Section 710IAC4-12-10. Evidence

   (a) All witnesses at a hearing for the purpose of taking evidence shall testify under oath or affirmation, which shall be administered by the commissioner or other representative of the division conducting the hearing. Every party shall have the right to present the oral or documentary evidence and to conduct the cross-examination as may be required for a full and true disclosure of the facts. The hearing officer shall:

(1) receive relevant and material evidence;

(2) rule upon offers of proof; and

(3) exclude all:

(A) irrelevant;

(B) immaterial; or

(C) unduly repetitious;

evidence.

  (b) The commissioner, in connection with any hearing, shall issue subpoenas requiring the attendance and testimony of witnesses and subpoenas requiring the production of documentary or other tangible evidence at any designated place of hearing upon request therefor by any party.

(1) Where it appears to the commissioner the subpoena sought may be:

(A) unreasonable;

(B) oppressive;

(C) excessive in scope; or

(D) unduly burdensome;

he or she may, in his or her discretion, as a condition precedent to the issuance of the subpoena, require the person seeking the subpoena to show the general relevance and reasonable scope of the testimony or other evidence sought.

(2) In the event the commissioner shall, after consideration of all the circumstances, determine that the subpoena or any of its terms are:

(A) unreasonable;

(B) oppressive;

(C) excessive in scope; or

(D) unduly burdensome;

he or she may refuse to issue the subpoena or he or she may issue it only upon conditions as fairness requires.

(3) In making the foregoing determination, where he or she can do so without undue inconvenience to the participants in the proceeding, the commissioner may inquire of the other participants whether they will concede the facts sought to be proved, but in this connection, except with permission of the person seeking the subpoena, he or she shall not disclose the identity of the person sought to be subpoenaed.

  (c) Any person to whom a subpoena is directed may, prior to the time specified therein for compliance, but in no event more than five (5) days after the date of service of the subpoena, apply to the commissioner to quash or modify the subpoena, accompanying the application with a brief statement of the reasons therefor. The commissioner may deny the application summarily or after notice to the person upon whose request the subpoena was issued and opportunity for reply he or she may:

(1) deny the application;

(2) quash or modify the subpoena; or

(3) condition denial of the application to quash or modify the subpoena upon just and reasonable conditions, including, in the case of a subpoena duces tecum, a requirement that the person in whose behalf the subpoena was issued shall advance the reasonable cost of transporting the documentary or other tangible evidence to the designated place of hearing.

  (d) Service of subpoena upon a person named therein shall be made by delivering a copy of the subpoena to the person and by tendering the fees for one (1) day's attendance and the mileage as specified by subsection (e). When the subpoena is issued at the instance of the division, fees and mileage need not be tendered at the time of service.

(1) Whenever service is to be made upon a person who is represented in the pending proceeding by an attorney, the service may be made upon the attorney. Delivery of a copy of a subpoena and tender of the fees to a natural person may be made by:

(A) handing them to the person;

(B) leaving them at his or her office with the person in charge;

(C) if there is no one in charge at his or her office, leaving them in a conspicuous place;

(D) leaving them at his or her dwelling place or usual place of abode with some person of suitable age and discretion residing there;

(E) mailing them by registered or certified mail to the person at the last known address; or

(F) any method whereby actual notice is given to the person and the fees are made available prior to the return date.

(2) When the person to be served is not a natural person, delivery of a copy of the subpoena and the tender of the fees may be effected by:

(A) handing them to a registered agent for service or to any officer, director, or agent in charge of any office of the person;

(B) mailing them by registered or certified mail to the representative at his or her last known address; or

(C) any method whereby actual notice is given to the representative and the fees are made available prior to the return date.

  (e) Witnesses summoned before the commissioner shall be paid the same fees and mileage that are paid to witnesses in civil cases in the courts of the state of Indiana, and witnesses whose depositions are taken and the persons taking the same shall severally be entitled to the same fees as are paid for like services in the courts of the state of Indiana. Witness fees and mileage shall be paid by the party at whose instance the witnesses appear.

  (f) In any proceeding, official notice may be taken of any:

(1) material fact that might be judicially noticed by a court of the state of Indiana;

(2) matter in the public official records of the commissioner; or

(3) matter that is peculiarly within the knowledge of the commissioner.

If official notice is requested or taken of a material fact not appearing in the evidence in the record, the parties, upon timely request, shall be afforded an opportunity to establish the contrary. (Securities Division; 710 IAC 4-12-10; filed Jun 28, 2010, 2:36 p.m.: 20100728-IR-710100044FRA; readopted filed May 12, 2016, 1:47 p.m.: 20160608-IR-710160136RFA)