Chapter ERC 93

Chapter ERC 93

PREHEARING PRACTICE AND DISCOVERY

ERC 93.01   Prehearing conferences.

ERC 93.02   Exchange of documents and witness lists prior to hearing.

ERC 93.03   Discovery.

ERC 93.04   Ex parte communications.

ERC 93.05   Attendance of witnesses.

Ch. ERC 93 Note Note: Chapter PC 4 was renumbered Chapter ERC 93 under s. 13.92 (4) (b) 1., Stats., Register December 2014 No. 708.

ERC 93.01 ERC 93.01 Prehearing conferences.

ERC 93.01(1) (1) Purpose. Prehearing conferences are intended to provide an opportunity to formulate a statement of the issue or issues presented by a case, to identify potential witnesses, to attempt to reconcile differences among the parties and promote the settlement of cases and to perform any other functions in aid of the disposition of the case.

ERC 93.01(2) (2) How conducted. Prehearing conferences may be conducted by telephone conference call or in person. A commissioner or member of the commission’s staff shall preside.

ERC 93.01(3) (3) Reports. The person presiding at the conference shall prepare a memorandum or report that summarizes the results of the conference. Copies of the report shall be served on all parties.

ERC 93.01 History History: Cr. Register, March, 1980, No. 291, eff. 4-1-80; renum. from PC 1.05 and am. (1) and (2), cr. (3), Register, August, 1987, No. 380, eff. 9-1-87.

ERC 93.02 ERC 93.02 Exchange of documents and witness lists prior to hearing. With the exception of rebuttal matter, names of witnesses and copies of exhibits shall be filed and served at least 3 working days before the commencement of the hearing. For the purpose of this section only, service is complete on receipt rather than on mailing. If no good cause is shown for the failure to comply with this section, the hearing examiner or commission may exclude the evidence after consideration of the following factors:

ERC 93.02(1) (1) The prejudice or surprise experienced by the party against whom the evidence is being offered;

ERC 93.02(2) (2) The ability of that party to cure any prejudice;

ERC 93.02(3) (3) The extent to which waiver of the requirement would disrupt the orderly and efficient hearing of the case;

ERC 93.02(4) (4) Bad faith or willfulness in failing to comply with the requirements; and

ERC 93.02(5) (5) Other factors relevant to the determination.

ERC 93.02 Note Note: For example, compliance with the “3 working days” requirement in s. ERC 93.02 (intro.) means that the commission and the opposing party must each receive a party’s witness list and copies of exhibits no later than 4:30 p.m. on the Wednesday preceding a Monday hearing, where neither that Wednesday, nor the intervening Thursday or Friday is a legal holiday listed in s. 230.35 (4) (a), Stats.

ERC 93.02 History History: Cr. Register, March, 1980, No. 291, eff. 4-1-80; renum. from PC 2.01 and am., Register, August, 1987, No. 380, eff. 9-1-87.

ERC 93.03 ERC 93.03 Discovery. All parties to a case before the commission may obtain discovery and preserve testimony as provided by ch. 804, Stats. For good cause, the commission or the hearing examiner may allow a shorter or longer time for discovery or for preserving testimony than is allowed by ch. 804, Stats. For good cause, the commission or the hearing examiner may issue orders to protect persons or parties from annoyance, embarrassment, oppression or undue burden or expense, or to compel discovery.

ERC 93.03 History History: Cr. Register, March, 1980, No. 291, eff. 4-1-80; r. and recr. Register, August, 1987, No. 380, eff. 9-1-87.

ERC 93.04 ERC 93.04 Ex parte communications. As provided in s. 227.50, Stats., ex parte communications to the commission or to the hearing examiner are prohibited.

ERC 93.04 History History: Cr. Register, March, 1980, No. 291, eff. 4-1-80; r. and recr. Register, August, 1987, No. 380, eff. 9-1-87.

ERC 93.05 ERC 93.05 Attendance of witnesses.

ERC 93.05(1) (1) Requests to appear. At the request of any party or on its own motion, a commissioner or the hearing examiner may issue letters to state employees requiring them to appear and to testify at a hearing unless it is determined that their testimony will be irrelevant, immaterial or unduly repetitious. The commission shall mail the letters to the prospective witness unless the party requesting the letter asks to be responsible for personally serving the letters.

ERC 93.05(2) (2) Subpoenas.

ERC 93.05(2)(a) (a) Issuance. Subpoenas, including subpoenas to compel the attendance of witnesses and subpoenas requiring the production of material, may be issued by a commissioner or the hearing examiner at the request of a party or on the commission’s own motion, or may be issued by an attorney of record in a commission proceeding in the same manner as provided in s. 805.07, Stats. The commissioner or hearing examiner may review the reasonableness of any request before issuing a subpoena.

ERC 93.05(2)(b) (b) Service. The party issuing or requesting a subpoena is responsible for service of the subpoena and for any costs related to service.

ERC 93.05(3) (3) Witness fees.

ERC 93.05(3)(a) (a) State civil service employees. State civil service employees who attend hearings as witnesses are entitled to that compensation specified in s. ERC 91.13 (2).

ERC 93.05(3)(b) (b) Persons subpoenaed. Any person not under the state civil service who appears before the commission by order are entitled to receive fees and mileage as provided in s. 230.44 (4) (b), Stats.

ERC 93.05 Note Note: The computation of witness fees under par. (b) is governed by s. 814.67 (1) (b) and (c), Stats.

ERC 93.05 History History: Cr. Register, March, 1980, No. 291, eff. 4-1-80; r. and recr. Register, August, 1987, No. 380, eff. 9-1-87; am. (3), Register, May, 1996, No. 485, eff. 6-1-96; correction in (3) (a) made under s. 13.92 (4) (b) 7., Stats., Register December 2014 No. 708.