(A) Upon written motion of any party, and upon service of that motion to the opposing party, the hearing officer may order that the testimony of a witness be taken by deposition in lieu of live testimony under such conditions and terms as the hearing officer shall set, and that any information, in whatever form maintained, not privileged, or tangible objects be produced at the same time and place if it appears probable that:
(1) The witness will be unavailable to attend the administrative hearing;
(2) The testimony of the witness is material;
(3) The testimony of the witness is necessary;
(4) In the case of an expert witness, a showing of the unavailability of the expert shall not be necessary for the hearing officer's consideration of the motion of a representative to take a deposition in lieu of live testimony.
(B) The parties shall agree to the time and place for taking the deposition in lieu of live testimony. Depositions shall be conducted in the same county in which the hearing is conducted unless otherwise agreed to by the parties. If the parties are unable to agree, the hearing officer shall set the time and place of the deposition. At a deposition taken pursuant to this rule, parties shall have the right, as at hearing, to fully examine witnesses. The hearing officer has the discretion to be present at the deposition.
(C) A deposition taken under this rule shall be offered into evidence at hearing by the party requesting the deposition, in lieu of the witness' live testimony at hearing.
(D) Any deposition or transcript of prior testimony of a witness may be used for the purpose of refreshing the recollection, contradicting the testimony or impeaching the credibility of that witness. If only a part of a deposition of prior testimony is offered into evidence by a party, the opposing party may offer any other part. A transcript of testimony and exhibits from a prior court or administrative proceeding may be introduced for any purpose if that prior proceeding forms the basis for the allegations in the current case. Upon offering part of a transcript or exhibit from a prior proceeding, the offering party may be required by the opposing party to present any other part of the offered item which should in fairness be considered contemporaneously with it.
R.C. 119.032 review dates: 03/04/2009 and 03/04/2014
Promulgated Under: 119.03
Prior Effective Dates: 9/25/2004