[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: 18CFR385.410]

[Page 901-902]
 
           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. 385.410  Objections to discovery, motions to quash or to compel, and protective orders (Rule 410).

    (a) Objection to discovery--(1) Notice of objections or motion to 
quash. A participant, or a recipient of a subpoena, who does not intend 
to comply with a discovery request must notify in writing the 
participant seeking discovery within a reasonable time in advance of the 
date on which a response or other action in conformance with the 
discovery request is due. A recipient of a subpoena may either provide a 
notice of objection or file a motion to quash.
    (2) Objections to production of documents. (i) Unless an objection 
to discovery under this section is based on the ground that production 
would impose an undue burden, the objecting participant must provide the 
participant seeking discovery with a schedule of items withheld and a 
statement of:
    (A) The character and specific subject matter of each item; and
    (B) The specific objection asserted for each item.
    (ii) If an objection under this section is based on the ground that 
production of the requested material would impose an undue burden, the 
objecting participant must provide the participant seeking discovery 
with a description of the approximate number of documents that would 
have to be produced and a summary of the information contained in such 
documents.
    (3) Objections to other discovery requests. If the discovery to 
which objection is made is not a request for documents, the objection 
must clearly state the grounds on which the participant bases its 
objection.
    (4) Objections to compile or process information. The fact that 
information has not been compiled or processed in the form requested is 
not a basis for objection unless the objection presents grounds for 
limiting discovery under paragraph (c) of this section.
    (b) Motions to compel. Any participant seeking discovery may file a 
motion to compel discovery, if:
    (1) A participant to whom a data request is made or upon whom an 
interrogatory is served under Rule 406 fails or refuses to make a full, 
complete, and accurate response;
    (2) A person named in a notice of intent to take a deposition or a 
subpoena fails or refuses to appear for the deposition;
    (3) An organization named in a notice of intent to take a deposition 
fails or refuses to designate one or more persons to testify on its 
behalf under Rule 404(b)(3);
    (4) A deponent fails or refuses to answer fully, completely, and 
accurately a question propounded or to sign the transcript of the 
testimony as required by Rule 404(f)(2);
    (5) A participant upon whom a request for admissions is served fails 
or refuses to respond to the request in accordance with Rule 408(b); or
    (6) A participant upon whom an order to produce or to permit 
inspection or entry is served under Rule 407 fails or refuses to comply 
with that order.
    (c) Orders limiting discovery. A presiding officer may, by order, 
deny or limit discovery or restrict public disclosure of discoverable 
matter in order to:
    (1) Protect a participant or other person from undue annoyance, 
burden, harassment or oppression;
    (2) Prevent undue delay in the proceeding;
    (3) Preserve a privilege of a participant, person, or governmental 
agency;

[[Page 902]]

    (4) Prevent a participant from requiring another participant to 
provide information which is readily available to the requesting 
participant from other sources with a reasonable expenditure of effort 
given the requesting participant's position and resources;
    (5) Prevent unreasonably cumulative or duplicative discovery 
requests; or
    (6) Provide a means by which confidential matters may be made 
available to participants so as to prevent public disclosure. Material 
submitted under a protective order may nevertheless be subject to 
Freedom of Information Act requests and review.
    (d) Privilege--(1) In general. (i) In the absence of controlling 
Commission precedent, privileges will be determined in accordance with 
decisions of the Federal courts with due consideration to the 
Commission's need to obtain information necessary to discharge its 
regulatory responsibilities.
    (ii) A presiding officer may not quash a subpoena or otherwise deny 
or limit discovery on the ground of privilege unless the presiding 
officer expressly finds that the privilege claimed is applicable. If a 
presiding officer finds that a qualified privilege has been established, 
the participant seeking discovery must make a showing sufficient to 
warrant discovery despite the qualified privilege.
    (iii) A presiding officer may issue a protective order under Rule 
410(c) to deny or limit discovery in order to preserve a privilege of a 
participant, person, or governmental agency.
    (2) Of the Commission. (i) If discovery under this subpart would 
require the production of Commission information, documents, or other 
matter that might fall within a privilege, the Commission trial staff 
must identify in writing the applicable privilege along with the matters 
claimed to be privileged or the individuals from whom privileged 
information is sought, to the presiding officer and the parties.
    (ii) If the presiding officer determines that the privilege claimed 
for the Commission is applicable, the Commission information, documents, 
or other matter may not be produced. If the presiding officer determines 
that no privilege is applicable, that a privilege is waived, or that a 
qualified privilege is overcome, the presiding officer will certify the 
matter to the Commission in accordance with Rule 714. Certification to 
the Commission under this paragraph must describe the material to be 
disclosed and the reasons which, in the presiding officer's view, 
justify disclosure. The information will not be disclosed unless the 
Commission affirmatively orders the material disclosed.

[Order 225, 47 FR 19022, May 3, 1982, as amended by Order 466-A, 52 FR 
35910, Sept. 24, 1987]