[Code of Federal Regulations]
[Title 16, Volume 1]
[Revised as of January 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 16CFR3.31]

[Page 57-59]
 
                     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. 3.31  General provisions.


    (a) Discovery methods. Parties may obtain discovery by one or more 
of the following methods: Depositions upon oral examination or written 
questions; written interrogatories; production of documents or things 
for inspection and other purposes; and requests for admission. Unless 
the Administrative Law Judge orders otherwise, the frequency or sequence 
of these methods is not limited. The parties shall, to the greatest 
extent practicable, conduct discovery simultaneously; the fact that a 
party is conducting discovery shall not operate to delay any other 
party's discovery.
    (b) Initial disclosures. Complaint counsel and respondent's counsel 
shall, within five (5) days of receipt of a respondent's answer to the 
complaint and without awaiting a discovery request, provide to each 
other:
    (1) The name, and, if known, the address and telephone number of 
each individual likely to have discoverable information relevant to the 
allegations of the Commission's complaint, to the proposed relief, or to 
the defenses of the respondent, as set forth in Sec. 3.31(c)(1);
    (2) A copy of, or a description by category and location of, all 
documents, data compilations, and tangible things in the possession, 
custody, or control of the Commission or respondent(s) that are relevant 
to the allegations of the Commission's complaint, to the proposed 
relief, or to the defenses of the respondent, as set forth in Sec. 
3.31(c)(1); unless such information or materials are privileged as 
defined in Sec. 3.31(c)(2), pertain to hearing preparation as defined 
in Sec. 3.31(c)(3), pertain to experts as defined in Sec. 3.31(c)(4), 
or are obtainable from some other source that is more convenient, less 
burdensome, or less expensive. A party shall make its disclosures based 
on the information then reasonably available to it and is not excused 
from making its disclosures because it has not fully completed its 
investigation.
    (3) In addition to the disclosures required by paragraphs (b)(1) and 
(2), of this section, the parties shall disclose

[[Page 58]]

to each other the identity of any person who may be used at trial to 
present evidence as an expert. Except as otherwise stipulated or 
directed by the Administrative Law Judge, this disclosure shall, with 
respect to a witness who is retained or specially employed to provide 
expert testimony in the case or whose duties as an employee of the party 
regularly involve giving expert testimony, be accompanied by a written 
report prepared and signed by the witness. The report shall contain a 
complete statement of all opinions to be expressed and the basis and 
reasons therefor; the data or other information considered by the 
witness in forming the opinions; any exhibits to be used as a summary of 
or support for the opinions; the qualifications of the witness, 
including a list of all publications authored by the witness within the 
preceding ten years; the compensation to be paid for the study and 
testimony; and a listing of any other cases in which the witness has 
testified as an expert at trial or by deposition within the preceding 
four years. These disclosures shall be made at the times and in the 
sequence directed by the Administrative Law Judge. In the absence of 
other directions from the Administrative Law Judge or stipulation by the 
parties, the disclosures shall be made at least 90 days before the trial 
date or the date the case is to be ready for trial or, if the evidence 
is intended solely to contradict or rebut proposed expert testimony on 
the same subject matter identified by another party under this 
paragraph, within 30 days after the disclosure made by the other party.
    (c) Scope of discovery. Unless otherwise limited by order of the 
Administrative Law Judge or the Commission in accordance with these 
rules, the scope of discovery is as follows:
    (1) In general; limitations. Parties may obtain discovery to the 
extent that it may be reasonably expected to yield information relevant 
to the allegations of the complaint, to the proposed relief, or to the 
defenses of any respondent. Such information may include the existence, 
description, nature, custody, condition and location of any books, 
documents, or other tangible things and the identity and location of 
persons having any knowledge of any discoverable matter. Information may 
not be withheld from discovery on grounds that the information will be 
inadmissible at the hearing if the information sought appears reasonably 
calculated to lead to the discovery of admissible evidence. The 
frequency or extent of use of the discovery methods otherwise permitted 
under these rules shall be limited by the Administrative Law Judge if he 
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 and expense of the proposed discovery outweigh its 
likely benefit.
    (2) Privilege. The Administrative Law Judge may enter a protective 
order denying or limiting discovery to preserve the privilege of a 
witness, person, or governmental agency as governed by the Constitution, 
any applicable act of Congress, or the principles of the common law as 
they may be interpreted by the Commission in the light of reason and 
experience.
    (3) Hearing preparations: Materials. Subject to the provisions of 
paragraph (c)(4) of this section, a party may obtain discovery of 
documents and tangible things otherwise discoverable under paragraph 
(c)(1) of this section and prepared in anticipation of litigation or for 
hearing by or for another party or by or for that other party's 
representative (including the party's attorney, consultant, or agent) 
only upon a showing that the party seeking discovery has substantial 
need of the materials in the preparation of its case and that the party 
is unable without undue hardship to obtain the substantial equivalent of 
the materials by other means. In ordering discovery of such materials 
when the required showing has been made, the Administrative Law Judge 
shall protect against disclosure of the mental impressions, conclusions, 
opinions, or legal theories of an attorney or other representative of a 
party.

[[Page 59]]

    (4) Hearing Preparation: Experts. (i) A party may depose any person 
who has been identified as an expert whose opinions may be presented at 
trial. If a report from the expert is required under Sec. 3.31(b)(3), 
the deposition shall not be conducted until after the report is 
provided.
    (A) A party may through interrogatories require any other party to 
identify each person whom the other party expects to call as an expert 
witness at hearing, to state the subject matter on which the expert is 
expected to testify, and to state the substance of the facts and 
opinions to which the expert is expected to testify and a summary of the 
grounds for each opinion.
    (B) Upon motion, the Administrative Law Judge may order further 
discovery by other means, subject to such restrictions as to scope as 
the Administrative Law Judge may deem appropriate.
    (ii) A party may discover facts known or opinions held by an expert 
who has been retained or specially employed by another party in 
anticipation of litigation or preparation for hearing and who is not 
expected to be called as a witness at hearing, only upon a showing of 
exceptional circumstances under which it is impracticable for the party 
seeking discovery to obtain facts or opinions on the same subject by 
other means.
    (d) Protective orders; order to preserve evidence. (1) The 
Administrative Law Judge may deny discovery or make any order which 
justice requires to protect a party or other person from annoyance, 
embarrassment, oppression, or undue burden or expense, or to prevent 
undue delay in the proceeding. Such an order may also be issued to 
preserve evidence upon a showing that there is substantial reason to 
believe that such evidence would not otherwise be available for 
presentation at the hearing.
    (2) [Reserved]
    (e) Supplementation of disclosures and responses. A party who has 
made an initial disclosure under Sec. 3.31(b) 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 if ordered by the Administrative Law Judge or in the 
following circumstances:
    (1) A party is under a duty to supplement at appropriate intervals 
its initial disclosures under Sec. 3.31(b) if the party learns that in 
some material respect the information disclosed is incomplete or 
incorrect and if the additional or corrective information has not 
otherwise been made known to the other parties during the discovery 
process or in writing.
    (2) A party is under a duty seasonably to amend a prior response to 
an interrogatory, request for production, or request for admission if 
the party learns that the response is in some material respect 
incomplete or incorrect.
    (f) Stipulations. When approved by the Administrative Law Judge, the 
parties may by written stipulation (1) provide that depositions may be 
taken before any person, at any time or place, upon any notice, and in 
any manner and when so taken may be used like other depositions, and (2) 
modify the procedures provided by these rules for other methods of 
discovery.
    (g) Ex parte rulings on applications for compulsory process. 
Applications for the issuance of subpoenas to compel testimony at an 
adjudicative hearing pursuant to Sec. 3.34 may be made ex parte, and, 
if so made, such applications and rulings thereon shall remain ex parte 
unless otherwise ordered by the Administrative Law Judge or the 
Commission.

[43 FR 56864, Dec. 4, 1978, as amended at 50 FR 53305, Dec. 31, 1985; 61 
FR 50647, Sept. 26, 1996; 66 FR 17628, Apr. 3, 2001; 66 FR 20527, Apr. 
23, 2001]