Section R20-5-141. Subpoena Requests for Witnesses; Objection to Documents or Reports Prepared by Out-of-State Witness

A.      Subpoena requests for witnesses.

1.        Subpoena request for non-medical witness. A party may request a presiding administrative law judge to issue a subpoena to compel the appearance of a non-medical wit- ness by filing a written request with the presiding admin- istrative law judge at least 10 days before the date of the first scheduled hearing.

2.        Subpoena request for expert medical witness. A party may request a presiding administrative law judge to issue a subpoena to compel the appearance of an expert medi- cal witness by filing a written request with the presiding administrative law judge at least 20 days before the date of the first scheduled hearing.

3.        Statement of expected testimony. In the discretion of the presiding administrative law judge, the judge may order the party requesting a subpoena to file within five days of the order a written statement summarizing the substance of the testimony expected of the witness.

4.        Issuance of Subpoena. A presiding administrative law judge shall issue a subpoena requested under this Section if the judge determines that the testimony of the witness is material and necessary and, if applicable:

a.        The party files a timely statement under subsection (A)(3); or

b.        The party shows at or before the first scheduled hearing that good cause exists for the party’s failure to respond timely to the judge’s order under subsec- tion (A)(3).

5.        Service of a subpoena. The Commission may serve a sub- poena by mail unless the party requesting the subpoena requests personal service. If a party requests personal ser- vice of a subpoena, the Commission shall prepare the subpoena and the party requesting personal service shall:

a.        Ensure that the subpoena is served in the same man- ner as in a civil action; and

b.        Pay all expenses of the service.

B.       A presiding administrative law judge shall not grant a party a continued hearing because a subpoenaed witness fails to appear at hearing unless the party filed a timely request for subpoena as required by subsection (A). If a party timely requested a subpoena for a witness who fails to appear at a scheduled hearing, the presiding administrative law judge may grant a continued hearing if the party requesting the subpoena demonstrates that:

1.        The testimony of the witness is material and necessary, and

2.        Good cause is shown as to why the witness failed to appear.

C.      Witness Fees.

1.        If a non-medical witness requests a witness fee, the party requesting the subpoena shall pay the non-medical wit- ness fees and mileage provided for witnesses in civil actions in the Superior Court. If more than one party sub- poenas the same witness, the parties shall divide the wit- ness fee equally.

2.        The Commission shall pay the witness fee to a medical witness under the Commission’s medical fee schedule after the presiding administrative law judge approves the fee.

D.      Objection to an out-of-state physician’s report.

1.        A presiding administrative law judge shall not consider or place into evidence a timely filed physician’s report authored by a physician residing outside Arizona if a party files an objection to that report at least 20 days before the scheduled hearing, unless the party submitting the report produces the author for cross-examination either at the hearing or at a deposition.

2.        Nothing in R20-5-143(G) precludes a party from taking or submitting into evidence a deposition of a physician taken under this subsection.

3.        The party submitting into evidence a report of an out-of- state physician shall pay the expenses of a deposition taken under this subsection.

E.       Objection to document prepared by out-of-state non-medical witness.

1.        A presiding administrative law judge shall not consider or place into evidence a timely filed document prepared by a non-medical witness who resides outside Arizona if a party files an objection to that document at least seven days before the scheduled hearing unless the party sub- mitting the document produces the author for cross- examination either at the hearing or at a deposition.

2.        Nothing in R20-5-143 precludes a party from taking or submitting into evidence a deposition within the time lim- its set by a presiding administrative law judge.

3.        The party submitting into evidence a document prepared by an out-of-state non-medical witness shall pay the expenses of a deposition taken under this subsection.

F.       If a presiding administrative law judge approves, the testi- mony of a party’s out-of-state non-medical or expert medical witness may be taken telephonically.

Historical Note

Former Rule 41. Amended effective March 1, 1987, filed

February 26, 1987 (Supp. 87-1). R20-5-141 recodified

from R4-13-141 (Supp. 95-1). Amended by final rulemaking at 7 A.A.R. 3966 and 7 A.A.R. 4995, effec-

tive August 17, 2001 (Supp. 01-3).