W. Va. Code R. § 121-1-41

Current through Register Vol. XLI, No. 41, October 11, 2024

Section 121-1-41 - Subpoenas for persons, papers or other tangible things

41.1. In general. -- Upon the written request of any party, the administrative law judge assigned to the matter, or, if an administrative law judge has not been assigned yet, the chief administrative law judge, may issue subpoenas to require the attendance of witnesses at an administrative hearing or subpoenas duces tecum to require the production of books, records, or other tangible things at a deposition or hearing.

41.1.1. A request for a subpoena or for a subpoena duces tecum shall be made in writing at least ten (10) days in advance of the hearing.

41.1.2. All subpoenas and subpoenas duces tecum shall be issued in the name of the office of tax appeals.

41.1.3. A party requesting their issuance must see that they are properly served.

41.2. Preparation of subpoenas. -- The party requesting the subpoena or subpoena duces tecum shall prepare the same for consideration by and the signature of the administrative law judge. The party may prepare subpoenas or subpoenas duces tecum forms that are generally used in proceedings before the circuit court of this state, with any appropriate modifications.

41.3. Signature of ALJ. -- If the administrative law judge determines that the subpoenas or subpoenas duces tecum should be issued as requested, the administrative law judge will sign the prepared subpoenas and deliver the same to the party making such request. Service of the subpoenas and subpoenas duces tecum are the responsibility of the person making the request.

41.4. Service of subpoena. -- The party requesting issuance of a subpoena or subpoena duces tecum shall see that it is properly served. Every subpoena or subpoena duces tecum shall be served at least five (5) days before the return date thereof, either by personal service made by any person over eighteen (18) years of age, or by registered or certified mail.

41.5. Proof of service.

41.5.1. Except as provided in subdivision 41.5.2, proof of service of a subpoena or subpoena dues tecum shall be made to the executive director of the office of tax appeals by written statement of the date and manner and the name of the person served, that is certified by the person who made the service.

41.5.2. A return receipt card or other return acknowledgment signed by the person to whom the subpoena or subpoena duces tecum is directed shall be required to prove service by registered or certified mail.

41.6. Fee for service. -- Any person who serves a subpoena or subpoena duces tecum shall be entitled to the same fee as sheriffs who serve witness subpoenas for the circuit courts of this state. Fees for the attendance and travel of witnesses subpoenaed shall be the same as for witnesses before the circuit court of this state.

41.6.1. All fees related to any subpoena or subpoena duces tecum issued at the instance of the state tax department or other agency, without the request of an interested party, shall be paid by the state tax department or other agency that asked that the subpoena or subpoena duces tecum be issued.

41.6.2. All fees related to any subpoena or subpoena duces tecum issued at the instance of an interested party shall be paid by the party who asked that the subpoena or subpoena duces tecum be issued.

41.7. Duties in responding to a subpoena duces tecum.

41.7.1. A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories stated in the subpoena duces tecum.

41.7.2. When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as hearing preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.

41.7.3. A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or inspection of premises need not appear in person at the place for production or inspection unless commanded to appear for the deposition or evidentiary hearing.

W. Va. Code R. § 121-1-41