Consider whether you need to have a subpoena issued to require witnesses to appear at the hearing or produce documents. A subpoena is an order requiring people to provide documents or testimony. Attorneys are allowed by law to issue subpoenas to compel people to appear at a hearing or produce documents.
Parents not represented by an attorney can obtain subpoenas from OAH before the due process hearing by requesting them in writing or by telephone from the OAH case manager assigned to the case. Tell the case manager whether the subpoenas are for a person to testify or for documents, or for both.
The OAH case manager will prepare the subpoena forms to be sent to parents. Parents must then fill in the subpoena details such as the name of the person being required to come to court or a description of the documents being requested before submitting it to OAH to obtain a judge’s signature. The subpoena must be signed by an OAH judge or by an attorney representing parents prior to being sent to the witness or person who has documents needed.
Subpoenas for Documents
Subpoenas for documents must identify the person, business or organization that has the documents and describe the documents to be produced. The subpoena must also say why the documents are necessary for the case. The person producing the documents should produce them at the hearing, on the first day of the hearing. Subpoenas for documents must comply with strict timelines to obtain the documents and some subpoenas seeking personal documents are required to be sent a longer time in advance of the hearing.
Subpoenas for documents may be served by mail. If serving by mail add five days to the service time. Service by fax or email is only allowed if you get written permission agreeing to fax or email service from the person being served prior to the subpoena being sent.
Subpoenas for Witnesses
Subpoenas for people to testify must name the person and the time, date and place of the due process hearing. If the hearing is continued and the witness is subpoenaed for the incorrect hearing date, parents must get a new subpoena with the correct hearing date, or reach an agreement with the witness to appear on the new date. If you have such an agreement, be sure it is in writing.
Subpoenas to have a person testify do not need to be served any particular number of days before the day the person is scheduled to testify. However, it is best to give as much notice as possible to the witness you subpoena. Subpoenas must be properly served. In general, personal service is required for a subpoena that requires someone to testify. Personal service means handing the subpoena to the person. This is important because unless the person had actual notice of the hearing, and the person issuing the subpoena can prove they had notice, it is difficult to make the person attend. The person serving the subpoena should complete a Proof of Service so the party issuing the subpoena has proof it was delivered. Generally, the subpoena should be served (handed to the person you want to testify) by someone other than the party requiring the witness's attendance.
The law requires payment of witness fees and mileage to witnesses who are compelled to attend a due process hearing by subpoena. Parents are responsible for paying the witness fees and mileage of any witnesses the parent subpoenas to the hearing, unless the witness waives them. If it becomes necessary to obtain a subpoena after the hearing has begun, the judge who is conducting the due process hearing can sign the parents' subpoena form.
A subpoena can be enforced by seeking a contempt order from the Superior Court in the county where the hearing is held. Because obeying a subpoena is required by state law, they cannot be enforced by OAH in the administrative process.