[Code of Federal Regulations]
[Title 17, Volume 1]
[Revised as of April 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 17CFR12.34]

[Page 285-286]
 
              TITLE 17--COMMODITY AND SECURITIES EXCHANGES
 
             CHAPTER I--COMMODITY FUTURES TRADING COMMISSION
 
PART 12_RULES RELATING TO REPARATIONS--Table of Contents
 
                           Subpart B_Discovery
 
Sec.  12.34  Discovery by a decisionmaking official.

    (a) Applicability. The provisions of this rule apply only to summary 
decisional proceedings and formal decisional proceedings commenced 
pursuant to Sec.  12.26 (b) and (c). This rule does not apply to a 
voluntary decisional proceeding commenced pursuant to Sec.  12.26(a). 
For the purposes of this rule, the term ``decisionmaking official'' 
shall mean a Judgment Officer or Administrative Law Judge assigned to 
render a decision in the proceeding.
    (b) Production of documents and tangible things--(1) Order for 
production. A decisionmaking official may, upon his own motion, order a 
party or non-party to produce copies of specifically designated 
documents, papers, books, accounts, or tangible things (or categories of 
any of the foregoing) which are in the possession, custody or control of 
the party, non-party or agent thereof, against whom the order is 
directed. Except as provided in paragraph (b)(2) of this section, a 
party or non-party ordered to produce documents or any of the above 
items under this rule shall file and serve the documents and items 
listed in the order within twenty (20) days from the date of service of 
the order, or within such period of time as the decisionmaking official 
may direct. The decisionmaking official may issue subpoenas to compel 
the production by parties or non-parties of such documents and tangible 
things as are described in this section.
    (2) Trade secrets, commercially sensitive or confidential 
information. If any party or person against whom an order to produce has 
been directed acting in good faith has reason to believe that any 
documents or other tangible thing ordered to be produced contains a 
trade secret, or commercially sensitive or other confidential 
information, the party or person may, in lieu of serving any such 
document, in accordance with paragraph (b)(1) of this section, file and 
serve a written request for confidential treatment of such documents. 
Any such request for confidential treatment shall be accompanied by a 
verified statement identifying with particularity the information on 
those documents considered to be trade secrets, commercially sensitive 
or confidential information, with reasons therefor, and indicating which 
portions, if any, of those documents may be served on other parties 
without disclosure of such information. Upon considering a request for 
confidential treatment in accordance with this subsection, the 
decisionmaking official may, if he finds that the information identified 
in the request warrants confidential treatment and is not probative of 
any material fact in controversy, make copies of the documents produced, 
delete such information from the copies, and serve the copies as 
modified upon the other parties, with or without an appropriate 
protective order limiting dissemination to the parties and their 
counsel, if any.
    (3) Inability to produce. Any party or person who cannot produce 
documents or other tangible things called for in an order for 
production, because those documents or things are not in his possession, 
custody or control, shall file and serve within the time provided in 
paragraph (b)(1) of this section a verified statement identifying the 
documents which cannot be produced and setting forth with particularity 
the reasons for non-production.
    (c) Order for written testimony. The decisionmaking official may, 
upon his own motion, order a party or non-party witness to submit 
verified statements or written responses to interrogatories, or both, as 
to all relevant matters within the party's personal knowledge which are 
required in response to the

[[Page 286]]

order. A party or person ordered to file affidavits and/or verified 
written responses to interrogatories shall file and serve the documents 
within such period of time as the decisionmaking official may direct. 
The official may issue subpoenas to compel the filing by parties or non-
parties of such verified statements and written responses as are 
described in this subsection.