OAR 586-030-0040
Testimony of Witness Not Present at Hearing
(1)
With the consent of all parties, testimony of witnesses may be by telephonic or other electronic means of voice transmission.(2)
Absent consent, a written request can be made to the Executive Secretary for permission to take testimony by telephonic or other electronic means of voice transmission. The request shall be filed and served on the opposing parties at least 15 days before the scheduled commencement of the hearing and shall provide the following information:(a)
Name and address of witnesses whose testimony is sought;(b)
A brief description of the nature of the evidence to be presented; and(c)
Reasons why the witness will not be present at the hearing.(3)
If circumstances prevent compliance with the 15 day requirement set forth above, the request shall be filed and served as soon as possible after the party learns of the specific need.(4)
The opposing party has 5 days (or a reasonable time if less notice if given) to respond in writing.(5)
The Executive Secretary, if necessary, or panel legal counsel, shall rule on the request. A conference call may be scheduled to hear from the parties. Factors include whether:(a)
The witness is located or currently working outside the State of Oregon;(b)
A subpoena could be used to compel attendance; and(c)
Attendance would be unduly burdensome to the witness or the party calling the witness.(6)
The request shall normally be granted unless the party opposing the request would be deprived of a fair hearing under all the circumstances. The ruling shall be communicated to all parties by the most expeditious means possible.(7)
In deciding on the request, alternatives including perpetuation of testimony, use of prior testimony or continuance of the hearing may be considered. Factors to evaluate include:(a)
The statutory timeframe to conclude the hearing;(b)
Whether personal appearance is necessary to fairly decide the case;(c)
The availability for an appearance;(d)
Whether prior sworn testimony exists and is reliable; and(e)
The Due Process rights of the parties.(8)
If perpetuation of testimony is allowed the party utilizing this procedure has the responsibility of presenting either a transcript, as an exhibit for the hearing, or a video tape of the testimony, as specified in the Order. The panel would rule on all objections either at the time of the hearing or in the final order.(9)
After the hearing commences, any question about the form or timing of testimony shall be decided by the panel. The panel has the discretion to require the personal appearance of any witness if the circumstances dictate this is necessary for the panel to meet its obligation under the statute.
Source:
Rule 586-030-0040 — Testimony of Witness Not Present at Hearing, https://secure.sos.state.or.us/oard/view.action?ruleNumber=586-030-0040.