[Code of Federal Regulations]

[Title 7, Volume 4]

[Revised as of January 1, 2006]

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

[CITE: 7CFR283.12]



[Page 961-965]

 

                          TITLE 7--AGRICULTURE

 

    CHAPTER II--FOOD AND NUTRITION SERVICE, DEPARTMENT OF AGRICULTURE

 

PART 283_APPEALS OF QUALITY CONTROL (``QC'') CLAIMS--Table of Contents

 

            Subpart B_Appeals of QC Claims of $50,000 or More

 

Sec. 283.12  Discovery.



    (a) Dispositions--(1) Motion for taking deposition. Only upon a 

finding by the ALJ that a deposition is necessary to preserve testimony 

as provided in this subparagraph, upon the motion of a party to the 

appeal, the ALJ may, at any time after the filing of the answer, order 

the taking of testimony by deposition. The motion shall set forth:

    (i) The name and address of the proposed deponent;

    (ii) The name and address of the person (referred to hereafter in 

this section as the ``officer'') qualified under the regulations in this 

part to take depositions, before whom the proposed examination is to be 

made;

    (iii) The proposed time and place of the examination, which shall be 

at least 15 days after the date of service of the motion; and

    (iv) The reasons why such deposition should be taken, which shall be 

solely for the purpose of eliciting testimony which otherwise might not 

be available at the time of the hearing, for use as provided in 

accordance with paragraph (a)(7) of this section.

    (2) ALJ's order for taking depositions. If the ALJ finds that the 

testimony may not otherwise be available at the hearing, the taking of 

the deposition may



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be ordered. The order shall be served upon the parties, and shall state:

    (i) The time and place of the examination;

    (ii) The name of the officer before whom the examination is to be 

made; and

    (iii) The name of the deponent. The officer and the time and place 

need not be the same as those suggested in the motion.

    (3) Qualifications of officer. The deposition shall be made before 

an officer authorized by the law of the United States or by the law of 

the place of the examination to administer oaths, or before an officer 

authorized by the Secretary to administer oaths.

    (4) Procedure on examination. (i) The deponent shall be examined 

under oath or affirmation and shall be subject to cross-examination. 

Objections to questions or documents shall be in the short form, stating 

the grounds of objections relied upon. The questions propounded, 

together with all objections made (but not including argument or 

debate), shall be recorded verbatim. In lieu of oral examination, 

parties may transmit written questions to the officer prior to the 

examination and the officer shall propound such questions to the 

deponent.

    (ii) The party taking the deposition shall arrange for the 

examination of the witness either by oral examination, or by written 

questions upon agreement of the parties or as directed by the ALJ. If 

the examination is conducted by means of written questions, copies of 

the questions shall be served upon the other party to the appeal and 

filed with the officer at least 10 days prior to the date set for the 

examination unless otherwise agreed, and the other party may serve cross 

questions and file them with the officer at any time prior to the time 

of the examination.

    (iii) The parties may stipulate in writing or the ALJ may upon 

motion order that a deposition be taken by telephone. A deposition taken 

by telephone is to be taken at the place where the deponent is to answer 

questions propounded to the deponent.

    (iv) The parties may stipulate in writing or the ALJ may upon motion 

order that a deposition be recorded by other than stenographic means. 

The stipulation or the order shall designate the manner of recording, 

preserving and filing of the deposition, and may include other 

provisions to assure that the recorded testimony is accurate and 

trustworthy.

    (5) Certification by the officer. The officer shall certify on the 

deposition that the deponent was duly sworn and that the deposition is a 

true record of the deponent's testimony. The officer shall then securely 

seal the deposition, together with one copy thereof (unless there are 

more than two parties in the appeal, in which case there should be 

another copy for each additional party), in an envelope and mail the 

same by registered or certified mail to the Hearing Clerk.

    (6) Corrections to the transcript. (i) At any time prior to the 

hearing, any party may file a motion proposing corrections to the 

transcript of the deposition.

    (ii) Unless a party files such a motion in the manner prescribed, 

the transcript shall be presumed to be a true, correct, and complete 

transcript of the testimony given in the deposition proceeding and to 

contain an accurate description or reference to all exhibits in 

connection therewith, and shall be deemed to be certified correct 

without further procedure.

    (iii) At any time prior to the use of the deposition in accordance 

with paragraph (a)(7) of this section and after consideration of any 

objections filed thereto, the ALJ may issue an order making any 

corrections in the transcript which the ALJ finds are warranted, and 

these corrections shall be entered onto the original transcript by the 

Hearing Clerk (without obscuring the original text).

    (7) Use of depositions. A deposition ordered and taken in accordance 

with the provisions of this section may be used in an appeal under these 

rules if the ALJ finds that the evidence is otherwise admissible and

    (i) That the witness is deceased;

    (ii) That the witness is unable to attend or testify because of age, 

sickness, infirmity, or imprisonment;

    (iii) That the party offering the deposition has endeavored to 

procure the



[[Page 963]]



attendance of the witness by subpoena, but has been unable to do so; or

    (iv) That such exceptional circumstances exist as to make it 

desirable, in the interests of justice, to allow the deposition to be 

used. If the party upon whose motion the deposition was taken refuses to 

offer it in evidence, any other party may offer the deposition or any 

part thereof in evidence. If only part of a deposition is offered in 

evidence by a party, any other party may require the introduction of any 

other part which is relevant be considered with the part introduced, and 

any party may introduce any other parts.

    (b) Interrogatories, requests for admissions and requests for 

production of documents--(1) Interrogatories. A party may submit written 

interrogatories to any other party to an appeal. The time for submitting 

and responding to written interrogatories shall be set by the ALJ at the 

pre-hearing conference, but in no event shall the time for response be 

less than 20 days from the date of service or within such time as 

determined upon motion to the ALJ. The number of interrogatories 

submitted by each party shall not exceed twenty-five questions including 

subparts, unless additional interrogatories are authorized by the ALJ. 

Each interrogatory should be answered separately and fully in writing, 

unless it is objected to, in which event the reasons for objection 

should be stated in lieu of an answer. The answers are to be signed 

under penalty of perjury by the person making them. Objections shall be 

signed by the attorney of record in the appeal or by the responding 

party's authorized representative.

    (2) Request for admissions. A party may submit a written request for 

admission of the truth of any matters relevant to the appeal to any 

other party to the appeal. The time for submitting a written request for 

admission shall be set by the ALJ at the pre-hearing conference. The 

number of admissions contained in a request submitted by a party shall 

not exceed twenty-five unless additional admissions are authorized by 

the ALJ. The matter is admitted unless, within 20 days after service 

thereof, or within such time as determined upon motion to the ALJ, the 

party to whom the request is directed serves upon the party requesting 

the admission a written answer or objection addressed to the matter 

signed by the party, counsel or designated representative. If objection 

is made, the reasons therefor should be stated. The answer should 

specifically deny the matter or set forth in detail why the answering 

party cannot truthfully admit or deny the matter. An answering party may 

not give lack of information or knowledge as a reason for the failure to 

admit or deny unless it is stated that reasonable inquiry has been made 

and that the information known or readily obtainable is insufficient to 

enable the party to admit or deny. A party who considers that a matter 

for which an admission has been requested presents a genuine issue for 

hearing may not, on that ground alone, object to the request; the party 

may deny the matter or set forth reasons why the matter cannot be 

admitted or denied.

    (3) Request for production of documents. (i) Any party may serve 

upon any other party to the appeal a request for production of documents 

which are in the possession or control of the party upon whom the 

request is served. The time for service and response to such a request 

shall be set by the ALJ at the pre-hearing conference. Upon payment of 

fees for search and duplication of documents, any party to the appeal 

may obtain copies of such documents.

    (ii) Parties may request production of any documents regarding any 

matter, not privileged, which is relevant to the subject matter involved 

in the pending action. Grounds for objection will not exist if the 

information sought appears reasonably calculated to lead to the 

discovery of admissible evidence.

    (iii) If such documents include privileged information or 

information the disclosure of which is proscribed by the Food Stamp Act 

of 1977, as amended, such documents need not be produced.

    (c) Supplementation of response. A party who knows or later learns 

that a response is incorrect is under a duty to correct such response as 

soon as possible. A party who has responded to a request for discovery 

with a response that was complete when made is under



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a duty to supplement the response to include information thereafter 

acquired. A party is under a duty to supplement responses with respect 

to any question directly addressed to:

    (1) The identity and location of persons having knowledge of 

discoverable matters, and

    (2) The identity of each person expected to be called as an expert 

witness at the hearing, the subject matter on which such expert(s) is 

expected to testify, and the substance of the testimony.

    (d) Frequency and use of discovery. The ALJ shall limit, upon motion 

of a party, the frequency or extent of discovery if the ALJ determines 

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 by 

discovery in the action to obtain the information sought; or

    (3) The discovery is unduly burdensome or expensive, taking into 

account the needs of the case, the amount in controversy, limitations on 

the parties' resources, and the importance of the issues at stake in the 

litigation.

    (e) Protective orders--(1) Request for protective order. A party 

served with such a request may file a motion for a protective order 

before the date on which a response to the discovery request is due, 

stating why discovery should be limited or should not be required.

    (2) Issuance of protective order. In issuing a protective order, the 

ALJ may make any order which justice requires to protect a party or 

person from annoyance, embarrassment, oppression or undue burden or 

expense, including one or more of the following:

    (i) That discovery not be had;

    (ii) That the discovery may be had only through a method of 

discovery other than that requested;

    (iii) That certain matters not be inquired into, or that the scope 

of discovery be limited to certain matters;

    (iv) That discovery be conducted with no one present except persons 

designated by the ALJ; and

    (v) That the contents of discovery or evidence be sealed.

    (f) Failure to respond to discovery--(1) Motions to compel. If a 

deponent fails to respond or gives an evasive or incomplete answer to a 

question propounded at a deposition pursuant to paragraph (a) of this 

section or a party fails to respond or gives evasive or incomplete 

answers to written interrogatories or admissions, or fails to respond, 

in full or in part, to a request for production of documents served 

pursuant to paragraph (b) of this section, the party seeking discovery 

may apply for an order compelling an answer by filing and serving a 

motion on all parties and deponents.

    (2) Filing motion to compel. (i) Such motion must be filed within 20 

days following the service of the unresponsive answer upon deposition or 

within 20 days after expiration of the period allowed for answers to 

interrogatories or production of documents.

    (ii) On matters related to an oral examination, the proponent of the 

question may complete or adjourn the examination before he applies for 

an order.

    (3) Responding to motion to compel. A response to the motion may be 

filed in accordance with Sec. 283.18(d).

    (g) Decision of the ALJ. (1) The ALJ may grant a motion to compel 

production or deny a motion for a protective order only if the ALJ finds 

that the discovery sought is necessary for the expeditious, fair, and 

reasonable consideration of the issues; it is not unduly costly or 

burdensome; it will not unduly delay the proceeding; and the information 

sought is not privileged.

    (2) The initial decision of the ALJ regarding the motion to compel 

the production of privileged documents or the motion for a protective 

order shall become final and effective 10 days after service unless 

either party pursues the options as discussed in Sec. Sec. 283.17(d) 

and 283.20.

    (h) Failure to comply with an order. (1) If a party or other witness 

refuses to be sworn or refuses to answer any question after being 

directed to do so by order of the ALJ, such refusal may subject the 

refusing party to proceedings to compel compliance with the ALJ's



[[Page 965]]



order in the appropriate United States district court.

    (2) If any party or other person refuses to obey an order made under 

this section requiring an answer to designated questions or production 

of documents, the ALJ may order that the matters regarding which 

questions were asked or the contents of the document or documents or any 

other designated facts should be taken to be established for the 

purposes of the proceeding in accordance with the claim of the party 

obtaining the order.

    (i) Postponements or delays. No hearing, proceeding or other matter 

under this part shall be postponed or otherwise delayed pending the 

response or resolution of issues pertaining to a request for information 

pursuant to the Freedom of Information Act, 5 U.S.C. 552.