(A) Upon written motion of any party, and upon service of that motion to the other party's representative of record, the hearing examiner may order that the testimony of a prospective witness be taken by deposition in lieu of live testimony. The hearing examiner may grant the motion if it appears probable that:
(1) The prospective witness will be unavailable to attend or will be prevented from attending a hearing;
(2) The testimony of the prospective witness is material; and
(3) In the case of an expert witness, a showing of the unavailability of the expert to attend shall not be necessary for the hearing examiner's consideration of the motion to take a deposition in lieu of live testimony.
(B) The testimony shall be taken under such conditions and terms as the hearing examiner shall set forth. Moreover, the hearing examiner may order the production of any designated books, papers, documents or tangible objects, so long as not privileged, at the same time and place.
(C) The parties shall agree to the time and place for taking the deposition in lieu of live testimony. Depositions in lieu of live testimony 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 examiner shall set the time or fix the place of deposition.
(D) At a deposition in lieu of live testimony taken under this rule, each party shall have the right, as at hearing, to fully examine witnesses.
(E) The transcript of a deposition in lieu of live testimony taken under this rule shall be offered into evidence at hearing. The cost of preparing a transcript of any testimony taken by deposition in lieu of live testimony which is submitted as evidence at the hearing shall be borne by the board.
(F) The expense of any video deposition shall be borne by the requestor.
Five Year Review (FYR) Dates: 05/05/2016 and 07/31/2021
Promulgated Under: 119.03
Statutory Authority: 4731.05
Rule Amplifies: 119.09 ; 4731.23
Prior Effective Dates: 6/30/89, 3/27/97, 2/28/04