[Code of Federal Regulations]
[Title 28, Volume 2]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 28CFR68.23]

[Page 227-228]
 
                    TITLE 28--JUDICIAL ADMINISTRATION
 
              CHAPTER I--DEPARTMENT OF JUSTICE (Continued)
 
 PART 68--RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE ADMINISTRATIVE LAW JUDGES IN CASES INVOLVING ALLEGATIONS OF UNLAWFUL EMPLOYMENT OF 
ALIENS, UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES, AND DOCUMENT FRAUD--Table of Contents
 
Sec. 68.23  Motion to compel response to discovery; sanctions.

    (a) If a deponent fails to answer a question asked, or a party upon 
whom a discovery request is made pursuant to Secs. 68.18 through 68.22 
fails to respond adequately or objects to the request or to any part 
thereof, or fails to permit inspection as requested, the discovering 
party may move the Administrative Law Judge for an order compelling a 
response or inspection in accordance with the request. A party who has 
taken a deposition or has requested admissions or has served 
interrogatories may move to determine the sufficiency of the answers or 
objections thereto. Unless the objecting party sustains his or her 
burden of showing that the objection is justified, the Administrative 
Law Judge may order that an answer be served. If the Administrative Law 
Judge determines that an answer does not comply with the requirements of 
the rules in this part, he or she may order either that the matter is 
admitted or that an amended answer be served.
    (b) The motion shall set forth and include:
    (1) The nature of the questions or request;
    (2) The response or objections of the party upon whom the request 
was served;
    (3) Arguments in support of the motion; and
    (4) A certification that the movant has in good faith conferred or 
attempted to confer with the person or party failing to make the 
discovery in an effort to secure information or material without action 
by the Administrative Law Judge.
    (c) If a party, an officer or an agent of a party, or a witness, 
fails to comply with an order, including, but not limited to, an order 
for the taking of a deposition, the production of documents, the 
answering of interrogatories, a response to a request for admissions, or 
any other order of the Administrative Law Judge, the Administrative Law 
Judge may, for the purposes of permitting resolution of the relevant 
issues and disposition of the proceeding and to avoid unnecessary delay, 
take the following actions:
    (1) Infer and conclude that the admission, testimony, documents, or 
other evidence would have been adverse to the non-complying party;
    (2) Rule that for the purposes of the proceeding the matter or 
matters concerning which the order was issued be taken as established 
adversely to the non-complying party;

[[Page 228]]

    (3) Rule that the non-complying party may not introduce into 
evidence or otherwise rely upon testimony by such party, officer, or 
agent, or the documents or other evidence, in support of or in 
opposition to any claim or defense;
    (4) Rule that the non-complying party may not be heard to object to 
introduction and use of secondary evidence to show what the withheld 
admission, testimony, documents, or other evidence would have shown;
    (5) Rule that a pleading, or part of a pleading, or a motion or 
other submission by the non-complying party, concerning which the order 
was issued, be stricken, or that a decision of the proceeding be 
rendered against the non-complying party, or both;
    (6) In the case of failure to comply with a subpoena, the 
Administrative Law Judge may also take the action provided in 
Sec. 68.25(e); and
    (7) In ruling on a motion made pursuant to this section, the 
Administrative Law Judge may make and enter a protective order such as 
he or she is authorized to enter on a motion made pursuant to 
Sec. 68.42.
    (d) Evasive or incomplete response. For the purposes of this 
section, an evasive or incomplete response to discovery may be treated 
as a failure to respond.

[Order No. 2203-99, 64 FR 7076, Feb. 12, 1999]