(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 shall be conducted in accordance with the Ohio Rules of Civil Procedure
(7/1/20127/1/2016) unless
the hearing examiner orders otherwise, and except as modified by paragraph (B) of
this rule. Use of discovered material at any hearing shall also be governed by the
Ohio Rules of Civil Procedure (7/1/2012).
(2)When permitted
pursuant to this rule, pre-hearing discovery may begin immediately after a hearing
request is timely made, and mustshall 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 a child day care center or home subject to licensure, certification or
registration under Chapter 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 mustshall 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 are toshall
be directed to the sheriff of the county where the person to be served resides or
is found. The subpoena is toshall be served and returned in the same manner as a subpoena
in a criminal case. Fees and mileage of the sheriff and the witness willshall be the same as that
allowed in the court of common pleas in criminal cases. ODJFS willshall 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 willshall 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: 1/1/2019
Five Year Review (FYR) Dates: 10/3/2018 and 01/01/2024
Certification: CERTIFIED ELECTRONICALLY
Date: 12/10/2018
Promulgated Under: 119.03
Statutory Authority: 5101.02, 5164.02
Rule Amplifies: 119.06, 119.07, 119.09, 1701.07, 1703.19, 5101.24,
5103.12, 5103.03, 5104.03, 5104.04, 5164.02
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