W. Va. Code R. § 158-17-6

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

Section 158-17-6 - Prehearing Discovery

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

6.1.1. Any record, report, memorandum or communication dealing with the internal practice, policy or procedure of the Commission;

6.1.2. Any record, report, memorandum, or communication of Commission staff or members regarding the institution, progress or result of an investigation of a Complaint or made in anticipation of or in preparation for a hearing;

6.1.3. The work product of an attorney, investigator or other staff member made in the course of an investigation of a Complaint or in anticipation of or in preparation for a hearing on the Complaint, or any report, record, memorandum, or communication made by Commission staff, the Commission, or Review Board, during the investigation of a complaint or in anticipation of or in preparation for a hearing on the Complaint which is otherwise privileged;

6.1.4 Any memorandum, statement or mental impression prepared or obtained by the Commission's attorney or staff;

6.1.5. Any documents protected by the attorney-client privilege; and

6.1.6. The identity of confidential informants and sources, unless they are to be used as witnesses.

6.2. The parties shall exchange within sixty days of the Respondent's receipt of the Notice of the Hearing:

6.2.1. reports of experts to be used at the hearing;

6.2.2. the names of any witnesses the party expects to call at the hearing, including their addresses and telephone numbers;

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

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

6.3. Witness Statements -- At least seven 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. If a party fails to produce witness statements in a timely manner, the Hearing Examiner may bar that witness' testimony at the hearing unless good cause is shown for allowing the testimony.

6.4. Subpoenas and subpoenas duces tecum

6.4.1. The Commission may issue subpoenas and subpoenas duces tecum either at its own instance or upon written application of a party to the Executive Director whenever necessary to compel the attendance of witnesses and the introduction of books, records, correspondence, documents, papers or any other evidence which is relevant to the Complaint or Statement of Charges.

6.4.2. When a subpoena is issued at the request of a party to the hearing, the cost of service, witness and mileage fees shall be borne by the party at whose request the subpoena is issued. When the subpoena is issued at the instance of the Commission, the cost of service shall be borne by the Commission. This subdivision does not, however, bar the Commission from ordering the Respondent to pay the cost in accordance with W. Va. Code § 6B-2-4(s).

6.4.3. Witness and mileage fees shall be the same as are paid witnesses in the circuit courts of this state.

6.4.4. It is the responsibility of a party requesting the issuance of a subpoena or subpoena duces tecum to serve it by personal service, registered or certified mail, return receipt requested, or registered or certified mail, return receipt requested with delivery restricted to the person to whom the subpoena or subpoena duces tecum is directed. A party required to prove service by registered or certified mail must prove service by producing or filing with the Ethics Commission a return receipt or acknowledgement signed by the person to whom the subpoena or subpoena duces tecum is directed.

6.5. Depositions

6.5.1. Depositions may be obtained by either party and used for evidentiary or discovery purposes.

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

6.5.3. There is no requirement that the Hearing Examiner attend a deposition.

6.5.4. 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:

6.5.4.a. the name and address of the person whose deposition is requested;

6.5.4.b. a brief statement of the matters on which the person is to be examined; and

6.5.4.c. a brief statement of the reasons for taking the deposition.

6.5.6. If the Hearing Examiner grants the request to take 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.

6.5.7. 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.

6.5.8. The cost of court reporter services, witness fees and expenses shall be borne by the party taking the deposition. This subdivision does not, however, bar the Commission from ordering the Respondent to pay the cost in accordance with W. Va. Code § 6B-2-4(s).

6.5.9. 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. § 158-17-6