[Code of Federal Regulations]

[Title 31, Volume 3]

[Revised as of July 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 31CFR501.723]



[Page 64-66]

 

                  TITLE 31--MONEY AND FINANCE: TREASURY

 

 CHAPTER V--OFFICE OF FOREIGN ASSETS CONTROL, DEPARTMENT OF THE TREASURY

 

PART 501_REPORTING, PROCEDURES AND PENALTIES REGULATIONS--Table of 

Contents

 

          Subpart D_Trading With the Enemy Act (TWEA) Penalties

 

Sec. 501.723  Prehearing disclosures; methods to discover additional 

matter.



    (a) Initial disclosures. (1) Except to the extent otherwise 

stipulated or directed by order of the Administrative Law Judge, a party 

shall, without awaiting a discovery request, provide to the opposing 

party:

    (i) The name and, if known, the address and telephone number of each 

individual likely to have discoverable information that the disclosing 

party may use to support its claims or defenses, unless solely for 

impeachment of a witness appearing in person or by deposition, 

identifying the subjects of the information; and

    (ii) A copy, or a description by category and location, of all 

documents, data compilations, and tangible things that are in the 

possession, custody, or control of the party and that the disclosing 

party may use to support its claims or defenses, unless solely for 

impeachment of a witness appearing in person or by deposition;

    (2) The disclosures described in paragraph (a)(1)(i) of this section 

shall be made not later than 30 days after the issuance of an Order 

Instituting Proceedings, unless a different time is set by stipulation 

or by order of the Administrative Law Judge.

    (b) Prehearing disclosures.

    (1) In addition to the disclosures required by paragraph (a) of this 

section, a party must provide to the opposing party, and promptly file 

with the Administrative Law Judge, the following information regarding 

the evidence that it may present at hearing for any purpose other than 

solely for impeachment of a witness appearing in person or by 

deposition:

    (i) An outline or narrative summary of its case or defense (the 

Order Instituting Proceedings will usually satisfy this requirement for 

the Director and the answer thereto will usually satisfy this 

requirement for the respondent);

    (ii) The legal theories upon which it will rely;

    (iii) Copies and a list of documents or exhibits that it intends to 

introduce at the hearing; and

    (iv) A list identifying each witness who will testify on its behalf, 

including the witness's name, occupation, address, phone number, and a 

brief summary of the expected testimony.

    (2) Unless otherwise directed by the Administrative Law Judge, the 

disclosures required by paragraph (b)(1) of this section shall be made 

not later than 30 days before the date of the hearing.

    (c) Disclosure of expert testimony. A party who intends to call an 

expert witness shall submit, in addition to the information required by 

paragraph (b)(1)(iv) of this section, a statement of the expert's 

qualifications, a list of other proceedings in which the expert has 

given expert testimony, and a list of publications authored or co-

authored by the expert.

    (d) Form of disclosures. Unless the Administrative Law Judge orders 

otherwise, all disclosures under paragraphs (a) through (c) of this 

section shall be made in writing, signed, and served as provided in 

Sec. 501.705.

    (e) Methods to discover additional matter. Parties may obtain 

discovery by one or more of the following methods: Depositions of 

witnesses upon oral examination or written questions; written 

interrogatories to another party; production of documents or other 

evidence for inspection; and requests for admission. All depositions of 

Federal employees must take place in Washington, DC, at the Department 

of the Treasury or at the location where the Federal employee to be 

deposed performs his or her duties, whichever the Federal employee's 

supervisor or the Office of Chief Counsel shall deem appropriate. All 

depositions shall be held at a date and time agreed by the Office



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of Chief Counsel and the respondent or respondent's representative, and 

for an agreed length of time.

    (f) Discovery scope and limits. Unless otherwise limited by order of 

the Administrative Law Judge in accordance with paragraph (f)(2) of this 

section, the scope of discovery is as follows:

    (1) In general. The availability of information and documents 

through discovery is subject to the assertion of privileges available to 

the parties and witnesses. Privileges available to the Director and the 

Department include exemptions afforded pursuant to the Freedom of 

Information Act (5 U.S.C. 552(b)(1) through (9)) and the Privacy Act (5 

U.S.C. 552a). Parties may obtain discovery regarding any matter, not 

privileged, that is relevant to the merits of the pending action, 

including the existence, description, nature, custody, condition, and 

location of any books, documents, or other tangible things and the 

identity and location of any persons having knowledge of any 

discoverable matter. For good cause, the Administrative Law Judge may 

order discovery of any matter relevant to the subject matter involved in 

the proceeding. Relevant information need not be admissible at the 

hearing if the discovery appears reasonably calculated to lead to the 

discovery of admissible evidence.

    (2) Limitations. The Administrative Law Judge may issue any order 

that justice requires to ensure that discovery requests are not 

unreasonable, oppressive, excessive in scope or unduly burdensome, 

including an order to show cause why a particular discovery request is 

justified upon motion of the objecting party. The frequency or extent of 

use of the discovery methods otherwise permitted under this section may 

be limited by the Administrative Law Judge if he or she determines that:

    (i) The discovery sought is unreasonably cumulative or duplicative, 

or is obtainable from some other source that is more convenient, less 

burdensome, or less expensive;

    (ii) The party seeking discovery has had ample opportunity by 

discovery in the action to obtain the information sought; or

    (iii) The burden or expense of the proposed discovery outweighs its 

likely benefit, taking into account the needs of the hearing, the 

importance of the issues at stake, and the importance of the proposed 

discovery in resolving the issues.

    (3) Interrogatories. Respondent's interrogatories shall be served 

upon the Office of the Chief Counsel not later than 30 days after 

issuance of the Order Instituting Proceedings. The Director's 

interrogatories shall be served by the later of 30 days after the 

receipt of service of respondent's interrogatories or 40 days after 

issuance of the Order Instituting Proceedings if no interrogatories are 

filed by respondent. Parties shall respond to interrogatories not later 

than 30 days after the date interrogatories are received. 

Interrogatories shall be limited to 20 questions only. Each subpart, 

section, or other designation of a part of a question shall be counted 

as one complete question in computing the permitted 20 question total. 

Where more than 20 questions are served upon a party, the receiving 

party may determine which of the 20 questions the receiving party shall 

answer. The limitation on the number of questions in an interrogatory 

may be waived by the Administrative Law Judge.

    (4) Privileged matter. Privileged documents are not discoverable. 

Privileges include, but are not limited to, the attorney-client 

privilege, attorney work-product privilege, any government's or 

government agency's deliberative-process or classified information 

privilege, including materials classified pursuant to Executive Order 

12958 (3 CFR, 1995 Comp., p. 333) and any future Executive orders that 

may be issued relating to the treatment of national security 

information, and all materials and information exempted from release to 

the public pursuant to the Privacy Act (5 U.S.C. 552a) or the Freedom of 

Information Act (5 U.S.C. 552(b)(1) through (9)).

    (g) Updating discovery. A party who has made an initial disclosure 

under paragraph (a) of this section or responded to a request for 

discovery with a disclosure or response is under a duty to supplement or 

correct the disclosure or response to include information thereafter 

acquired whenever:



[[Page 66]]



    (1) The party learns that in some material respect the information 

disclosed is incomplete or incorrect, if the additional or corrective 

information has not otherwise been made known to the other party during 

the discovery process or in writing; or

    (2) Ordered by the Administrative Law Judge. The Administrative Law 

Judge may impose sanctions for failure to supplement or correct 

discovery.

    (h) Time limits. All discovery, including all responses to discovery 

requests, shall be completed not later than 20 days prior to the date 

scheduled for the commencement of the hearing, unless the Administrative 

Law Judge finds on the record that good cause exists to grant additional 

time to complete discovery.

    (i) Effect of failure to comply. No witness may testify and no 

document or exhibit may be introduced at the hearing if such witness, 

document, or exhibit is not listed in the prehearing submissions 

pursuant to paragraphs (b) and (c) of this section, except for good 

cause shown.