§ 493.4. Subpoena of witnesses and production of records.
(a) Subpoena ad testificandum. Subpoena ad testificandum shall be served as follows:
(1) A subpoena ad testificandum issued in any action involving the Department or the official duties of an employe thereof shall be directed only to an employe who has detailed personal knowledge of the facts about which he is to testify and shall be personally served on the employe.
(2) Personal service of a subpoena ad testificandum may be waived by a Department staff attorney with the consent of the employe to whom it is directed, if circumstances warrant and if the Department and the employe will not be prejudiced by such waiver.
(b) Subpoena duces tecum. Subpoena duces tecum shall be served as follows:
(1) A subpoena duces tecum shall be directed to the custodian of the documents subpoenaed, as follows:
(i) The District Engineer of each Engineering District shall be the custodian of all documents housed in any District or County office under his jurisdiction.
(ii) The Director of each Central Office Bureau shall be the custodian of all documents housed in the Bureau office in Harrisburg.
(iii) The Secretary and each Deputy Secretary shall be the custodians of documents housed in their respective executive offices in Harrisburg.
(2) The custodian shall appoint a responsible employe of the Department to deliver subpoenaed documents and provide any necessary testimony relating to their custody and content.
(3) Service of a subpoena duces tecum may be waived by a Department staff attorney, in consultation with the custodian of the documents, if circumstances warrant and if the Department will not be prejudiced by such waiver.
(c) Serving the subpoena. Subpoenas shall be served at least 48 hours in advance of the time the employe will be required to testify to allow the Department and the employe to make necessary arrangements to cover the employe’s duties in his absence.
(1) The time stated for the employe’s appearance shall be pinpointed as accurately as possible in order to avoid undue disruption of official business.
(2) The witness fee for one day in court, plus roundtrip mileage, must be tendered with the subpoena.
(d) An employe who is served with a subpoena requiring his appearance in court or before any legislative committee, etc., in any action involving the Department or in connection with the employe’s official duties, shall telephone the Chief Counsel, Deputy to the Chief Counsel, Deputy Chief Counsel, or an Assistant Chief Counsel for instructions.
(1) If the production of records is demanded (subpoena duces tecum), the employe shall fully describe the type of records listed in the subpoena so it can be determined whether the records demanded should be produced.
(2) If compliance with a subpoena will adversely affect the performance of official duties or require the production of records that are not available for public disclosure, the Office of the Chief Counsel will move to have the subpoena withdrawn, quashed or modified.
(e) An employe testifying under subpoena is required to testify only to facts within his personal knowledge, and is not required to give his opinion as an expert in his particular field of knowledge. In order to avoid prejudicing the Department’s case, where it is a party, and to maintain the Department’s neutrality in private litigation, statements of opinion are to be avoided wherever possible.
(1) If an employe is questioned as to his opinion by anyone other than an attorney for the Department, he shall respectfully decline to answer on the grounds that he is forbidden to do so by this chapter. If he is, nonetheless, ordered to testify by the person or body conducting the proceeding, he shall do so.
(f) In an appropriate case, the Office of the Chief Counsel will provide legal representation for a subpoenaed employe.
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