Any party may request the issuance of a subpoena in the name
of the Department to require the attendance and testimony of witnesses and the
production of any evidence relating to any issue of fact in the licensing
proceeding. Prior to requesting a subpoena, the party shall exhaust all other
reasonable means of procuring attendance of the witness or the information
sought such as asking for voluntary attendance or submission of the
information. Such requests must be directed to the Presiding Officer for
determination and action.
A.
For Documents. The Department may issue subpoenas pursuant to 38 M.R.S.
§345-A(4) to compel the production of books, records and other data
relevant to the matters in issue at a hearing. If any person served with a
subpoena demonstrates to the satisfaction of the Department that the production
of the information would, if made public, divulge methods or processes which
are entitled to protection as trade secrets, or if the information is otherwise
protected by law, the information shall be disclosed only at a non-public
portion of the hearing and shall be confidential and not available for public
inspection.
B.
For Attendance
of Witnesses. The Department may issue a subpoena compelling the
attendance of a witness to provide testimony relevant to the matters in issue
at a hearing if it first obtains the approval of the Attorney General or of any
Deputy Attorney General pursuant to the Maine Administrative Procedure Act, 5
M.R.S. §9060.
C.
Department Staff, Outside Agency Review Staff, and Department Hired
Consultants.
Department staff, outside agency review staff, and Department
hired consultants who assist the Presiding Officer, Commissioner or Board as
described in section 5 are not subject to subpoena.
D.
Public Records. Prior to
requesting a subpoena for public records, the party shall exhaust all other
means of procuring the documents including making a request for copies of
public records pursuant to the Maine Freedom of Access Act.
E.
Form. Subpoenas will be in
the form used by the courts of the State. Every subpoena will bear the name of
the Department, the name of the issuing officer, and the name and address of
the party at whose request it was issued. Each subpoena will command the person
to whom it is directed to attend and give testimony or produce specified
documents or things at a designated time and place. The subpoena will also
advise of the procedure to vacate or modify provided herein. Witnesses may only
be subpoenaed within Maine's territorial limits and in the same manner as
witnesses in civil cases before the courts, unless another territory or manner
is provided by law.
F.
Service. Service of a subpoena must be arranged by the requesting party
and made by delivering a copy of the subpoena to the person named in it. Unless
the witness will accept service by other means, a subpoena must be served by a
person who is not a party to the proceeding and is not less than eighteen years
of age. Fees for attendance and mileage must be served simultaneously with the
subpoena and must be the same as those paid witnesses in the Superior Courts of
this State and must be paid for by the party requesting the subpoena.
G.
Return. The person serving
the subpoena shall make proof of service by filing the subpoena and affidavit
or acknowledgement of service with the Presiding Officer. Failure to make such
proof of service shall not affect the validity of the subpoena and
service.
H.
Vacating or
Modifying Subpoena. Any person subpoenaed to produce records or provide
testimony may petition the Presiding Officer to vacate or modify a subpoena
issued by the Department. The Department shall give prompt notice of such a
petition to the party who requested issuance of the subpoena and all other
parties. The Presiding Officer may vacate or modify the subpoena when, after
such investigation as the Presiding Officer considers appropriate, he or she
finds that:
1) the testimony or evidence
whose production is required does not relate with reasonable directness to any
matter in question in the licensing proceeding;
2) a subpoena for the attendance of a witness
or the production of evidence is unreasonable or oppressive;
3) the subpoena has not been issued
sufficiently in advance of the time specified for the appearance of the witness
or the production of evidence;
4)
the subpoena would require the disclosure of privileged or confidential
material where no waiver or exception applies; or
5) the subpoena would require production of
an un-retained expert's opinion, including experts employed by government
agencies.
The decision to grant or deny a petition to vacate or modify
a subpoena must be in writing.
I.
Enforcement. If any person
fails or refuses to obey a subpoena, the Department may apply to any Justice of
the Superior Court for an order compelling that person to comply with the
subpoena. The Superior Court may issue an order and may punish failure to obey
the order as civil contempt.
J.
Costs. The Presiding Officer may condition issuance of the
subpoena upon the advancement by the party on whose behalf the subpoena was
issued of the reasonable cost of producing the books, papers, records,
documents, data, electronic records, or tangible things.
