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(1) A hearing subpoena is issued in a contested case and directs a person to appear at a particular time and place to testify as a witness. A subpoena duces tecum may also require the person to produce any records, books, documents, or other materials under the person's control which may be relevant to facts at issue in the pending case.

(2) Any party to a contested case may request a hearing subpoena or subpoena duces tecum. Except as provided in (7) , a request for a subpoena must be made in writing to the OALJ. Such a request must be made within the time set by the ARM 37.62.919 scheduling order.

(3) A request for a subpoena must be accompanied by an affidavit which includes:

(a) the name and address of the witness or the person or entity having control over the material to be subpoenaed;

(b) a brief statement as to why the testimony of the witness or production of the subpoenaed material is reasonable, necessary and relevant to an issue of fact; and

(c) if the request is for a subpoena duces tecum, the affidavit must also include:

(i) a short, plain statement identifying or specifying the information requested by the subpoena; and

(ii) a statement as to why the information cannot be reasonably obtained by other less intrusive means.

(4) A request for subpoena under this rule that is not timely or not accompanied by a supporting affidavit shall be denied by the OALJ.

(5) Upon receipt of a request meeting the requirements of this rule, the OALJ shall issue the subpoena and deliver it to the requesting party. The requesting party is responsible for having the subpoena served on the witness or the person or entity having control of the subpoenaed material. The requesting party is also responsible for the costs of service, the costs of witness fees and mileage if requested by the witness, and the costs of preparing, copying and transmitting documentary materials. The method of service of subpoenas and the provisions for witness fees and mileage shall be the same as required in district court civil actions.

(6) If the person to whom a subpoena is directed objects to the subpoena before the time specified for compliance with the subpoena, that person may contact the OALJ in writing concerning the objection. The OALJ will refer the matter to the presiding ALJ. After providing the parties with an opportunity to present argument, the ALJ may:

(a) sustain the subpoena;

(b) quash or modify the subpoena if it is unreasonable or requires evidence not relevant or material to any matter in issue; or

(c) impose additional conditions as may be just and reasonable.

(7) Subpoenas issued under this rule may be enforced as provided by 2-4-102 (2) and 40-5-226 (13) , MCA.

(8) An order denying, quashing or modifying a subpoena is not a final agency decision for purposes of the judicial review but may be considered as part of the judicial review of the final decision and order in the contested case.

(9) Except for the enforcement provisions of (7) , this rule does not apply to genetic testing subpoenas issued under 40-5-233 , MCA.

History: Sec. 17-4-105, 40-5-202, 40-5-262, 40-5-272, 40-5-273, 40-5-405, 40-5-713, 40-5-825 and 40-5-906, MCA; IMP, Sec. 17-4-105, 40-5-157, 40-5-202, 40-5-208, 40-5-226, 40-5-233, 40-5-261, 40-5-271, 40-5-273, 40-5-414, 40-5-431, 40-5-703, 40-5-710, 40-5-821, 40-5-822, 40-5-823, 40-5-824 and 40-5-906, MCA; NEW, 2000 MAR p. 3547, Eff. 12/22/00.

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