[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: 28CFR76.21]

[Page 323-325]
 
                    TITLE 28--JUDICIAL ADMINISTRATION
 
              CHAPTER I--DEPARTMENT OF JUSTICE (Continued)
 
PART 76--RULES OF PROCEDURE FOR ASSESSMENT OF CIVIL PENALTIES FOR POSSESSION OF CERTAIN CONTROLLED SUBSTANCES--Table of Contents
 
Sec. 76.21  Discovery.

    (a) Scope. Discovery under this part covers any matter not otherwise 
privileged or protected by law, which is directly relevant to the issues 
involved in the case, including the existence, description, nature, 
custody, condition, and location of documents or other tangible things, 
and the identity and location of persons having knowledge

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of relevant facts. To the extent not inconsistent with this part, the 
Federal Rules of Civil Procedure may be used as a general guide for 
discovery practices in proceedings before the Judge. However, unless 
otherwise stated in this part, the Federal Rules shall be deemed to be 
instructive rather than controlling.
    (b) Methods. Discovery may be obtained by one or more of the methods 
provided under the Federal Rules of Civil Procedure, including: written 
interrogatories, depositions, requests for production of documents or 
things for inspection or copying, and requests for admission addressed 
to parties.
    (c) Procedures governing discovery--(1) Discovery from a party. A 
party seeking discovery from another party shall initiate the process by 
serving a request for discovery on the other party. The request for 
discovery shall:
    (i) State the time limit for responding, as prescribed in 28 CFR 
76.21(c)(4);
    (ii) In the case of a request for a deposition of a party or an 
employee of a party shall
    (A) Specify the time and place of the taking of the deposition, and
    (B) Be served on the person to be deposed.
    (2) Discovery from a nonparty. Whenever possible, a party seeking a 
deposition and/or production of documents from a nonparty shall attempt 
to obtain the nonparty's voluntary cooperation. A party seeking such 
discovery from a nonparty may initiate such discovery by serving a 
request for discovery on the nonparty directly and by serving the other 
party. Upon failure to obtain voluntary cooperation, discovery from a 
nonparty may be sought by a written motion directed to the Judge in 
accordance with paragraph (c)(3) of this section.
    (3) Discovery motions. (i) A party shall answer a discovery request 
within the time provided by 28 CFR 76.21(c)(4), either by furnishing to 
the requesting party the information or testimony requested, agreeing to 
make deponents available to testify within a reasonable time, or by 
stating an objection to the particular request and the reasons for 
objection. Upon the failure of a party to respond in full to a discovery 
request, the requesting party may file with the Judge a motion to 
compel. A copy of the motion shall be served on the other party. The 
motion shall be accompanied by:
    (A) A copy of the original request and a statement showing the 
relevance and materiality of the information sought; and
    (B) A copy of the objections to discovery or, where appropriate, a 
statement with accompanying affidavit that no response has been 
received.
    (ii) If a nonparty will not voluntarily respond to a discovery 
request in full, the requesting party may file with the Judge a written 
motion seeking a subpoena. A copy of the motion shall be served on the 
other party in accordance with 28 CFR 76.23. The motion shall be 
accompanied by:
    (A) A copy of the original request and a statement showing the 
relevance, materiality and reasonable scope of the information sought;
    (B) A copy of the objections to discovery or, where appropriate, a 
statement with accompanying affidavit that no response has been 
received; and
    (C) In the case of a deposition, the date, time, and place of the 
proposed deposition.
    (iii) The other party may respond to a motion to compel discovery or 
for issuance of a subpoena requiring a deposition or production of 
documents under this section by filing an opposition and/or a motion for 
a protective order in accordance with 28 CFR 76.24 within the time 
limits set forth in paragraph (c)(4)(iv) of this section.
    (4) Time limits. (i) Discovery may be initiated after the filing of 
a complaint and shall be completed within the time designated by the 
Judge, but no later than seventy-five (75) days after the filing of the 
answer, unless a different time limit is set by the Judge after due 
consideration of the particular situation, including the dates set for 
hearing.
    (ii) A party or nonparty shall file and serve a response to a 
discovery request promptly, but not later than twenty (20) days after 
the date of service of the request or order of the Judge.
    (iii) A motion seeking a subpoena for the deposition testimony of a 
nonparty or for the production of documents by a nonparty, or a motion 
for an order

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compelling discovery from a party, shall be filed with the Judge and 
served upon the other party within ten (10) days of the date of service 
of objections, or within ten (10) days of the expiration of the time 
limit for response when no response is received, unless otherwise 
ordered by the Judge.
    (iv) An opposition to a motion to compel, an opposition to a motion 
for an order to depose a nonparty or for the production of documents by 
a nonparty, or a motion for a protective order must be filed with the 
Judge and served upon the other party within ten (10) days of the date 
of service of the motion to which such motion relates.
    (5) Orders for discovery. (i) Any order issued compelling discovery 
shall include, as appropriate:
    (A) Provision for notice to the person to be deposed as to the time 
and place of such deposition;
    (B) Such conditions or limitations concerning the conduct or scope 
of the discovery or the subject matter of the discovery as may be 
necessary to prevent undue delay or to protect a party or other 
individual or entity from undue expense, embarrassment or oppression;
    (C) Limitations upon the time for conducting depositions, answering 
written interrogatories, or producing documentary evidence; and
    (D) Other restrictions upon the discovery process as determined by 
the Judge.
    (ii) The order will be served on the parties by the Judge, together 
with a subpoena, if approved in the case of discovery sought from 
nonparties, directed to the individual or entity from which discovery is 
sought, specifying the manner and time limit for compliance. It shall be 
the responsibility of the party seeking discovery from a nonparty to 
serve or arrange for service of an approved discovery request and 
subpoena on the nonparty from whom discovery is sought and on the other 
party.
    (iii) Failure to comply with an order compelling discovery may 
subject the noncomplying party to sanctions under 28 CFR 76.26.
    (6) Costs. Each party shall bear its own costs of discovery unless 
otherwise agreed by the parties or ordered by the Judge. The party 
seeking the deposition shall provide for a verbatim transcript of the 
description, which shall be available to all parties for inspection and 
copying.