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Witnesses and Evidence

In the process of its power to investigate, an administrative agency may call upon any person as a ‘witness’.  It is not necessary that a witness should be a person subject to regulations of the agency.  Even a person who is not subject to the agency regulation may be called as a witness for the purpose of investigation.

The administrative agency can issue subpoena to a person residing anywhere in the U.S.; and also to a person who is residing outside the U.S.  This power of issuing subpoena for production of evidence within the U.S. should be used reasonably.

When a person is compelled to travel a long distance in compliance of a subpoena, it is found to be unreasonable.  When it becomes unreasonable, courts may deny the enforcement of such subpoena[i].  If an agency can get information by any other method, without disturbing the person who has to travel a long distance, or there exists other methods to settle the dispute, an investigating agency may avoid issuing subpoena, as the same would be only improper and unreasonable.

In deciding whether to issue a subpoena directing production of document or information located abroad and in framing such an order, a U.S. Court should take into account:

  • The importance of the information requested;
  • The availability or alternative means of securing the information;
  • The degree of specificity of the request;
  • Whether the information originated in the U.S.;
  • The extent to which the non-compliance would  result;
  • The extent and nature of the hardship imposed by the enforcement actions;
  • The extent to which the compliance or non-compliance would undermine the important interests of the U.S.

[i]      People v. McWhorter, 113 Ill. 2d 374

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