[Code of Federal Regulations]
[Title 15, Volume 3]
[Revised as of January 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 15CFR904.240]

[Page 51-52]
 
                  TITLE 15--COMMERCE AND FOREIGN TRADE
 
CHAPTER IX--NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT 
                               OF COMMERCE
 
PART 904_CIVIL PROCEDURES--Table of Contents
 
                 Subpart C_Hearing and Appeal Procedures
 
Sec. 904.240  Discovery generally.

    (a) Preliminary position on issues and procedures. Prior to hearing 
the Judge will ordinarily require from the parties a written submission 
stating their preliminary positions on legal and factual issues and 
procedures, listing potential witnesses and summarizing their testimony, 
and listing exhibits. Except for information regarding a respondent's 
ability to pay an assessed penalty, this document, which must be served 
on all other parties, will normally obviate the need for further 
discovery. Failure to provide the requested information may result in 
the exclusion of witnesses and/or exhibits at the hearing. See also 
Sec. 904.212. A party has the affirmative obligation to supplement the 
submission as new information becomes known to the party.
    (b) Additional discovery. Upon written motion by a party, the Judge 
may allow additional discovery only upon a showing of relevance, need, 
and reasonable scope of the evidence sought, by one or more of the 
following methods: deposition upon oral examination or written 
questions, written interrogatories, production of documents or things 
for inspection and other purposes, and requests for admission. With 
respect to information regarding a respondent's ability to pay an 
assessed penalty, the Agency may serve any discovery request (i.e., 
deposition, interrogatories, admissions, production of documents) 
directly upon the respondent without first seeking an order from the 
Judge.
    (c) Time limits. Motions for depositions, interrogatories, 
admissions, or production of documents or things may not be filed within 
20 days of hearing except on order of the Judge for good cause shown. 
Oppositions to a discovery motion must be filed within 10 days of 
service unless otherwise provided in these rules or by the Judge.
    (d) Oppositions. Oppositions to any discovery motion or portion 
thereof must state with particularity the grounds relied upon. Failure 
to object in a timely fashion constitutes waiver of the objection.
    (e) Scope of discovery. The Judge may limit the scope, subject 
matter, method, time, or place of discovery. Unless otherwise limited by 
order of the Judge, the scope of discovery is as follows:
    (1) In general. As allowed under paragraph (b) of this section, 
parties may obtain discovery of any matter, not privileged, that is 
relevant to the allegations of the charging document, to the proposed 
relief, or to the defenses of any respondent, or that appears reasonably 
calculated to lead to the discovery of admissible evidence.
    (2) Hearing preparation: Materials. A party may not obtain discovery 
of materials prepared in anticipation of litigation except upon a 
showing that the party seeking discovery has a substantial need for the 
materials in preparation of his or her case, and is unable without undue 
hardship to obtain the substantial equivalent of the materials by other 
means. Mental impressions, conclusions, opinions, or legal theories of 
an attorney or other representative of a party are not discoverable 
under this section.
    (3) Hearing preparation: Experts. A party may discover the substance 
of the facts and opinions to which an expert witness is expected to 
testify and a summary of the grounds for each opinion. A party may also 
discover facts known or opinions held by an expert consulted by another 
party in anticipation of litigation but not expected to be called as a 
witness upon a showing of exceptional circumstances making it 
impracticable for the party seeking discovery to obtain such facts or 
opinions by other means.
    (f) Failure to comply. If a party fails to comply with any subpoena 
or order concerning discovery, the Judge may, in the interest of 
justice:
    (1) Infer that the admission, testimony, documents, or other 
evidence would have been adverse to the party;
    (2) Rule that the matter or matters covered by the order or subpoena 
are established adversely to the party;
    (3) Rule that the party may not introduce into evidence or otherwise 
rely upon, in support of any claim or defense, testimony by such party, 
officer, or agent, or the documents or other evidence;
    (4) Rule that the party may not be heard to object to introduction 
and use

[[Page 52]]

of secondary evidence to show what the withheld admission, testimony, 
documents, or other evidence would have shown;
    (5) Strike part or all of a pleading (except a request for hearing), 
a motion or other submission by the party, concerning the matter or 
matters covered by the order or subpoena.

[52 FR 10325, Mar. 31, 1987, as amended at 58 FR 58486, Nov. 2, 1993; 61 
FR 54731, Oct. 22, 1996]