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OCAHO Practice Manual

OCAHO Practice Manual
Chapter 5 - Discovery

5.6 - Subpoenas

(a) Generally

The ALJ may issue subpoenas as authorized by statute either prior to or subsequent to the filing of a complaint. A party may file a request for issuance of a subpoena with the ALJ using the Form EOIR-30.

(b) Possible Subjects of Subpoenas

Subpoenas may require:

  • attendance and testimony of witnesses; and/or
  • production of things, including, but not limited to papers, books, documents, records, correspondence, or tangible things under the possession and control of the person or entity to whom the subpoena is addressed.

(c) Service of Subpoenas

A party may serve a subpoena by overnight courier service, overnight mail, certified mail, or personal delivery by any person 18 years of age or older.

(d) Contents of Subpoenas

The subpoena must identify the person to whom it is returnable (and the place, date, and time at which it is returnable), and must identify:

  • the person or things subpoenaed; and/or
  • the nature of the evidence to be examined and copied, and the date and time when access is requested.

(e) Subpoenas Directed to Nonparties

If a non-party is subpoenaed, the requestor must give notice to all parties to the case. In cases under INA § 274B, if a complaint has not yet been filed, the requestor must give notice to individuals or entities who have been charged with an unfair immigration-related employment practice, the individual initiating the alleged unfair immigration-related employment practice and the Immigrant and Employee Rights Section (in the Civil Rights Division of the U.S. Department of Justice). Receipt of the subpoena will serve as notice for purposes of this paragraph.

(f) Petitions to Revoke or Modify Subpoenas

Any person served with a subpoena issued by an ALJ who intends not to comply with the subpoena must file a petition to revoke or modify the subpoena with the ALJ within 10 days after the date of service of the subpoena.

The party filing a petition to revoke or modify must serve a copy on all parties to the proceeding. If a complaint has not been filed in the matter, service must be made on the individual or entity that requested the subpoena.

A party will have standing to challenge a subpoena issued to a non-party if the party can claim a personal right or privilege in the discovery sought.

The petition to revoke or modify must:

  • specifically identify each portion of the subpoena with which the petitioner intends not to comply;
  • with respect to each such portion, state the grounds upon which the petitioner relies; and
  • include a copy of the subpoena with the petition.

Within 8 days after receipt of the petition to revoke or modify, the individual or entity that requested the subpoena may file a response to the petition.

The ALJ will make a final determination upon the petition and will serve a copy of the determination on all involved parties, individuals, and entities.         

(g) Failure to Comply with a Subpoena

If any person fails to comply with a lawfully-issued subpoena, the ALJ may apply through appropriate counsel to the appropriate United States District Court for an order requiring compliance with the subpoena.

(h) Mileage and Witness Fees

Other than a witness subpoenaed on behalf of the Federal Government, a witness cannot be required to attend a deposition or hearing unless the mileage and witness fee applicable to witnesses in courts of the United States is paid in advance of the date of the proceeding.