Subpoena power and discovery

(a) Subpoenas. (1) Before the filing of a petition for discipline, the ODC may compel by subpoena the testimony of witnesses (including the respondent) and the production of pertinent books, papers, and documents for purposes of evaluation or investigation. (2) After the filing of a petition for discipline, the ODC or the respondent may compel by subpoena the testimony of witnesses, or the production of pertinent records, books, papers, and documents, at a deposition or hearing under these Rules. The Clerk of the Supreme Court shall issue such subpoenas as are requested in writing by the respondent. Upon the written request of either the ODC or the respondent to the Administrative Assistant, the Clerk of the Supreme Court shall issue a commission for the issuance of a subpoena where the evidence sought is beyond jurisdictional limits. (3) Subpoenas issued by the ODC or by the Clerk of the Supreme Court shall clearly indicate on their face that the subpoenas are issued in connection with a confidential matter under these Rules. It shall not be regarded as a breach of confidentiality for a person subpoenaed to consult with an attorney. (b) Quashing subpoena. Any attack on the validity of a subpoena so issued shall be heard and determined by the Chair or Vice Chair of the Board. All orders by the Chair or Vice Chair of the Board relating to attacks on the validity of a subpoena are interlocutory and may not be appealed prior to the Board’s submission to the Court of its final report. (c) Enforcement of subpoena. The Court may, upon proper application, enforce the attendance and testimony of any witnesses and the production of any documents subpoenaed. (d) Subpoena pursuant to law of another jurisdiction. Whenever a subpoena is sought in Delaware pursuant to the law of another jurisdiction for use in lawyer discipline or disability proceedings, and where the issuance of the subpoena has been duly approved under the law of the other jurisdiction, the Clerk of the Supreme Court, upon request from the Chair or Vice Chair of the Board, and for good cause, may issue a subpoena as provided in this Rule to compel the attendance of witnesses and production of documents in the county where the witness resides or is employed or elsewhere as agreed by the witness. Service, enforcement, or challenges to this subpoena shall be as provided in these rules. (e) Depositions. The ODC and the respondent may take the deposition of a witness (including the respondent) by subpoena as set forth in Rule 12(a)(2) above. Testimony of a deponent to be presented at a hearing may be taken by deposition or by commission if the witness is not subject to service of subpoena issued by a Delaware tribunal or is unable to attend or testify at a hearing because of age, illness or other compelling reason. A complete record of the testimony so taken shall be made and preserved. (f) Witnesses and fees. Subpoena and witness fees and mileage reimbursements shall be the same as those provided for in the Rules of Civil Procedure for the Superior Court of the State of Delaware. (g) Discovery. Disputes concerning the scope and other aspects of the limited discovery afforded under these Rules shall be heard and determined by the Chair or Vice Chair of the Board, unless a Hearing Panel has been assigned to the matter, in which case such disputes shall be heard and determined by the chair of the Hearing Panel. All discovery orders by the Chair or Vice Chair of the Board or the chair of a Hearing Panel are interlocutory and may not be appealed prior to the Board’s submission to the Court of its final report. As soon as is practicable after a petition for discipline is filed, the ODC shall provide to the respondent access to any exculpatory evidence. (h) Exchange of information. The ODC and the respondent shall exchange names of witnesses and copies of documents to be used by each side in its case in chief 10 business days prior to any hearing, and may supplement those lists thereafter with the approval of the opposing party or the chair of the Hearing Panel. Recorded statements, if any, of all witnesses so designated shall be exchanged at the same time. The exchange may take place by first-class mail to the respondent’s last known address. The Hearing Panel may exclude any evidence offered by a party who fails to comply with this Rule. (i) Duty to respond. Nothing in these Rules shall be deemed to limit the respondent’s obligation to respond at any point in the disciplinary process to a lawful demand for information from the ODC under the Delaware Lawyers’ Rules of Professional Conduct or any subsequent rules or code adopted by the Court in lieu thereof. History. Amended, effective May 14, 2008.