(04/2020) Administrative Subpoena to Appear and Testify at a Deposition
NOTICE: This subpoena is only valid in proceedings before the Office of
Administrative Law Judges or Office of Workers' Compensation Programs. To be
valid, this subpoena must bear the digital signature of a Department of Labor
(DOL) administrative law judge
.
29 C.F.R. §18.56 Subpoenas
(c) Protecting a Person Subject to a Subpoena.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or representative
responsible for requesting, issuing or serving a subpoena must take
reasonable steps to avoid imposing undue burden on a person subject to the
subpoena. The judge must enforce this duty and impose an appropriate
sanction.
(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to produce
documents, electronically stored information, or tangible things, or to
permit inspection of premises, need not appear in person at the place of
production or inspection unless also commanded to appear for a
deposition or hearing.
(B) Objections. A person commanded to produce documents or tangible
things or to permit inspection may serve on the party or representative
designated in the subpoena a written objection to inspecting, copying,
testing or sampling any or all of the materials or to inspecting the
premises - or to producing electronically stored information in the form
or forms requested. The objection must be served before the earlier of
the time specified for compliance or 14 days after the subpoena is
served
(i) At any time, upon notice to the commanded person, the serving
party may move the judge for an order compelling production or
inspection.
(ii) These acts may be required only as directed in the order, and the
order must protect a person who is neither a party nor a party's
officer from significant expense resulting from compliance.
(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the judge must quash or modify a
subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person who is neither a party nor a party's officer to
travel more than 100 miles from where that person resides, is
employed, or regularly transacts business in person - except that,
subject to paragraph (c)(3)(B)(iii) of this section, the person may
be commanded to attend the formal hearing;
(iii) requires disclosure of privileged or other protected matter, if no
exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) When permitted. To protect a person subject to or affected by a
subpoena, the judge may, on motion, quash or modify the subpoena if it
requires:
(i) disclosing a trade secret or other confidential research,
development, or commercial information;
(ii) disclosing an unretained expert's opinion or information that does
not describe specific occurrences in dispute and results from the
expert's study that was not requested by a party; or
(iii) a person who is neither a party nor a party's officer to incur
substantial expense to travel more than 100 miles to attend the
formal hearing.
(d) Duties in Responding to a Subpoena.
(1) Producing Documents or Electronically Stored Information. These procedures
apply to producing documents or electronically stored information:
(A) Documents. A person responding to a subpoena to produce
documents must produce them as they are kept in the ordinary course of
business or must organize and label them to correspond to the
categories in the demand.
(B) Form for Producing Electronically Stored Information Not
Specified. If a subpoena does not specify a form for producing
electronically stored information, the person responding must produce
it in a form or forms in which it is usually maintained or in a reasonably
usable form or forms.
HIPAA NOTICE: In regard to the Privacy of Individually Identifiable Health
Information under the Health Insurance Portability and Accountability Act of
1996, if this subpoena does not bear the digitized signature of a DOL
administrative law judge, it is not valid under 45 C.F.R. §§164.512(e), 164.512
(f) or 164.512(l).
(C) Electronically Stored Information Produced in Only One Form.
The person responding need not produce the same electronically
stored information in more than one form.
(D) Inaccessible Electronically Stored Information. The person
responding need not provide discovery of electronically stored
information from sources that the person identifies as not reasonably
accessible because of undue burden or expense. On motion to
compel discovery or for a protective order, the person responding
must show that the information is not reasonably accessible because
of undue burden or cost. If that showing is made, the judge may
nonetheless order discovery from such sources if the requesting party
show good cause. The judge may specify conditions for the
discovery.
(2) Claiming Privilege or Protection.
(A) Information Withheld. A person withholding subpoenaed
information under a claim that it is privileged or subject to protection
as hearing-preparation material must:
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents,
communications, or tangible things in a manner that, without
revealing information itself privileged or protected, will enable
the parties to assess the claim.
(B) Information Produced. If information produced in response to a
subpoena is subject to a claim of privilege or of protection as
hearing-preparation material, the person making the claim may
notify any party that received the information of the claim and the
basis for it. After being notified, a party must promptly return,
sequester, or destroy the specified information and any copies it has;
must not use or disclose the information until the claim is resolved;
must take reasonable steps to retrieve the information if the party
disclosed it before being notified; and may promptly present the
information to the judge in camera for a determination of the claim.
The person who produced the information must preserve the
information until the claim is resolved.
(e) Failure to Obey. When a person fails to obey a subpoena, the party
adversely affected by the failure may, when authorized by statute or law, apply
to the appropriate District Court to enforce the subpoena.
29 C.F.R. §18.52 Protective orders
(a) In General. A party or person from whom discovery is sought may file a
written motion for a protective order. The motion must include a certification
that the movant has in good faith conferred or attempted to confer with the
affected parties in an effort to resolve the dispute without the judge's action.
The judge may, for good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense, including
one or more of the following:
(1) Forbidding the disclosure or discovery;
(2) Specifying terms, including a designation of the time and place, for the
disclosure or discovery;
(3) Prescribing a discovery method other than the one selected by the party
seeking discovery;
(4) Forbidding inquiry into certain matters, or limiting the scope of disclosure
or discovery to certain matters;
(5) Designating the persons who may be present while discovery is conducted;
(6) Requiring that a deposition be sealed and only opened on the judge's order;
(7) Requiring that a trade secret or other confidential research, development,
or commercial information not be revealed or be revealed only in a
specified way; and
(8) Requiring that the parties simultaneously file specified documents or
information in sealed envelopes, to be opened as the judge directs.
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NOTICES
