Section 442-12-009 - Discovery From a Nonparty Without a Deposition (Rule 34A)009.01 Procedure 009.01A Scope. Any party may, by subpoena without a deposition:009.01A1 require the production for inspection, copying, testing or sampling of designated books, papers, documents, tangible things, or electronically stored information (including writings, drawings, graphs, charts, photographs, sound recordings, and other data compilations from which information can be obtained) translated if necessary by the owner or custodian into reasonably usable form) that are in the possession, custody, or control of a person who is not a party and within the scope of subsection 001.02; or009.01A2 obtain entry upon designated land or other property within the scope of subsection 001.02 that is in the possession or control of a person who is not a party for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon.009.01B Notice. A party intending to serve a subpoena pursuant to this rule shall give notice in writing to every other party to the petition or appeal at least 10 days before the subpoena will be issued. The notice shall state the name and address of the person who will be subpoenaed, the time and place for production or entry, and that the subpoena will be issued on or after a stated date. A designation of the materials sought to be produced shall be attached to or included in the notice. Such notice may be given by a party other than a petitioner or appellant at any time. Such notice may not be given by a petitioner or appellant until the time at which subsection 004.01 would permit a petitioner or appellant to take a deposition.
009.01C Issuance. A subpoena may be issued pursuant to this rule by a request to the chairperson of the Commission, at any time after all parties have been given the notice required by subsection 009.01B. The subpoena shall identify all parties who were given notice that it would be issued and the date upon which each of them was given notice. A subpoena pursuant to this rule shall include or be accompanied by a copy of this rule.009.01D Time, manner, and return of service. A subpoena pursuant to this rule shall be served either personally by any person not interested in the petition or appeal or by registered or certified mail not less than 10 days before the time specified for compliance. The person making personal service shall make a return showing the manner of service to the party for whom the subpoena was issued.009.02 Protection of Other Parties 009.02A Objection Before Issued. Before the subpoena is requested or issued any party may serve a written objection on the party who gave notice that it would be issued. The objection shall specifically identify any intended production or entry that is protected by an applicable privilege, that is not within the scope of discovery, or that would be unreasonably intrusive or oppressive to the party. No subpoena shall demand production of any material or entry upon any premises identified in the objection. If the objection specifically objects that the person served with the subpoena should not have the option to deliver or mail copies of documents or things directly to a party, the subpoena shall not be issued unless all parties to the petition or appeal mutually agree on the method for delivery of the copies.009.02B Order. The party who gave notice that a subpoena would be issued may apply to the Commission for an order with respect to any discovery for which another party has served a written objection. Upon hearing after notice to all parties the Commission may order that the subpoena be issued or not issued or that discovery proceed in a different manner, may enter any protective order authorized by subsection 001.03, and may award expenses as authorized by subsection 011.01C.009.02C Protective Order. After a subpoena has been issued any party may move for a protective order under subsection 001.03.009.03 Protection of the Person Served with a Subpoena 009.03A Avoiding Burden and Expense. A party or legal counsel who obtains discovery pursuant to this rule shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The Commission shall enforce this duty and impose upon the party or legal counsel in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings of the person subject to the subpoena.009.03B Responding to the Subpoena. 009.03B1 A person served with a subpoena pursuant to this rule shall permit inspection, copying, testing, or sampling either where the documents or tangible things are regularly kept or at some other reasonable place designated by that person. If the subpoena states that the person served has an option to deliver or mail legible copies of documents or things instead of inspection, that person may condition the preparation of the copies on the advance payment of the reasonable cost of copying.009.03B2 A person served with a subpoena pursuant to this rule may, within 10 days after service of the subpoena, serve upon the party for whom the subpoena was issued a written objection to production of any or all of the designated materials or entry upon the premises. If objection is made, the party for whom the subpoena was issued shall not be entitled to production of the materials or entry upon the premises except pursuant to an order of the Commission. If an objection has been made, the party for whom the subpoena was issued may, upon notice to all other parties and the person served with the subpoena, move the Commission for an order to compel compliance with the subpoena. Such an order to compel production or to permit entry shall protect any person who is not a party or an officer of a party from significant expense resulting from complying with the command.442 Neb. Admin. Code, ch. 12, § 009