[Code of Federal Regulations]
[Title 18, Volume 1]
[Revised as of April 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 18CFR385.402]

[Page 896]
 
           TITLE 18--CONSERVATION OF POWER AND WATER RESOURCES
 
  CHAPTER I--FEDERAL ENERGY REGULATORY COMMISSION, DEPARTMENT OF ENERGY
 
PART 385--RULES OF PRACTICE AND PROCEDURE--Table of Contents
 
   Subpart D--Discovery Procedures for Matters Set for Hearing Under 
                                Subpart E
 
Sec. 385.402  Scope of discovery (Rule 402).

    (a) General. Unless otherwise provided under paragraphs (b) and (c) 
of this section or ordered by the presiding officer under Rule 410(c), 
participants may obtain discovery of any matter, not privileged, that is 
relevant to the subject matter of the pending proceeding, including the 
existence, description, nature, custody, condition, and location of any 
books, documents, or other tangible things, and the identity and 
location of persons having any knowledge of any discoverable matter. It 
is not ground for objection that the information sought will be 
inadmissible in the Commission proceeding if the information sought 
appears reasonably calculated to lead to the discovery of admissible 
evidence.
    (b) Material prepared for litigation. A participant may not obtain 
discovery of material prepared in anticipation of litigation by another 
participant, unless that participant demonstrates a substantial need for 
the material and that substantially equivalent material cannot be 
obtained by other means without undue hardship. In ordering any such 
discovery, the presiding officer will prevent disclosure of the mental 
impressions, conclusions, opinions, or legal theories of an attorney.
    (c) Expert testimony. Unless otherwise restricted by the presiding 
officer under Rule 410(c), a participant may discover any facts known or 
opinions held by an expert concerning any relevant matters, not 
privileged. Such discovery will be permitted only if:
    (1) The expert is expected to be a witness at hearing; or
    (2) The expert is relied on by another expert who is expected to be 
a witness at hearing, and the participant seeking discovery shows a 
compelling need for the information and it cannot practicably be 
obtained by other means.

[Order 225, 47 FR 19022, May 3, 1982, as amended by Order 466-A, 52 FR 
35909, Sept. 24, 1987]