[Code of Federal Regulations]
[Title 29, Volume 9]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR2200.52]

[Page 270-273]
 
                             TITLE 29--LABOR
 
      CHAPTER XX--OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
 
PART 2200_RULES OF PROCEDURE--Table of Contents
 
              Subpart D_Prehearing Procedures and Discovery
 
Sec. 2200.52  General provisions governing discovery.

    (a) General--(1) Methods and limitations. In conformity with these 
rules, any party may, without leave of the Commission or Judge, obtain 
discovery by one or more of the following methods:
    (i) Production of documents or things or permission to enter upon 
land or other property for inspection and other purposes (Sec. 
2200.53);
    (ii) Requests for admission to the extent provided in Sec. 2200.54; 
and
    (iii) Interrogatories to the extent provided in Sec. 2200.55.

Discovery is not available under these rules through depositions except 
to the extent provided in Sec. 2200.56. In the absence of a specific 
provision, procedure shall be in accordance with the Federal Rules of 
Civil Procedure.
    (2) Time for discovery. A party may initiate all forms of discovery 
in conformity with these Rules at any time after the filing of the first 
responsive pleading or motion that delays the filing of an answer, such 
as a motion to dismiss. Discovery shall be initiated early enough to 
permit completion of discovery no later than seven days prior to the 
date set for hearing, unless the Judge orders otherwise.
    (3) Service of discovery papers. Every paper relating to discovery 
required to be served on a party shall be served on all parties.
    (b) Scope of discovery. The information or response sought through 
discovery may concern any matter that is not privileged and that is 
relevant to the subject matter involved in the pending case. It is not 
ground for objection that the information or response sought will be 
inadmissible at the hearing, if the information or response appears 
reasonably calculated to lead to discovery of admissible evidence, 
regardless of which party has the burden of proof.
    (c) Limitations. The frequency or extent of the discovery methods 
provided by these rules may be limited by the Commission or Judge if it 
is determined that:
    (1) The discovery sought is unreasonably cumulative or duplicative, 
or is obtainable from some other source that is more convenient, less 
burdensome, or less expensive;
    (2) The party seeking discovery has had ample opportunity to obtain 
the information sought by discovery in the action; or
    (3) The discovery is unduly burdensome or expensive, taking into 
account the needs of the case, limitations on the parties' resources, 
and the importance of the issues in litigation.
    (d) Protective orders. In connection with any discovery procedures 
and where a showing of good cause has been made, the Commission or Judge 
may make any order including, but not limited to, one or more of the 
following:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions,

[[Page 271]]

including a designation of the time or place;
    (3) That the discovery may be had only by a method of discovery 
other than that selected by the party seeking discovery;
    (4) That certain matters not be inquired into, or that the scope of 
the discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except persons 
designated by the Commission or Judge;
    (6) That a deposition after being sealed be opened only by order of 
the Commission or Judge;
    (7) That a trade secret or other confidential research, development, 
or commercial information not be disclosed or be disclosed only in a 
designated way;
    (8) That the parties simultaneously file specified documents or 
information enclosed in sealed envelopes to be opened as directed by the 
Commission or Judge.
    (e) Failure to cooperate; sanctions. A party may apply for an order 
compelling discovery when another party refuses or obstructs discovery. 
For purposes of this paragraph, an evasive or incomplete answer is to be 
treated as a failure to answer. If a Judge enters an order compelling 
discovery and there is a failure to comply with that order, the Judge 
may make such orders with regard to the failure as are just. The orders 
may issue upon the initiative of a Judge, after affording an opportunity 
to show cause why the order should not be entered, or upon the motion of 
a party. The orders may include any sanction stated in Fed.R.Civ.P. 37, 
including the following:
    (1) An order that designated facts shall be taken to be established 
for purposes of the case in accordance with the claim of the party 
obtaining that order;
    (2) An order refusing to permit the disobedient party to support or 
to oppose designated claims or defenses, or prohibiting it from 
introducing designated matters in evidence;
    (3) An order striking out pleadings or parts thereof, or staying 
further proceedings until the order is obeyed; and
    (4) An order dismissing the action or proceeding or any part 
thereof, or rendering a judgment by default against the disobedient 
party.
    (f) Unreasonable delays. None of the discovery procedures set forth 
in these rules shall be used in a manner or at a time which shall delay 
or impede the progress of the case toward hearing status or the hearing 
of the case on the date for which it is scheduled, unless, in the 
interests of justice, the Judge shall order otherwise. Unreasonable 
delays in utilizing discovery procedures may result in termination of 
the party's right to conduct discovery.
    (g) Show cause orders. All show cause orders issued by the 
Commission or Judge under paragraph (e) of this section shall be served 
upon the affected party by certified mail, return receipt requested.
    (h) Supplementation of responses. A party who has responded to a 
request for discovery with a response that was complete when made is 
under no duty to supplement the response to include information 
thereafter acquired, except as follows:
    (1) A party is under a duty seasonably to supplement the response 
with respect to any question directly addressed to (i) The identity and 
location of persons having knowledge of discoverable matters and (ii) 
The identity of each person expected to be called as an expert witness 
at the hearing, the subject matter on which the person is expected to 
testify, and the substance of the person's testimony.
    (2) A party is under a duty seasonably to amend a prior response if 
the party obtains information upon the basis of which (i) The party 
knows that the response was incorrect when made of (ii) The party that 
the response though correct when made is no longer true and the 
circumstances are such that a failure to amend the response is in 
substance a knowing concealment.
    (3) A duty to supplement responses may be imposed by order of the 
court, agreement of the parties, or at any time prior to the hearing 
through new requests for supplementation of prior responses.
    (i) Filing of discovery. Requests for production or inspection under 
Rule 53, requests for admission under Rule 54 and responses thereto, 
interrogatories under Rule 55 and the answers thereto,

[[Page 272]]

and depositions under Rule 56 shall be served upon other counsel or 
parties, but shall not be filed with the Commission or the Judge. The 
party responsible for service of the discovery material shall retain the 
original and become the custodian.
    (j) Relief from discovery requests. If relief is sought under Rules 
41 or 52 (d), (e), or (f) concerning any interrogatories, requests for 
production or inspection, requests for admissions, answers to 
interrogatories, or responses to requests for admissions, copies of the 
portions of the interrogatories, requests, answers, or responses in 
dispute shall be filed with the Judge or Commission contemporaneously 
with any motion filed under Rules 41 or 52 (d), (e), or (f).
    (k) Use at hearing. If interrogatories, requests, answers, 
responses, or depositions are to be used at the hearing or are necessary 
to a prehearing motion which might result in a final order on any claim, 
the portions to be used shall be filed with the Judge or the Commission 
at the outset of the hearing or at the filing of the motion insofar as 
their use can be reasonably anticipated.
    (l) Use on review or appeal. When documentation of discovery not 
previously in the record is needed for review or appeal purposes, upon 
an application and order of the Judge or Commission the necessary 
discovery papers shall be filed with the Executive Secretary of the 
Commission.

[51 FR 32015, Sept. 8, 1986; 52 FR 13832, Apr. 27, 1987, as amended at 
55 FR 22782, June 4, 1990; 57 FR 41686, Sept. 11, 1992]

    Effective Date Note: At 70 FR 22788, May 3, 2005, Sec. 2200.52 was 
amended by revising paragraph (a)(1) and paragraphs (d) through (l), and 
adding a new paragraph (m), effective Aug. 1, 2005. At 70 FR 25652, May 
13, 2005, technical corrections were incorporated. For the convenience 
of the user, the revised text is set forth as follows:

Sec. 2200.52  General provisions governing discovery.

    (a) General. (1) Methods and limitations. In conformity with these 
rules, any party may, without leave of the Commission or Judge, obtain 
discovery by one or more of the following methods:
    (i) Production of documents or things or permission to enter upon 
land or other property for inspection and other purposes (Sec. 
2200.53);
    (ii) Requests for admission to the extent provided in Sec. 2200.54; 
and
    (iii) Interrogatories to the extent provided in Sec. 2200.55. 
Discovery is not available under these rules through depositions except 
to the extent provided in Sec. 2200.56. In the absence of a specific 
provision, procedure shall be in accordance with the Federal Rules of 
Civil Procedure, except that the provisions of Rule 26(a) of the Federal 
Rules of Civil Procedure do not apply to Commission proceedings.

                                * * * * *

    (d) Privilege. (1) Claims of privilege. The initial claim of 
privilege shall specify the privilege claimed and the general nature of 
the material for which the privilege is claimed. In response to an order 
from Judge or the Commission, or in response to a motion to compel, the 
claim shall: Identify the information that would be disclosed; set forth 
the privilege that is claimed; and allege the facts showing that the 
information is privileged. The claim shall be supported by affidavits, 
depositions, or testimony and shall specify the relief sought. The claim 
may be accompanied by a motion for a protective order or by a motion 
that the allegedly privileged information be received and the claim 
ruled upon in camera, that is, with the record and hearing room closed 
to the public, or ex parte, that is, without the participation of 
parties and their representatives. The judge may enter an order and 
impose terms and conditions on his or her examination of the claim as 
justice may require, including an order designed to ensure that the 
allegedly privileged information not be disclosed until after the 
examination is completed.
    (2) Upholding or rejecting claims of privilege. If the Judge upholds 
the claim of privilege, the Judge may order and impose terms and 
conditions as justice may require, including a protective order. If the 
Judge overrules the claim, the person claiming the privilege may obtain 
as of right an order sealing from the public those portions of the 
record containing the allegedly privileged information pending 
interlocutory or final review of the ruling, or final disposition of the 
case, by the Commission. Interlocutory review of such an order shall be 
given priority consideration by the Commission.
    (e) Protective orders. In connection with any discovery procedures 
and where a showing of good cause has been made, the Commission or Judge 
may make any order including, but not limited to, one or more of the 
following:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    (3) That the discovery may be had only by a method of discovery 
other than that selected by the party seeking discovery;

[[Page 273]]

    (4) That certain matters not be inquired into, or that the scope of 
the discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except persons 
designated by the Commission or Judge;
    (6) That a deposition after being sealed be opened only by order of 
the Commission or Judge;
    (7) That a trade secret or other confidential research, development, 
or commercial information not be disclosed or be disclosed only in a 
designated way;
    (8) That the parties simultaneously file specified documents or 
information enclosed in sealed envelopes to be opened as directed by the 
Commission or Judge.
    (f) Failure to cooperate; Sanctions. A party may apply for an order 
compelling discovery when another party refuses or obstructs discovery. 
For purposes of this paragraph, an evasive or incomplete answer is to be 
treated as a failure to answer. If a Judge enters an order compelling 
discovery and there is a failure to comply with that order, the Judge 
may make such orders with regard to the failure as are just. The orders 
may issue upon the initiative of a Judge, after affording an opportunity 
to show cause why the order should not be entered, or upon the motion of 
a party. The orders may include any sanction stated in Federal Rule of 
Civil Procedure 37, including the following:
    (1) An order that designated facts shall be taken to be established 
for purposes of the case in accordance with the claim of the party 
obtaining that order;
    (2) An order refusing to permit the disobedient party to support or 
to oppose designated claims or defenses, or prohibiting it from 
introducing designated matters in evidence;
    (3) An order striking out pleadings or parts thereof, or staying 
further proceedings until the order is obeyed; and
    (4) An order dismissing the action or proceeding or any part 
thereof, or rendering a judgment by default against the disobedient 
party.
    (g) Unreasonable delays. None of the discovery procedures set forth 
in these rules shall be used in a manner or at a time which shall delay 
or impede the progress of the case toward hearing status or the hearing 
of the case on the date for which it is scheduled, unless, in the 
interests of justice, the Judge shall order otherwise. Unreasonable 
delays in utilizing discovery procedures may result in termination of 
the party's right to conduct discovery.
    (h) Show cause orders. All show cause orders issued by the 
Commission or Judge under paragraph (f) of this section shall be served 
upon the affected party by certified mail, return receipt requested.
    (i) Supplementation of responses. A party who has responded to a 
request for discovery with a response that was complete when made is 
under no duty to supplement the response to include information 
thereafter acquired, except as follows:
    (1) A party is under a duty seasonably to supplement the response 
with respect to any question directly addressed to:
    (i) The identity and location of persons having knowledge of 
discoverable matters; and
    (ii) The identity of each person expected to be called as an expert 
witness at the hearing, the subject matter on which the person is 
expected to testify, and the substance of the person's testimony.
    (2) A party is under a duty seasonably to amend a prior response if 
the party obtains information upon the basis of which:
    (i) The party knows that the response was incorrect when made; or
    (ii) The party knows that the response though correct when made is 
no longer true and the circumstances are such that a failure to amend 
theresponse is in substance a knowing concealment.
    (3) A duty to supplement responses may be imposed by order of the 
court, agreement of the parties, or at any time prior to the hearing 
through new requests for supplementation of prior responses.
    (j) Filing of discovery. Requests for production or inspection under 
Sec. 2200.53, requests for admission under Sec. 2200.54 and responses 
thereto, interrogatories under Sec. 2200.55 and the answers thereto, 
and depositions under Sec. 2200.56 shall be served upon other counsel 
or parties, but shall not be filed with the Commission or the Judge. The 
party responsible for service of the discovery material shall retain the 
original and become the custodian.
    (k) Relief from discovery requests. If relief is sought 
underSec. Sec. 2200.101 or 2200.52(e), (f), or (g) concerning any 
interrogatories, requests for production or inspection, requests for 
admissions, answers to interrogatories, or responses to requests for 
admissions, copies of the portions of the interrogatories, requests, 
answers, or responses in disputeshall be filed with the Judge or 
Commission contemporaneously with any motion filed under Sec. Sec. 
2200.101 or 2200.52(e), (f), or (g).
    (l) Use at hearing. If interrogatories, requests, answers, 
responses, or depositions are to be used at the hearing or are necessary 
to a prehearing motion which might result in a final order on any claim, 
the portions to be used shall be filed with the Judge or the Commission 
at the outset of the hearing or at the filing of the motion insofar as 
their use can be reasonably anticipated.
    (m) Use on review or appeal. When documentation of discovery not 
previously in the record is needed for review or appeal purposes, upon 
an application and order of the Judge or Commission the necessary 
discovery papers shall be filed with the Executive Secretary of the 
Commission.

[[Page 274]]