[Code of Federal Regulations]
[Title 16, Volume 1]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 16CFR3.38]

[Page 65-66]
 
                     TITLE 16--COMMERCIAL PRACTICES
 
                   CHAPTER I--FEDERAL TRADE COMMISSION
 
PART 3_RULES OF PRACTICE FOR ADJUDICATIVE PROCEEDINGS--Table of Contents
 
                 Subpart D_Discovery; Compulsory Process
 
Sec. 3.38  Motion for order compelling disclosure or discovery; 
sanctions.

    (a) Motion for order to compel. A party may apply by motion to the 
Administrative Law Judge for an order compelling disclosure or 
discovery, including a determination of the sufficiency of the answers 
or objections with respect to the initial disclosures required by Sec. 
3.31(b), a request for admission under Sec. 3.32, a deposition under 
Sec. 3.33, or an interrogatory under Sec. 3.35.
    (1) Initial disclosures; requests for admission; depositions; 
interrogatories. Unless the objecting party sustains its burden of 
showing that the objection is justified, the Administrative Law Judge 
shall order that an answer be served or disclosure otherwise be made. If 
the Administrative Law Judge determines that an answer or other response 
by the objecting party does not comply with the requirements of these 
rules, he may order either that the matter is admitted or that an 
amended answer or response be served. The Administrative Law Judge may, 
in lieu of these orders, determine that final disposition may be made at 
a prehearing conference or at a designated time prior to trial.
    (2) Requests for production or access. If a party fails to respond 
to or comply as requested with a request for production or access made 
under Sec. 3.37(a), the discovering party may move for an order to 
compel production or access in accordance with the request.
    (b) If a party or an officer or agent of a party fails to comply 
with a subpoena or with an order including, but not limited to, an order 
for the taking of a deposition, the production of documents, or the 
answering of interrogatories, or requests for admissions, or an order of 
the Administrative Law Judge or the Commission issued as, or in 
accordance with, a ruling upon a motion concerning such an order or 
subpoena or upon an appeal from such a ruling, the Administrative Law 
Judge or the Commission, or both, for the purpose of permitting 
resolution of relevant issues and disposition of the proceeding without 
unnecessary delay despite such failure, may take such action in regard 
thereto as is just, including but not limited to the following:
    (1) Infer that the admission, testimony, documents or other evidence 
would have been adverse to the party;
    (2) Rule that for the purposes of the proceeding the matter or 
matters concerning which the order or subpoena was issued be taken as 
established adversely to the party;
    (3) Rule that the party may not introduce into evidence or otherwise 
rely, in support of any claim or defense, upon 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 of secondary evidence to show what the

[[Page 66]]

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 party, concerning which the order or subpoena 
was issued, be stricken, or that a decision of the proceeding be 
rendered against the party, or both.
    (c) Any such action may be taken by written or oral order issued in 
the course of the proceeding or by inclusion in an initial decision of 
the Administrative Law Judge or an order or opinion of the Commission. 
It shall be the duty of parties to seek and Administrative Law Judges to 
grant such of the foregoing means of relief or other appropriate relief 
as may be sufficient to compensate for withheld testimony, documents, or 
other evidence. If in the Administrative Law Judge's opinion such relief 
would not be sufficient, or in instances where a nonparty fails to 
comply with a subpoena or order, he shall certify to the Commission a 
request that court enforcement of the subpoena or order be sought.

[43 FR 56867, Dec. 4, 1978, as amended at 50 FR 53305, Dec. 31, 1985; 61 
FR 50649, Sept. 26, 1996]