[Code of Federal Regulations]
[Title 7, Volume 4]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 7CFR283.12]

[Page 989-993]
 
                          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

[[Page 990]]

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 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

[[Page 991]]

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 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

[[Page 992]]

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 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

[[Page 993]]

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 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.