(A) Upon written motion of any representative of record, and upon service of that motion to all other representatives, the appointed hearing officer or the hearing examiner may order that the testimony of a prospective witness be taken by deposition under such conditions and terms as the appointed hearing officer or the hearing examiner shall set and that any designated books, papers, documents or tangible objects, not privileged, be produced at the same time and place if it appears probable that:
(1) The prospective witness will be unavailable to attend or will be prevented from attending a hearing; and
(2) The testimony of the prospective witness is material; and
(3) The testimony of the prospective witness is necessary in order to prevent a failure of justice.
(B) In the case of an expert witness, a showing of the unavailability of the expert shall not be necessary for the appointed hearing officer or hearing examiner's consideration of the motion of a representative to take a deposition.
(C) The representatives of record 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 representatives of record. If the representatives of record are unable to agree, the appointed hearing officer or hearing examiner shall set the time or fix the place of deposition. At a deposition taken pursuant to this rule, representatives of record shall have the right, as at hearing, to fully examine witnesses. A deposition taken under this rule may be offered into evidence at hearing by either representative of record in lieu of the prospective witness' personal appearance. The cost of preparing a transcript of any testimony taken by deposition in lieu of live testimony which is offered as evidence at the hearing shall be borne by the party that requested the deposition. In the event of appeal, such costs shall be made a part of the cost of the hearing record.
(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 is offered into evidence by a representative of record, the opposing representative of record may offer any other part. Nothing in this paragraph shall be construed to permit the taking of depositions for purposes other than those set forth in paragraph (A) of this rule.
(E) A transcript of testimony and exhibits from a prior proceeding may be introduced for any purpose if that prior proceeding forms the basis for the allegations. Upon offering part of a transcript or exhibit from a prior proceeding, the offering representative of record may be required by the opposing representative of record to present any other part of the offered item which should in fairness be considered contemporaneously with it.
Cite as Ohio Admin. Code 4761:1-12-13