(A)Hearing
examiner may allow pre-hearing discovery.
(1)As a part of
the authority to conduct the hearing, and except as provided in paragraph (B)
of this rule, the hearing examiner may allow pre-hearing discovery of any
matter that is not privileged or confidential and is relevant to the subject
matter of the proceeding, provided that such discovery is necessary to
facilitate the thorough and adequate preparation of the hearing. The
participants to any hearing governed by this chapter may also conduct
pre-hearing discovery by mutually agreeable methods or by stipulations subject
to approval by the hearing examiner. When a method of pre-hearing discovery is
permitted, it shallis to
be conducted in accordance with the Ohio Rules of Civil Procedure (7/1/2016)(7/1/2023)
unless the hearing examiner orders otherwise, and except as modified by
paragraph (B) of this rule. Use of discovered material at any hearing shallis to also be
governed by the Ohio Rules of Civil Procedure.
(2)When permitted
pursuant to this rule, pre-hearing discovery may begin immediately after a hearing
request is timely made, and shall be completed
before the actual commencement of the hearing. The hearing examiner may limit
the length of the time allowed for discovery and may shorten the time allowed
for response to discovery requests. Pre-hearing discovery may be obtained
through use of interrogatories, requests for the production of documents,
permission to enter upon land or other property, depositions, and requests for
admissions.
(3)Nothing in this
rule prohibits an appellant or ODJFS from gaining access to any information
made public by the operation of state law.
(B)Discovery not
permitted in specified certain hearings.
(1)Discovery is
not available in hearings requested pursuant to Chapters 5103. and 5104. of the
Revised Code unless the parties stipulate to limited or full pre-hearing
discovery.
(2)Section 5101.29
of the Revised Code designates the following records held by ODJFS or a county
department of job and family services or a public children services agency as
not being public records and these records are not discoverable:
(a)Names and other
identifying information regarding children enrolled or attending a child day
care center or home subject to licensure, certification, or registration under
Chapter 5104. of the Revised Code.
(b)Names and other
identifying information regarding children placed with an institution or
association certified under section 5103.03 of the Revised Code.
(c)Names and other
identifying information regarding a person who makes a written or oral complaint
regarding aan institution
or association, child day care center or home subject to licensure,
certification or registration under Chapter 5103. or 5104.
of the Revised Code.
(C)Depositions.
For the purpose of conducting a hearing, ODJFS or any appellant
may take depositions of witnesses residing within or without the state in the
same manner as is prescribed by law for the taking of depositions in civil
actions in the court of common pleas of this state. Depositions of ODJFS
employees are to be conducted in the Columbus offices of ODJFS during normal
business hours unless other arrangements are approved by ODJFS.
(D)Subpoena
issuance and enforcement.
ODJFS, upon its own motion or that of any appellant, will issue
a subpoena requiring the attendance of witnesses and the production of books
and records as are necessary for the purpose of conducting a hearing.
(1)Upon the
request of the appellant, ODJFS will issue a subpoena for any witness or a
subpoena duces tecum to compel the production of any books, records, or papers.
ODJFS will issue such subpoena in blank to a party requesting it, who is solely
responsible for completing the subpoena form, including the address where the
person is to be served, and returning it to the depository agent along with a
written request for service. The written request along with the completed
subpoena shallare to
be received by the depository agent no later than twenty-one business days
before the commencement of the hearing or deposition, unless otherwise ordered
for good cause shown. Upon its own initiative and for its own use, ODJFS may
issue a subpoena for any purpose set forth in this rule or otherwise authorized
by law. At its discretion, ODJFS may make available electronically a subpoena
in blank and may authorize electronic submission of a completed subpoena.
(2)All subpoenas
issued under this rule shallare to be directed to the sheriff of the county where
the person to be served resides or is found. The subpoena shallis to be served and
returned in the same manner as a subpoena in a criminal case. Fees and mileage
of the sheriff and the witness shallare to be the same as that allowed in the court of
common pleas in criminal cases. ODJFS shallwill pay allowable fees and mileage.
(3)In any case of
disobedience or neglect of any subpoena served upon any person, or the refusal
of any witness to testify to any matter in which there may be lawful
interrogation, ODJFS shallis
to apply to the court of common pleas where such disobedience, neglect,
or refusal occurs for an order to compel obedience by attachment proceedings
for contempt, as in the case of disobedience of the requirements of a subpoena
issued from such court, or a refusal to testify therein.
Effective: 1/1/2024
Five Year Review (FYR) Dates: 10/13/2023 and 01/01/2029
Certification: CERTIFIED ELECTRONICALLY
Date: 12/18/2023
Promulgated Under: 119.03
Statutory Authority: 5101.02
Rule Amplifies: 119.06, 119.07, 119.09, 1701.07, 1703.19,
5101.24, 5103.12, 5103.03, 5104.03, 5104.04
Prior Effective Dates: 01/01/1983, 01/10/1987, 12/01/1987
(Emer.), 02/15/1988, 02/01/1999, 04/01/2004, 10/01/2008, 02/28/2014, 01/01/2019