serve the subpoena on a witness by personal service or certified mail, return receipt requested.

12.6. Production of Documents -- Each party is entitled to compel through a subpoena duces tecum the production of documents which are relevant and material to the hearing. A subpoena duces tecum may be issued by the hearing examiner upon written application of any party. It is the responsibility of the party requesting the issuance of a subpoena duces tecum to serve the subpoena on the authorized records custodian by certified mail or personal service.

12.7. Depositions -- Depositions may be obtained by any party and used for evidentiary purposes.

12.7.a. Evidentiary objections may be made on the record during any deposition or at the time the deposition is offered into evidence.

12.7.b. It is not necessary that a hearing examiner be present at the deposition.

12.7.c. A party may be permitted to take a deposition of a witness, within or without the State of West Virginia upon written request to and approval by the hearing examiner. A request for deposition shall contain:

12.7.c.1. the name and address of the person whose deposition is requested;

12.7.c.2. a brief statement of the matters on which the person is to be examined; and

12.7.c.3. a brief statement of the reasons for taking the deposition in lieu of eliciting testimony at a hearing.

12.7.d. If approval is granted for the deposition, the party taking the deposition shall provide reasonable notice of the deposition to the person deposed, all parties, and their counsel of record.

12.7.e. The notice shall be in writing and contain the date, time and place of the deposition, as well as the name and address of each person to be deposed.

12.7.f. The cost of court reporter services, witness fees and expenses shall be borne by the party taking the deposition.

12.7.g. The deposition shall be taken in the manner proscribed by the laws of West Virginia for taking depositions in civil cases in courts of record except as set forth in this rule.

W. Va. Code R. § 158-5-12