[Code of Federal Regulations]

[Title 15, Volume 3]

[Revised as of January 1, 2006]

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

[CITE: 15CFR904.240]



[Page 49-50]

 

                  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.



[[Page 50]]



    (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 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]