Section 20406 - Discovery(a) Witness and Document Lists. Either party shall within fifteen (15) days of receipt of a Board order directing the parties to mandatory mediation and conciliation have the right to demand in writing, served personally or by registered or certified mail, that the other party provide a list of witnesses it intends to call designating which witnesses will be called as expert witnesses and a list of documents it intends to introduce on the record at the mediation. A copy of the demand shall be served on the mediator.(1) Witness and document lists shall be served personally or by registered or certified mail on the requesting party within ten (10) days of service of the request. Copies of the lists shall be served on the mediator.(2) Listed documents shall be made available for inspection and copying at reasonable times prior to the hearing.(3) Time limits provided herein may be waived by mutual agreement of the parties if approved by the mediator.(4) The failure to list a witness or a document shall not bar the testimony of an unlisted witness or the introduction of an undesignated document at the mediation, provided that good cause is shown, as determined by the mediator. The introduction of bona fide rebuttal evidence shall constitute good cause.(b) Subpoenas. After the appointment of a mediator, and prior to the commencement of mediation, any member of the Board, or the Executive Secretary, or any person authorized by the Board, shall upon the ex parte request of a party to a mediation, issue subpoenas requiring the attendance and testimony of witnesses and or the production of any materials, including, but not limited to, books, records, correspondence or documents in their possession or under their control. Requests for subpoenas at or after the first mediation session shall be made to the mediator. (1) The subpoena shall show on its face the name, address, and telephone number of the party at whose request the subpoena was issued. A copy of a declaration under penalty of perjury shall be served with a subpoena duces tecum showing good cause for the production of the matters or things described in the subpoena, specifying the exact matters or things desired to be produced, setting forth in full detail the materiality thereof to the issues tendered by the party and stating that the party or witness has the desired matters or materials in his or her possession or under his or her control. Information concerning the financial condition of the employer and its ability to meet the costs of the contract shall not be discoverable except where the employer makes a plea of inability to meet the union's wage and benefit demands; however, other financial information may be discoverable if necessary to verify or evaluate a party's claims or proposals.(2) Service of subpoenas shall be made personally or by registered or certified mail. The service shall be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance.(3) Any person on whom a subpoena is served who does not intend to comply shall, within 5 days, after the date of service, petition the mediator in writing to revoke the subpoena. The petition shall be sent to the mediator by registered or certified mail and served by the same means upon the party requesting the subpoena. The petition to revoke shall explain with particularity the grounds for objecting to each item covered by the petition, which shall include a copy of the subpoena. The mediator shall have the discretion, where good cause is shown, to modify the time requirements regarding subpoenas and subpoena compliance.(4) The mediator shall revoke the subpoena in whole or in part if the evidence required to be produced does not relate to any matter in question or does not describe with sufficient particularity the evidence required to be produced or the testimony or records sought are privileged or otherwise protected or if the subpoena is otherwise invalid.(5) The mediator shall rule on all petitions to revoke. Upon the failure of any person to comply with a ruling by the mediator enforcing a subpoena, the mediator may request the Board apply for a court order enforcing the subpoena.(c) In addition to the limitations set forth above, discovery requests shall be considered untimely if submitted prior to the identification of issues required by section 20407, subdivision (a)(1).(d) Enforcement of Discovery. For the purpose of enforcing the duty to make discovery, to produce evidence or information, including books and records, and to produce persons to testify, the mediator may draw adverse inferences or impose terms, conditions, or sanctions upon a party. For the purposes of this section, "party" shall be deemed to include the officers, directors, agents, and employees of such party. The files, books, and records of each officer, director, agent, or employee shall be deemed to be in the possession and control of, and capable of production by, such party.Cal. Code Regs. Tit. 8, § 20406
1. New section filed 5-7-2003; operative 5-7-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 19). Note: Authority cited: Section 1144, Labor Code. Reference: Sections 1151 and 1164, Labor Code.
1. New section filed 5-7-2003; operative 5-7-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 19).