New Electronic Options - April 29, 2020

In view of limited staffing and office access due to COVID-19 social distancing criteria, OALJ is now offering three types of subpoena processing: regular mail, emailed requests, and a streamlined electronic process being piloted for longshore and Defense Base Act cases.

Because some offices are not receiving mail regularly, use of the mail may result in significant delays in issuance of subpoenas. For those offices, the email processes described are recommended.

See Subpoena Processing - New Electronic Options for information about how to use the electronic options.

Overview

Section 556(c)(2) of the Administrative Procedure Act provides that an administrative law judge may issue subpoenas authorized by law. 5 U.S.C. § 556(c)(2). See also 5 U.S.C. § 555(d). The U.S. Department of Labor, Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges are found at 29 C.F.R. Part 18. Section 18.56, which is quoted below, states the procedures governing issuance of subpoenas relating to matters pending before the United States Department of Labor, Office of Administrative Law Judges (OALJ) or in a longshore or black lung case pending before the District Director, Office of Workers' Compensation programs (OWCP).

The Process

To obtain a subpoena you may either:

(1) Download the subpoena form off this web site; complete the applicable information; print the subpoena, and send it to the appropriate judge with a request for issuance of the subpoena. If approved by the presiding judge, the subpoena will be returned with the case number inscribed, the judge's signature and an embossed USDOL seal.

Note: You can fill out the form on-line and save a copy on a local drive on your computer. If you do so, it is recommended that you do a "Save-As" and give the document a new name.

The information you type on these forms is not transmitted over the Internet. You must print the completed form, and mail it to the trial judge.

or

(2) Contact the presiding judge's office in writing to request blank subpoenas. The request must specify which type of subpoena is being sought. At the presiding judge's discretion, you may be provided with up to 10 blank subpoenas for use in an individual case. At the discretion of the presiding judge, (a) you will be provided with blank subpoenas that include the case number, embossed seals, and signatures ready for use in the pending matter—or—(b) you will be provided with blank subpoenas that must be completed, including identification of the individual or entity who will be served, and returned to the presiding judge for evaluation and approval prior to use. Some judges may impose additional requirements for issuance of subpoenas; but in all cases requests for more than 10 blank subpoenas must include a written justification.

Who to contact

Mailing addresses and phone numbers are found on the Index of Offices page. All requests for subpoenas must be made in writing.

Assigned case: Once a case is assigned to a presiding judge, all subpoena requests must be made to that judge's office. The National Office will NOT issue subpoenas once a case is assigned.

Unassigned case: In Longshore cases that have not yet been assigned to a presiding judge, direct requests for subpoenas to the applicable District Office, or, if you are not sure of which District Office has the case, to the National Office in Washington, D.C.

For all other unassigned cases, applications for subpoenas should be directed to the National Office in Washington, D.C.

Cases Pending Before the District Director: For Longshore workers' compensation cases, the Office of Administrative Law Judges (OALJ) has the exclusive authority to issue subpoenas, whether the case is before the OWCP or the OALJ. See Maine v. Brady-Hamilton Stevedore Co., 18 BRBS 129 (1986) (en banc); Butler v. Ingalls Shipbuilding, Inc., 28 BRBS 114 (1994). All requests for subpoenas in cases still pending before OWCP should be directed to the OALJ National Office in Washington, D.C. or to the appropriate OALJ District Office. For FECA claims you must request subpoenas from OWCP. See 20 C.F.R. §§ 10.619, 10.620.

Subpoena validity

To be valid, a subpoena must (1) show the case number and (2) bear the signature of the administrative law judge having the authority to issue the subpoena. See 29 C.F.R. § 18.56(a)(2)(i)(A), (B). The case number must be a valid OWCP or ALJ case number and not an insurance claim number or internal case file number. When returned from the issuing judge the subpoena will include a raised USDOL seal to verify its validity.

The subpoena should be served with both Page 1 and Page 2. If practical, the subpoena should be printed as a two-sided copy on a single sheet of paper.

Department of Veterans Affairs Records

The Department of Veterans Affairs requires a VA Form 10-5345 “Request for and Authorization to Release Medical Records or Health Information” to accompany all subpoenas for VA records.

Social Security Numbers

Generally, parties should not put a Social Security number on the subpoena. In the event that the case number is an individual’s Social Security number only the last four numbers may be used. See 29 C.F.R. §§ 18.31(a)(1) and 18.56(a)(2)(i)(A) (2015).

Rule - 29 C.F.R. § 18.56

§ 18.56   Subpoena.

   (a) In general.

   (1) Upon written application of a party the judge may issue a subpoena authorized by statute or law that requires a witness to attend and to produce relevant papers, books, documents, or tangible things in the witness’ possession or under the witness’ control.

   (2) Form and contents

   (i) Requirements—in general. Every subpoena must:

   (A) State the title of the matter and show the case number assigned by the Office of Administrative Law Judges or the Office of Worker’s Compensation Programs. In the event that the case number is an individual’s Social Security number only the last four numbers may be used. See § 18.31(a)(1);

   (B) Bear the signature of the issuing judge;

   (C) Command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person’s possession, custody, or control; or permit the inspection of premises; and

   (D) Set out the text of paragraphs (c) and (d) of this section.

   (ii) Command to attend a deposition—notice of the recording method. A subpoena commanding attendance at a deposition must state the method for recording the testimony.

   (iii) Combining or separating a command to produce or to permit inspection; specifying the form for electronically stored information. A command to produce documents, electronically stored information, or tangible things or to permit the inspection of premises may be included in a subpoena commanding attendance at a deposition or hearing, or may be set out in a separate subpoena. A subpoena may specify the form or forms in which electronically stored information is to be produced.

   (iv) Command to produce; included obligations. A command in a subpoena to produce documents, electronically stored information, or tangible things requires the responding party to permit inspection, copying, testing, or sampling of the materials.

   (b) Service

   (1) By whom; tendering fees; serving a copy of certain subpoenas. Any person who is at least 18 years old and not a party may serve a subpoena. Serving a subpoena requires delivering a copy to the named person and, if the subpoena requires that person’s attendance, tendering with it the fees for 1 day’s attendance and the mileage allowed by law. Service may also be made by certified mail with return receipt. Fees and mileage need not be tendered when the subpoena issues on behalf of the United States or any of its officers or agencies. If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before the formal hearing, then before it is served on the person to whom it is directed, a notice and copy of the subpoena must be served on each party.

   (2) Service in the United States. Subject to paragraph (c)(3)(i)(B) of this section, a subpoena may be served at any place within a State, Commonwealth, or Territory of the United States, or the District of Columbia.

   (3) Service in a foreign country. 28 U.S.C. 1783 governs issuing and serving a subpoena directed to a United States national or resident who is in a foreign country.

   (4) Proof of service. Proving service, when necessary, requires filing with the judge a statement showing the date and manner of service and the names of the persons served. The statement must be certified by the server.

   (c) Protecting a person subject to a subpoena

   (1) Avoiding undue burden; sanctions. A party or representative responsible for requesting, issuing, or serving a subpoena must take reasonable steps to avoid imposing undue burden on a person subject to the subpoena. The judge must enforce this duty and impose an appropriate sanction.

   (2) Command to produce materials or permit inspection

   (i) Appearance not required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition or hearing.

   (ii) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or representative designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises—or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply:

   (A) At any time, on notice to the commanded person, the serving party may move the judge for an order compelling production or inspection.

   (B) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance.

   (3) Quashing or modifying a subpoena

   (i) When required. On timely motion, the judge must quash or modify a subpoena that:

   (A) Fails to allow a reasonable time to comply;

   (B) Requires a person who is neither a party nor a party’s officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person—except that, subject to paragraph (c)(3)(ii)(C) of this section, the person may be commanded to attend the formal hearing;

   (C) Requires disclosure of privileged or other protected matter, if no exception or waiver applies; or

   (D) Subjects a person to undue burden.

   (ii) When permitted. To protect a person subject to or otherwise affected by a subpoena, the judge may, on motion, quash or modify the subpoena if it requires:

   (A) Disclosing a trade secret or other confidential research, development, or commercial information;

   (B) Disclosing an unretained expert’s opinion or information that does not describe specific occurrences in dispute and results from the expert’s study that was not requested by a party; or (C) A person who is neither a party nor a party’s officer to incur substantial expense to travel more than 100 miles to attend the formal hearing.

   (iii) Specifying conditions as an alternative. In the circumstances described in paragraph (c)(3)(ii) of this section, the judge may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party:

   (A) Shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and

   (B) Ensures that the subpoenaed person will be reasonably compensated.

   (d) Duties in responding to a subpoena

   (1) Producing documents or electronically stored information. These procedures apply to producing documents or electronically stored information:

   (i) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand.

   (ii) Form for producing electronically stored information not specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.

   (iii) Electronically stored information produced in only one form. The person responding need not produce the same electronically stored information in more than one form.

   (iv) Inaccessible electronically stored information The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the judge may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of § 18.51(b)(4)(iii). The judge may specify conditions for the discovery.

   (2) Claiming privilege or protection

   (i) Information withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as hearing-preparation material must:

   (A) Expressly make the claim; and

   (B) Describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.

   (ii) Information produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as hearing-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the judge in camera for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved.

   (e) Failure to obey. When a person fails to obey a subpoena, the party adversely affected by the failure may, when authorized by statute or by law, apply to the appropriate district court to enforce the subpoena.