U.S. Code of Federal Regulations
Regulations most recently checked for updates: Mar 30, 2020
(a) In general. These rules govern the procedure in proceedings before the United States Department of Labor, Office of Administrative Law Judges. They should be construed and administered to secure the just, speedy, and inexpensive determination of every proceeding. To the extent that these rules may be inconsistent with a governing statute, regulation, or executive order, the latter controls. If a specific Department of Labor regulation governs a proceeding, the provisions of that regulation apply, and these rules apply to situations not addressed in the governing regulation. The Federal Rules of Civil Procedure (FRCP) apply in any situation not provided for or controlled by these rules, or a governing statute, regulation, or executive order.
(b) Type of proceeding. Unless the governing statute, regulation, or executive order prescribes a different procedure, proceedings follow the Administrative Procedure Act, 5 U.S.C. 551 through 559.
(c) Waiver, modification, and suspension. Upon notice to all parties, the presiding judge may waive, modify, or suspend any rule under this subpart when doing so will not prejudice a party and will serve the ends of justice.
For purposes of these rules, these definitions supplement the definitions in the Administrative Procedure Act, 5 U.S.C. 551.
Calendar call means a meeting in which the judge calls cases awaiting hearings, determines case status, and assigns a hearing date and time.
Chief Judge means the Chief Administrative Law Judge of the United States Department of Labor Office of Administrative Law Judges and judges to whom the Chief Judge delegates authority.
Docket clerk means the Chief Docket Clerk at the Office of Administrative Law Judges in Washington, DC. But once a case is assigned to a judge in a district office, docket clerk means the docket staff in that office.
Hearing means that part of a proceeding consisting of a session to decide issues of fact or law that is recorded and transcribed and provides the opportunity to present evidence or argument.
Judge means an administrative law judge appointed under the provisions of 5 U.S.C. 3105.
Order means the judge's disposition of one or more procedural or substantive issues, or of the entire matter.
Proceeding means an action before the Office of Administrative Law Judges that creates a record leading to an adjudication or order.
Representative means any person permitted to represent another in a proceeding before the Office of Administrative Law Judges.
(a) Designation. The Chief Judge designates the presiding judge for all proceedings.
(b) Authority. In all proceedings under this part, the judge has all powers necessary to conduct fair and impartial proceedings, including those described in the Administrative Procedure Act, 5 U.S.C. 556. Among them is the power to:
(1) Regulate the course of proceedings in accordance with applicable statute, regulation or executive order;
(2) Administer oaths and affirmations and examine witnesses;
(3) Compel the production of documents and appearance of witnesses within a party's control;
(4) Issue subpoenas authorized by law;
(5) Rule on offers of proof and receive relevant evidence;
(6) Dispose of procedural requests and similar matters;
(7) Terminate proceedings through dismissal or remand when not inconsistent with statute, regulation, or executive order;
(8) Issue decisions and orders;
(9) Exercise powers vested in the Secretary of Labor that relate to proceedings before the Office of Administrative Law Judges; and
(10) Where applicable take any appropriate action authorized by the FRCP.
(a) How initiated. The Office of Administrative Law Judges provides settlement judges to aid the parties in resolving the matter that is the subject of the controversy. Upon a joint request by the parties or upon referral by the judge when no party objects, the Chief Judge may appoint a settlement judge. A settlement judge will not be appointed when settlement proceedings would be inconsistent with a statute, regulation, or executive order.
(b) Appointment. The Chief Judge has discretion to appoint a settlement judge, who must be an active or retired judge. The settlement judge will not be appointed to hear and decide the case or approve the settlement without the parties' consent and the approval of the Chief Judge.
(c) Duration of settlement proceeding. Unless the Chief Judge directs otherwise, settlement negotiations under this section must be completed within 60 days from the date of the settlement judge's appointment. The settlement judge may request that the Chief Judge extend the appointment. The negotiations will be terminated if a party withdraws from participation, or if the settlement judge determines that further negotiations would be unproductive or inappropriate.
(d) Powers of the settlement judge. The settlement judge may convene settlement conferences; require the parties or their representatives to attend with full authority to settle any disputes; and impose other reasonable requirements to expedite an amicable resolution of the case.
(e) Stay of proceedings before presiding judge. The appointment of a settlement judge does not stay any aspect of the proceeding before the presiding judge. Any motion to stay must be directed to the presiding judge.
(f) Settlement conferences. Settlement conferences may be conducted by telephone, videoconference or in person at the discretion of the settlement judge after considering the nature of the case, location of the participants, availability of technology, and efficiency of administration.
(g) Confidentiality. All discussions with the settlement judge are confidential; none may be recorded or transcribed. The settlement judge must not disclose any confidential communications made during settlement proceedings, except as required by statute, executive order, or court order. The settlement judge may not be subpoenaed or called as a witness in any hearing of the case or any subsequent administrative proceedings before the Department to testify to statements made or conduct during the settlement discussions.
(h) Report. The parties must promptly inform the presiding judge of the outcome of the settlement negotiations. If a settlement is reached, the parties must submit the required documents to the presiding judge within 14 days of the conclusion of settlement discussions unless the presiding judge orders otherwise.
(i) Non-reviewable decisions. Whether a settlement judge should be appointed, the selection of a particular settlement judge, and the termination of proceedings under this section are matters not subject to review by Department officials.
The parties, their representatives, or other interested persons must not engage in ex parte communications on the merits of a case with the judge.
(a) Substitution during hearing. If the judge is unable to complete a hearing, a successor judge designated pursuant to § 18.12 may proceed upon certifying familiarity with the record and determining that the case may be completed without prejudice to the parties. The successor judge must, at a party's request, recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judge may also recall any other witness.
(b) Substitution following hearing. If the judge is unable to proceed after the hearing is concluded, the successor judge appointed pursuant to § 18.12 may issue a decision and order based upon the existing record after notifying the parties and giving them an opportunity to respond. Within 14 days of receipt of the judge's notice, a party may file an objection to the judge issuing a decision based on the existing record. If no objection is filed, the objection is considered waived. Upon good cause shown, the judge may order supplemental proceedings.
(a) Disqualification on judge's initiative. A judge must withdraw from a proceeding whenever he or she considers himself or herself disqualified.
(b) Request for disqualification. A party may file a motion to disqualify the judge. The motion must allege grounds for disqualification, and include any appropriate supporting affidavits, declarations or other documents. The presiding judge must rule on the motion in a written order that states the grounds for the ruling.
The Office of Administrative Law Judges does not appoint representatives, refer parties to representatives, or provide legal assistance.
A party seeking original relief or action is designated a complainant, claimant or plaintiff, as appropriate. A party against whom relief or other action is sought is designated a respondent or defendant, as appropriate. When participating in a proceeding, the applicable Department of Labor's agency is a party or party-in-interest.
(a) In general. A party may appear and participate in the proceeding in person or through a representative.
(b) Waiver of participation. By filing notice with the judge, a party may waive the right to participate in the hearing or the entire proceeding. When all parties waive the right to participate in the hearing, the judge may issue a decision and order based on the pleadings, evidence, and briefs.
(c) Failure to appear. When a party has not waived the right to participate in a hearing, conference or proceeding but fails to appear at a scheduled hearing or conference, the judge may, after notice and an opportunity to be heard, dismiss the proceeding or enter a decision and order without further proceedings if the party fails to establish good cause for its failure to appear.
(a) Notice of appearance. When first making an appearance, each representative must file a notice of appearance that indicates on whose behalf the appearance is made and the proceeding name and docket number. Any attorney representative must include in the notice of appearance the license registration number(s) assigned to the attorney.
(b) Categories of representation; admission standards - (1) Attorney representative. Under these rules, “attorney” or “attorney representative” means an individual who has been admitted to the bar of the highest court of a State, Commonwealth, or Territory of the United States, or the District of Columbia.
(i) Attorney in good standing. An attorney who is in good standing in his or her licensing jurisdiction may represent a party or subpoenaed witness before the Office of Administrative Law Judges. The filing of the Notice of Appearance required in paragraph (a) of this section constitutes an attestation that:
(A) The attorney is a member of a bar in good standing of the highest court of a State, Commonwealth, or Territory of the United States, or the District of Columbia where the attorney has been licensed to practice law; and
(B) No disciplinary proceeding is pending against the attorney in any jurisdiction where the attorney is licensed to practice law.
(ii) Attorney not in good standing. An attorney who is not in good standing in his or her licensing jurisdiction may not represent a party or subpoenaed witness before the Office of Administrative Law Judges, unless he or she obtains the judge's approval. Such an attorney must file a written statement that establishes why the failure to maintain good standing is not disqualifying. The judge may deny approval for the appearance of such an attorney after providing notice and an opportunity to be heard.
(iii) Disclosure of discipline. An attorney representative must promptly disclose to the judge any action suspending, enjoining, restraining, disbarring, or otherwise currently restricting the attorney in the practice of law in any jurisdiction where the attorney is licensed to practice law.
(2) Non-attorney representative. An individual who is not an attorney as defined by paragraph (b)(1) of this section may represent a party or subpoenaed witness upon the judge's approval. The individual must file a written request to serve as a non-attorney representative that sets forth the name of the party or subpoenaed witness represented and certifies that the party or subpoenaed witness desires the representation. The judge may require that the representative establish that he or she is subject to the laws of the United States and possesses communication skills, knowledge, character, thoroughness and preparation reasonably necessary to render appropriate assistance. The judge may inquire as to the qualification or ability of a non-attorney representative to render assistance at any time. The judge may deny the request to serve as non-attorney representative after providing the party or subpoenaed witness with notice and an opportunity to be heard.
(c) Duties. A representative must be diligent, prompt, and forthright when dealing with parties, representatives and the judge, and act in a manner that furthers the efficient, fair and orderly conduct of the proceeding. An attorney representative must adhere to the applicable rules of conduct for the jurisdiction(s) in which the attorney is admitted to practice.
(d) Prohibited actions. A representative must not:
(1) Threaten, coerce, intimidate, deceive or knowingly mislead a party, representative, witness, potential witness, judge, or anyone participating in the proceeding regarding any matter related to the proceeding;
(2) Knowingly make or present false or misleading statements, assertions or representations about a material fact or law related to the proceeding;
(3) Unreasonably delay, or cause to be delayed without good cause, any proceeding; or
(4) Engage in any other action or behavior prejudicial to the fair and orderly conduct of the proceeding.
(e) Withdrawal of appearance. A representative who desires to withdraw after filing a notice of appearance or a party desiring to withdraw the appearance of a representative must file a motion with the judge. The motion must state that notice of the withdrawal has been given to the party, client or representative. The judge may deny a representative's motion to withdraw when necessary to avoid undue delay or prejudice to the rights of a party.
(a) Disqualification - (1) Grounds for disqualification. Representatives qualified under § 18.22 may be disqualified for:
(i) Suspension of a license to practice law or disbarment from the practice of law by any court or agency of the United States, highest court of a State, Commonwealth, or Territory of the United States, or the District of Columbia;
(ii) Disbarment from the practice of law on consent or resignation from the bar of a court or agency while an investigation into an allegation of misconduct is pending; or
(iii) Committing an act, omission, or contumacious conduct that violates these rules, an applicable statute, an applicable regulation, or the judge's order(s).
(2) Disqualification procedure. The Chief Judge must provide notice and an opportunity to be heard as to why the representative should not be disqualified from practice before the Office of Administrative Law Judges. The notice will include a copy of the document that provides the grounds for the disqualification. Unless otherwise directed, any response must be filed within 21 days of service of the notice. The Chief Judge's determination must be based on the reliable, probative and substantial evidence of record, including the notice and response.
(b) Notification of disqualification action. When an attorney representative is disqualified, the Chief Judge will notify the jurisdiction(s) in which the attorney is licensed to practice and the National Lawyer Regulatory Data Bank maintained by the American Bar Association Standing Committee on Professional Discipline, by providing a copy of the decision and order.
(c) Application for reinstatement. A representative disqualified under this section may be reinstated by the Chief Judge upon application. At the discretion of the Chief Judge, consideration of an application for reinstatement may be limited to written submissions or may be referred for further proceedings before the Chief Judge.
The United States or an officer or agency thereof, or a State, Territory, Commonwealth, or the District of Columbia may file an amicus brief without the consent of the parties or leave of the judge. Any other amicus curiae may file a brief only by leave of the judge, upon the judge's request, or if the brief states that all parties have consented to its filing. A request for leave to file an amicus brief must be made by written motion that states the interest of the movant in the proceeding. The deadline for submission of an amicus brief will be set by the presiding judge.
(a) Service on parties - (1) In general. Unless these rules provide otherwise, all papers filed with OALJ or with the judge must be served on every party.
(2) Service: how made - (i) Serving a party's representative. If a party is represented, service under this section must be made on the representative. The judge also may order service on the party.
(ii) Service in general. A paper is served under this section by:
(A) Handing it to the person;
(B) Leaving it;
(1) At the person's office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or
(2) If the person has no office or the office is closed, at the person's dwelling or usual place of abode with someone of suitable age and discretion who resides there.
(C) Mailing it to the person's last known address - in which event service is complete upon mailing;
(D) Leaving it with the docket clerk if the person has no known address;
(E) Sending it by electronic means if the person consented in writing - in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served; or
(F) Delivering it by any other means that the person consented to in writing - in which event service is complete when the person making service delivers it to the agency designated to make delivery.
(3) Certificate of service. A certificate of service is a signed written statement that the paper was served on all parties. The statement must include:
(i) The title of the document;
(ii) The name and address of each person or representative being served;
(iii) The name of the party filing the paper and the party's representative, if any;
(iv) The date of service; and
(v) How the paper was served.
(b) Filing with Office of Administrative Law Judges - (1) Required filings. Any paper that is required to be served must be filed within a reasonable time after service with a certificate of service. But disclosures under § 18.50(c) and the following discovery requests and responses must not be filed until they are used in the proceeding or the judge orders filing:
(i) Notices of deposition,
(iv) Requests for documents or tangible things or to permit entry onto land;
(v) Requests for admission, and
(vi) The notice (and the related copy of the subpoena) that must be served on the parties under rule 18.56(b)(1) before a “documents only” subpoena may be served on the person commended to produce the material.
(2) Filing: when made - in general. A paper is filed when received by the docket clerk or the judge during a hearing.
(3) Filing how made. A paper may be filed by mail, courier service, hand delivery, facsimile or electronic delivery.
(i) Filing by facsimile - (A) When permitted. A party may file by facsimile only as directed or permitted by the judge. If a party cannot obtain prior permission because the judge is unavailable, a party may file by facsimile up to 12 pages, including a statement of the circumstances precluding filing by delivery or mail. Based on the statement, the judge may later accept the document as properly filed at the time transmitted.
(B) Cover sheet. Filings by facsimile must include a cover sheet that identifies the sender, the total number of pages transmitted, and the matter's docket number and the document's title.
(C) Retention of the original document. The original signed document will not be substituted into the record unless required by law or the judge.
(ii) Any party filing a facsimile of a document must maintain the original document and transmission record until the case is final. A transmission record is a paper printed by the transmitting facsimile machine that states the telephone number of the receiving machine, the number of pages sent, the transmission time and an indication that no error in transmission occurred.
(iii) Upon a party's request or judge's order, the filing party must provide for review the original transmitted document from which the facsimile was produced.
(4) Electronic filing, signing, or verification. A judge may allow papers to be filed, signed, or verified by electronic means.
(a) Redacted filings and exhibits. Unless the judge orders otherwise, in an electronic or paper filing or exhibit that contains an individual's social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, or a financial-account number, the party or nonparty making the filing must redact all such information, except:
(1) The last four digits of the social-security number and taxpayer-identification number;
(2) The year of the individual's birth;
(3) The minor's initials; and
(4) The last four digits of the financial-account number.
(b) Exemptions from the redaction requirement. The redaction requirement does not apply to the following:
(1) The record of an administrative or agency proceeding;
(2) The official record of a state-court proceeding;
(3) The record of a court or tribunal, if that record was not subject to the redaction requirement when originally filed; and
(4) A filing or exhibit covered by paragraph (c) of this section.
(c) Option for filing a reference list. A filing that contains redacted information may be filed together with a reference list that identifies each item of redacted information and specifies an appropriate identifier that uniquely corresponds to each item listed. The reference list must be filed under seal and may be amended as of right. Any reference in the case to a listed identifier will be construed to refer to the corresponding item of information.
(d) Waiver of protection of identifiers. A person waives the protection of paragraph (a) of this section as to the person's own information by filing or offering it without redaction and not under seal.
(e) Protection of material. For good cause, the judge may order protection of material pursuant to §§ 18.85 and 18.52.
(a) Computing time. The following rules apply in computing any time period specified in these rules, a judge's order, or in any statute, regulation, or executive order that does not specify a method of computing time.
(1) When the period is stated in days or a longer unit of time:
(i) Exclude the day of the event that triggers the period;
(ii) Count every day, including intermediate Saturdays, Sundays, and legal holidays; and
(iii) Include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.
(2) “Last day” defined. Unless a different time is set by a statute, regulation, executive order, or judge's order, the “last day” ends at 4:30 p.m. local time where the event is to occur.
(3) “Next day” defined. The “next day” is determined by continuing to count forward when the period is measured after an event and backward when measured before an event.
(4) “Legal holiday” defined. “Legal holiday” means the day set aside by statute for observing New Year's Day, Martin Luther King Jr.'s Birthday, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, or Christmas Day; and any day on which the district office in which the document is to be filed is closed or otherwise inaccessible.
(b) Extending time. When an act may or must be done within a specified time, the judge may, for good cause, extend the time:
(1) With or without motion or notice if the judge acts, or if a request is made, before the original time or its extension expires; or
(2) On motion made after the time has expired if the party failed to act because of excusable neglect.
(c) Additional time after certain kinds of service. When a party may or must act within a specified time after service and service is made under § 18.30(a)(2)(ii)(C) or (D), 3 days are added after the period would otherwise expire under paragraph (a) of this section.
(a) In general. A request for an order must be made by motion. The motion must:
(1) Be in writing, unless made during a hearing;
(2) State with particularity the grounds for seeking the order;
(3) State the relief sought;
(4) Unless the relief sought has been agreed to by all parties, be accompanied by affidavits, declarations, or other evidence; and
(5) If required by paragraph (c)(4) of this section, include a memorandum of points and authority supporting the movant's position.
(b) Form. The rules governing captions and other matters of form apply to motions and other requests.
(c) Written motion before hearing. (1) A written motion before a hearing must be served with supporting papers, at least 21 days before the time specified for the hearing, with the following exceptions:
(i) When the motion may be heard ex parte;
(ii) When these rules or an appropriate statute, regulation, or executive order set a different time; or
(iii) When an order sets a different time.
(2) A written motion served within 21 days before the hearing must state why the motion was not made earlier.
(3) A written motion before hearing must state that counsel conferred, or attempted to confer, with opposing counsel in a good faith effort to resolve the motion's subject matter, and whether the motion is opposed or unopposed. A statement of consultation is not required with pro se litigants or with the following motions:
(i) To dismiss;
(ii) For summary decision; and
(iii) Any motion filed as “joint,” “agreed,” or “unopposed.”
(4) Unless the motion is unopposed, the supporting papers must include affidavits, declarations or other proof to establish the factual basis for the relief. For a dispositive motion and a motion relating to discovery, a memorandum of points and authority must also be submitted. A judge may direct the parties file additional documents in support of any motion.
(d) Opposition or other response to a motion filed prior to hearing. A party to the proceeding may file an opposition or other response to the motion within 14 days after the motion is served. The opposition or response may be accompanied by affidavits, declarations, or other evidence, and a memorandum of the points and authorities supporting the party's position. Failure to file an opposition or response within 14 days after the motion is served may result in the requested relief being granted. Unless the judge directs otherwise, no further reply is permitted and no oral argument will be heard prior to hearing.
(e) Motions made at hearing. A motion made at a hearing may be stated orally unless the judge determines that a written motion or response would best serve the ends of justice.
(f) Renewed or repeated motions. A motion seeking the same or substantially similar relief previously denied, in whole or in part, must include the following information:
(1) The earlier motion(s),
(2) When the respective motion was made,
(3) The judge to whom the motion was made,
(4) The earlier ruling(s), and
(5) The basis for the current motion.
(g) Motion hearing. The judge may order a hearing to take evidence or oral argument on a motion.
Every paper filed must be printed in black ink on 8.5 × 11-inch opaque white paper and begin with a caption that includes:
(a) The parties' names,
(b) A title that describes the paper's purpose, and
(c) The docket number assigned by the Office of Administrative Law Judges. If the Office has not assigned a docket number, the paper must bear the case number assigned by the Department of Labor agency where the matter originated. If the case number is an individual's Social Security number then only the last four digits may be used. See § 18.31(a)(1).
(a) Date and signature. Every written motion and other paper filed with OALJ must be dated and signed by at least one representative of record in the representative's name - or by a party personally if the party is unrepresented. The paper must state the signer's address, telephone number, facsimile number and email address, if any. The judge must strike an unsigned paper unless the omission is promptly corrected after being called to the representative's or party's attention.
(b) Representations to the judge. By presenting to the judge a written motion or other paper - whether by signing, filing, submitting, or later advocating it - the representative or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) It is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of the proceedings;
(2) The claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) The factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
(c) Sanctions - (1) In general. If, after notice and a reasonable opportunity to respond, the judge determines that paragraph (b) of this section has been violated, the judge may impose an appropriate sanction on any representative, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.
(2) Motion for sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates paragraph (b) of this section. The motion must be served under § 18.30(a), but it must not be filed or be presented to the judge if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the judge sets.
(3) On the judge's initiative. On his or her own, the judge may order a representative, law firm, or party to show cause why conduct specifically described in the order has not violated paragraph (b) of this section.
(4) Nature of a sanction. A sanction imposed under this section may include, but is not limited to, striking part or all of the offending document, forbidding the filing of any further documents, excluding related evidence, admonishment, referral of counsel misconduct to the appropriate licensing authority, and including the sanctioned activity in assessing the quality of representation when determining an appropriate hourly rate and billable hours when adjudicating attorney fees.
(5) Requirements for an order. An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction.
(d) Inapplicability to discovery. This section does not apply to disclosures and discovery requests, responses, objections, and motions under §§ 18.50 through 18.65.
The judge may allow parties to amend and supplement their filings.
(a) In general. Except when the hearing is scheduled by calendar call, the judge must notify the parties of the hearing's date, time, and place at least 14 days before the hearing. The notice is sent by regular, first-class mail, unless the judge determines that circumstances require service by certified mail or other means. The parties may agree to waive the 14-day notice for the hearing.
(b) Date, time, and place. The judge must consider the convenience and necessity of the parties and the witnesses in selecting the date, time, and place of the hearing.
(a) By the judge. Upon reasonable notice to the parties, the judge may change the time, date, and place of the hearing.
(b) By a party's motion. A request by a party to continue a hearing or to change the place of the hearing must be made by motion.
(1) Continuances. A motion for continuance must be filed promptly after the party becomes aware of the circumstances supporting the continuance. In exceptional circumstances, a party may orally request a continuance and must immediately notify the other parties of the continuance request.
(2) Change in place of hearing. A motion to change the place of a hearing must be filed promptly.
A party may move to expedite the proceeding. The motion must demonstrate the specific harm that would result if the proceeding is not expedited. If the motion is granted, the formal hearing ordinarily will not be scheduled with less than 7 days notice to the parties, unless all parties consent to an earlier hearing.
(a) Consolidation. If separate proceedings before the Office of the Administrative Law Judges involve a common question of law or fact, a judge may:
(1) Join for hearing any or all matters at issue in the proceedings;
(2) Consolidate the proceedings; or
(3) Issue any other orders to avoid unnecessary cost or delay.
(b) Separate hearings. For convenience, to avoid prejudice, or to expedite and economize, the judge may order a separate hearing of one or more issues.
(a) In general. The judge, with or without a motion, may order one or more prehearing conferences for such purposes as:
(1) Expediting disposition of the proceeding;
(2) Establishing early and continuing control so that the case will not be protracted because of lack of management;
(3) Discouraging wasteful prehearing activities;
(4) Improving the quality of the hearing through more thorough preparation; and
(5) Facilitating settlement.
(b) Scheduling. Prehearing conferences may be conducted in person, by telephone, or other means after reasonable notice of time, place and manner of conference has been given.
(c) Participation. All parties must participate in prehearing conferences as directed by the judge. A represented party must authorize at least one of its attorneys or representatives to make stipulations and admissions about all matters that can reasonably be anticipated for discussion at the prehearing conference, including possible settlement.
(d) Matters for consideration. At the conference, the judge may consider and take appropriate actions on the following matters:
(1) Formulating and simplifying the issues, and eliminating frivolous claims or defenses;
(2) Amending the papers that had framed the issues before the matter was referred for hearing;
(3) Obtaining admissions and stipulations about facts and documents to avoid unnecessary proof, and ruling in advance on the admissibility of evidence;
(4) Avoiding unnecessary proof and cumulative evidence, and limiting the number of expert or other witnesses;
(5) Determining the appropriateness and timing of dispositive motions under §§ 18.70 and 18.72;
(6) Controlling and scheduling discovery, including orders affecting disclosures and discovery under §§ 18.50 through 18.65;
(7) Identifying witnesses and documents, scheduling the filing and exchange of any exhibits and prehearing submissions, and setting dates for further conferences and for the hearing;
(8) Referring matters to a special master;
(9) Settling the case and using special procedures to assist in resolving the dispute such as the settlement judge procedure under § 18.13, private mediation, and other means authorized by statute or regulation;
(10) Determining the form and content of prehearing orders;
(11) Disposing of pending motions;
(12) Adopting special procedures for managing potentially difficult or protracted proceedings that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems;
(13) Consolidating or ordering separate hearings under § 18.43;
(14) Ordering the presentation of evidence early in the proceeding on a manageable issue that might, on the evidence, be the basis for disposing of the proceeding;
(15) Establishing a reasonable limit on the time allowed to present evidence; and
(16) Facilitating in other ways the just, speedy, and inexpensive disposition of the proceeding.
(e) Reporting. The judge may direct that the prehearing conference be recorded and transcribed. If the conference is not recorded, the judge should summarize the conference proceedings on the record at the hearing or by separate prehearing notice or order.
(a) Timing and sequence of discovery - (1) Timing. A party may seek discovery at any time after a judge issues an initial notice or order. But if the judge orders the parties to confer under paragraph (b) of this section:
(i) The time to respond to any pending discovery requests is extended until the time agreed in the discovery plan, or that the judge sets in resolving disputes about the discovery plan, and
(ii) No party may seek additional discovery from any source before the parties have conferred as required by paragraph (b) of this section, except by stipulation.
(2) Sequence. Unless, on motion, the judge orders otherwise for the parties' and witnesses' convenience and in the interests of justice:
(i) Methods of discovery may be used in any sequence; and
(ii) Discovery by one party does not require any other party to delay its discovery.
(b) Conference of the parties; planning for discovery - (1) In general. The judge may order the parties to confer on the matters described in paragraphs (b)(2) and (3) of this section.
(2) Conference content; parties' responsibilities. In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by paragraph (c) of this section; discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The representatives of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the judge within 14 days after the conference a written report outlining the plan. The judge may order the parties or representatives to attend the conference in person.
(3) Discovery plan. A discovery plan must state the parties' views and proposals on:
(i) What changes should be made in the timing, form, or requirement for disclosures under paragraph (c) of this section, including a statement of when initial disclosures were made or will be made;
(ii) The subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues;
(iii) Any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced;
(iv) Any issues about claims of privilege or of protection as hearing-preparation materials, including - if the parties agree on a procedure to assert these claims after production - whether to ask the judge to include their agreement in an order;
(v) What changes should be made in the limitations on discovery imposed under these rules and what other limitations should be imposed; and
(vi) Any other orders that the judge should issue under § 18.52 or § 18.44.
(c) Required disclosures - (1) Initial disclosure - (i) In general. Except as exempted by paragraph (c)(1)(ii) of this section or otherwise ordered by the judge, a party must, without awaiting a discovery request, provide to the other parties:
(A) The name and, if known, the address and telephone number of each individual likely to have discoverable information - along with the subjects of that information - that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
(B) A copy - or a description by category and location - of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; and
(C) A computation of each category of damages claimed by the disclosing party - who must also make available for inspection and copying as under § 18.61 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered.
(ii) Proceedings exempt from initial disclosure. The following proceedings are exempt from initial disclosure:
(A) A proceeding under 29 CFR part 20 for review of an agency determination regarding the existence or amount of a debt, or the repayment schedule proposed by the agency;
(B) A proceeding before the Board of Alien Labor Certification Appeals under the Immigration and Nationality Act; and
(C) A proceeding under the regulations governing certification of H-2 non-immigrant temporary agricultural employment at 20 CFR part 655, subpart B;
(D) A rulemaking proceeding under the Occupational Safety and Health Act of 1970; and
(E) A proceeding for civil penalty assessments under Employee Retirement Income Security Act of 1974, 29 U.S.C. 1132.
(iii) Parties exempt from initial disclosure. The following parties are exempt from initial disclosure:
(A) In a Black Lung benefits proceeding under 30 U.S.C. 901 et seq., the representative of the Office of Workers' Compensation Programs of the Department of Labor, if an employer has been identified as the Responsible Operator and is a party to the proceeding, see 20 CFR 725.418(d); and
(B) In a proceeding under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901-950,or,42.S.C. 1651-1654, the representative of the Office of Workers' Compensation Programs of the Department of Labor, unless the Solicitor of Labor or the Solicitor's designee has elected to participate in the proceeding under 20 CFR 702.333(b), or unless an employer or carrier has applied for relief under the special fund, as defined in 33 U.S.C. 908(f).
(iv) Time for initial disclosures - in general. A party must make the initial disclosures required by paragraph (c)(1)(i) of this section within 21 days after an initial notice or order is entered acknowledging that the proceeding has been docketed at the OALJ unless a different time is set by stipulation or a judge's order, or a party objects during the conference that initial disclosures are not appropriate in the proceeding and states the objection in the proposed discovery plan. In ruling on the objection, the judge must determine what disclosures, if any, are to be made and must set the time for disclosure.
(v) Time for initial disclosures - for parties served or joined later. A party that is first served or otherwise joined later in the proceeding must make the initial disclosures within 21 days after being served or joined, unless a different time is set by stipulation or the judge's order. Copies of all prior disclosures must be served on a newly served or joined party within 21 days of the service or joinder.
(vi) Basis for initial disclosure; unacceptable excuses. A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.
(2) Disclosure of expert testimony - (i) In general. A party must disclose to the other parties the identity of any witness who may testify at hearing, either live or by deposition. The judge should set the time for the disclosure by prehearing order.
(ii) Witnesses who must provide a written report. Unless otherwise stipulated or ordered by the judge, this disclosure must be accompanied by a written report - prepared and signed by the witness - if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain:
(A) A complete statement of all opinions the witness will express and the basis and reasons for them;
(B) The facts or data considered by the witness in forming them;
(C) Any exhibits that will be used to summarize or support them;
(D) The witness's qualifications, including a list of all publications authored in the previous 10 years;
(E) A list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial, a hearing, or by deposition; and
(F) A statement of the compensation to be paid for the study and testimony in the case.
(iii) Witnesses who do not provide a written report. Unless otherwise stipulated or ordered by the judge that the witness is not required to provide a written report, this disclosure must state:
(A) The subject matter on which the witness is expected to present expert opinion evidence; and
(B) A summary of the facts and opinions to which the witness is expected to testify.
(iv) Supplementing the disclosure. The parties must supplement these disclosures when required under § 18.53.
(3) Prehearing disclosures. In addition to the disclosures required by paragraphs (c)(1) and (2) of this section, a party must provide to the other parties and promptly file the prehearing disclosures described in § 18.80.
(4) Form of disclosures. Unless the judge orders otherwise, all disclosures under this paragraph (c) must be in writing, signed, and served.
(d) Signing disclosures and discovery requests, responses, and objections - (1) Signature required; effect of signature. Every disclosure under paragraph (c) of this section and every discovery request, response, or objection must be signed by at least one of the party's representatives in the representative's own name, or by the party personally if unrepresented, and must state the signer's address, telephone number, facsimile number, and email address, if any. By signing, a representative or party certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry:
(i) With respect to a disclosure, it is complete and correct as of the time it is made; and
(ii) With respect to a discovery request, response, or objection, it is:
(A) Consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;
(B) Not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and
(C) Neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.
(2) Failure to sign. Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the judge must strike it unless a signature is promptly supplied after the omission is called to the representative's or party's attention.
(3) Sanction for improper certification. If a certification violates this section without substantial justification, the judge, on motion or on his or her own, must impose an appropriate sanction, as provided in § 18.57, on the signer, the party on whose behalf the signer was acting, or both.
(a) Scope in general. Unless otherwise limited by a judge's order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense - including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the judge may order discovery of any matter relevant to the subject matter involved in the proceeding. Relevant information need not be admissible at the hearing if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by paragraph (b)(4) of this section.
(b) Limitations on frequency and extent - (1) When permitted. By order, the judge may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under § 18.64. The judge's order may also limit the number of requests under § 18.63.
(2) Specific limitations on electronically stored information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the judge may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of paragraph (b)(4) of this section. The judge may specify conditions for the discovery.
(3) Inadvertently disclosed privileged or protected information. By requesting electronically stored information, a party consents to the application of Federal Rule of Evidence 502 with regard to inadvertently disclosed privileged or protected information.
(4) When required. On motion or on his or her own, the judge must limit the frequency or extent of discovery otherwise allowed by these rules when:
(i) The discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) The party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) The burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
(c) Hearing preparation: Materials - (1) Documents and tangible things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for hearing by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to paragraph (d) of this section, those materials may be discovered if:
(i) They are otherwise discoverable under paragraph (a) of this section; and
(ii) The party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
(2) Protection against disclosure. A judge who orders discovery of those materials must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's representative concerning the litigation.
(3) Previous statement. Any party or other person may, on request and without the required showing, obtain the person's own previous statement about the action or its subject matter. If the request is refused, the person may move for a judge's order. A previous statement is either:
(i) A written statement that the person has signed or otherwise adopted or approved; or
(ii) A contemporaneous stenographic, mechanical, electrical, or other recording - or a transcription of it - that recites substantially verbatim the person's oral statement.
(d) Hearing preparation: Experts - (1) Deposition of an expert who may testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If § 18.50(c)(2)(ii) requires a report from the expert the deposition may be conducted only after the report is provided, unless the parties stipulate otherwise.
(2) Hearing-preparation protection for draft reports or disclosures. Paragraphs (c)(1) and (2) of this section protect drafts of any report or disclosure required under § 18.50(c)(2), regardless of the form in which the draft is recorded.
(3) Hearing-preparation protection for communications between a party's representative and expert witnesses. Paragraphs (c)(1) and (2) under this section protect communications between the party's representative and any witness required to provide a report under § 18.50(c)(2)(ii), regardless of the form of the communications, except to the extent that the communications:
(i) Relate to compensation for the expert's study or testimony;
(ii) Identify facts or data that the party's representative provided and that the expert considered in forming the opinions to be expressed; or
(iii) Identify assumptions that the party's representative provided and that the expert relied on in forming the opinions to be expressed.
(4) Expert employed only for hearing preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for hearing and whose testimony is not anticipated to be used at the hearing. But a party may do so only:
(i) As provided in § 18.62(c); or
(ii) On showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
(e) Claiming privilege or protecting hearing-preparation materials - (1) Information withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as hearing-preparation material, the party must:
(i) Expressly make the claim; and
(ii) Describe the nature of the documents, communications, or tangible things not produced or disclosed - and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
(2) Information produced. If information produced in discovery is subject to a claim of privilege or of protection as hearing-preparation material, the party making the claim must notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the judge for an in camera determination of the claim. The producing party must preserve the information until the claim is resolved.
(a) In general. A party or any person from whom discovery is sought may file a written motion for a protective order. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without the judge's action. The judge may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(1) Forbidding the disclosure or discovery;
(2) Specifying terms, including time and place, for the disclosure or discovery;
(3) Prescribing a discovery method other than the one selected by the party seeking discovery;
(4) Forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
(5) Designating the persons who may be present while the discovery is conducted;
(6) Requiring that a deposition be sealed and opened only on the judge's order;
(7) Requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way;
(8) Requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the judge directs.
(b) Ordering discovery. If a motion for a protective order is wholly or partly denied, the judge may, on just terms, order that any party or person provide or permit discovery.
(a) In general. A party who has made a disclosure under § 18.50(c) - or who has responded to an interrogatory, request for production, or request for admission - must supplement or correct its disclosure or response:
(1) In a timely manner if the party learns that in some material respect the disclosure or response 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; or
(2) As ordered by the judge.
(b) Expert witness. For an expert whose report must be disclosed under § 18.50(c)(2)(ii), the party's duty to supplement extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time the party's prehearing disclosures under § 18.50(c)(3) are due.
Unless the judge orders otherwise, the parties may stipulate that:
(a) A deposition may be taken before any person, at any time or place, on any notice, and in the manner specified - in which event it may be used in the same way as any other deposition; and
(b) Other procedures governing or limiting discovery be modified - but a stipulation extending the time for any form of discovery must have the judge's approval if it would interfere with the time set for completing discovery, for hearing a motion, or for hearing.
(a) Using depositions - (1) In general. If there is no objection, all or part of a deposition may be used at a hearing to the extent it would be admissible under the applicable rules of evidence as if the deponent were present and testifying.
(2) Over objection. Notwithstanding any objection, all or part of a deposition may be used at a hearing against a party on these conditions:
(i) The party was present or represented at the taking of the deposition or had reasonable notice of it;
(ii) It is used to the extent it would be admissible under the applicable rules of evidence if the deponent were present and testifying; and
(iii) The use is allowed by paragraphs (a)(3) through (9) of this section.
(3) Impeachment and other uses. Any party may use a deposition to contradict or impeach the testimony given by the deponent as a witness, or for any other purpose allowed by the applicable rules of evidence.
(4) Deposition of party, agent, or designee. An adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party's officer, director, managing agent, or designee under § 18.64(b)(6) or § 18.65(a)(4).
(5) Deposition of expert, treating physician, or examining physician. A party may use for any purpose the deposition of an expert witness, treating physician or examining physician.
(6) Unavailable witness. A party may use for any purpose the deposition of a witness, whether or not a party, if the judge finds:
(i) That the witness is dead;
(ii) That the witness is more than 100 miles from the place of hearing or is outside the United States, unless it appears that the witness's absence was procured by the party offering the deposition;
(iii) That the witness cannot attend or testify because of age, illness, infirmity, or imprisonment;
(iv) That the party offering the deposition could not procure the witness's attendance by subpoena; or
(v) on motion and notice, that exceptional circumstances make it desirable - in the interests of justice and with due regard to the importance of live testimony in an open hearing - to permit the deposition to be used.
(7) Limitations on use - (i) Deposition taken on short notice. A deposition must not be used against a party who, having received less than 14 days' notice of the deposition, promptly moved for a protective order under § 18.52(a)(2) requesting that it not be taken or be taken at a different time or place - and this motion was still pending when the deposition was taken.
(ii) Unavailable deponent; party could not obtain a representative. A deposition taken without leave of the judge under the unavailability provision of § 18.64(a)(2)(i)(C) must not be used against a party who shows that, when served with the notice, it could not, despite diligent efforts, obtain a representative to represent it at the deposition.
(8) Using part of a deposition. If a party offers in evidence only part of a deposition, an adverse party may require the offeror to introduce other parts that in fairness should be considered with the part introduced, and any party may itself introduce any other parts.
(9) Deposition taken in an earlier action. A deposition lawfully taken may be used in a later action involving the same subject matter between the same parties, or their representatives or successors in interest, to the same extent as if taken in the later action. A deposition previously taken may also be used as allowed by the applicable rules of evidence.
(b) Objections to admissibility. Subject to paragraph (d)(3) of this section, an objection may be made at a hearing to the admission of any deposition testimony that would be inadmissible if the witness were present and testifying.
(c) Form of presentation. Unless the judge orders otherwise, a party must provide a transcript of any deposition testimony the party offers, but the judge may receive the testimony in nontranscript form as well.
(d) Waiver of objections - (1) To the notice. An objection to an error or irregularity in a deposition notice is waived unless promptly served in writing on the party giving the notice.
(2) To the officer's qualification. An objection based on disqualification of the officer before whom a deposition is to be taken is waived if not made:
(i) Before the deposition begins; or
(ii) Promptly after the basis for disqualification becomes known or, with reasonable diligence, could have been known.
(3) To the taking of the deposition - (i) Objection to competence, relevance, or materiality. An objection to a deponent's competence - or to the competence, relevance, or materiality of testimony - is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time.
(ii) Objection to an error or irregularity. An objection to an error or irregularity at an oral examination is waived if:
(A) It relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party's conduct, or other matters that might have been corrected at that time; and
(B) It is not timely made during the deposition.
(iii) Objection to a written question. An objection to the form of a written question under § 18.65 is waived if not served in writing on the party submitting the question within the time for serving responsive questions or, if the question is a recross-question, within 7 days after being served with it.
(4) To completing and returning the deposition. An objection to how the officer transcribed the testimony - or prepared, signed, certified, sealed, endorsed, sent, or otherwise dealt with the deposition - is waived unless a motion to suppress is made promptly after the error or irregularity becomes known or, with reasonable diligence, could have been known.
(a) In general. (1) Upon written application of a party the judge may issue a subpoena authorized by statute or law that requires a witness to attend and to produce relevant papers, books, documents, or tangible things in the witness' possession or under the witness' control.
(2) Form and contents - (i) Requirements - in general. Every subpoena must:
(A) State the title of the matter and show the case number assigned by the Office of Administrative Law Judges or the Office of Worker's Compensation Programs. In the event that the case number is an individual's Social Security number only the last four numbers may be used. See § 18.31(a)(1);
(B) Bear the signature of the issuing judge;
(C) Command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control; or permit the inspection of premises; and
(D) Set out the text of paragraphs (c) and (d) of this section.
(ii) Command to attend a deposition - notice of the recording method. A subpoena commanding attendance at a deposition must state the method for recording the testimony.
(iii) Combining or separating a command to produce or to permit inspection; specifying the form for electronically stored information. A command to produce documents, electronically stored information, or tangible things or to permit the inspection of premises may be included in a subpoena commanding attendance at a deposition or hearing, or may be set out in a separate subpoena. A subpoena may specify the form or forms in which electronically stored information is to be produced.
(iv) Command to produce; included obligations. A command in a subpoena to produce documents, electronically stored information, or tangible things requires the responding party to permit inspection, copying, testing, or sampling of the materials.
(b) Service - (1) By whom; tendering fees; serving a copy of certain subpoenas. Any person who is at least 18 years old and not a party may serve a subpoena. Serving a subpoena requires delivering a copy to the named person and, if the subpoena requires that person's attendance, tendering with it the fees for 1 day's attendance and the mileage allowed by law. Service may also be made by certified mail with return receipt. Fees and mileage need not be tendered when the subpoena issues on behalf of the United States or any of its officers or agencies. If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before the formal hearing, then before it is served on the person to whom it is directed, a notice and copy of the subpoena must be served on each party.
(2) Service in the United States. Subject to paragraph (c)(3)(i)(B) of this section, a subpoena may be served at any place within a State, Commonwealth, or Territory of the United States, or the District of Columbia.
(3) Service in a foreign country. 28 U.S.C. 1783 governs issuing and serving a subpoena directed to a United States national or resident who is in a foreign country.
(4) Proof of service. Proving service, when necessary, requires filing with the judge a statement showing the date and manner of service and the names of the persons served. The statement must be certified by the server.
(c) Protecting a person subject to a subpoena - (1) Avoiding undue burden; sanctions. A party or representative responsible for requesting, issuing, or serving a subpoena must take reasonable steps to avoid imposing undue burden on a person subject to the subpoena. The judge must enforce this duty and impose an appropriate sanction.
(2) Command to produce materials or permit inspection - (i) Appearance not required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition or hearing.
(ii) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or representative designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises - or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply:
(A) At any time, on notice to the commanded person, the serving party may move the judge for an order compelling production or inspection.
(B) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance.
(3) Quashing or modifying a subpoena - (i) When required. On timely motion, the judge must quash or modify a subpoena that:
(A) Fails to allow a reasonable time to comply;
(B) Requires a person who is neither a party nor a party's officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person - except that, subject to paragraph (c)(3)(ii)(C) of this section, the person may be commanded to attend the formal hearing;
(C) Requires disclosure of privileged or other protected matter, if no exception or waiver applies; or
(D) Subjects a person to undue burden.
(ii) When permitted. To protect a person subject to or otherwise affected by a subpoena, the judge may, on motion, quash or modify the subpoena if it requires:
(A) Disclosing a trade secret or other confidential research, development, or commercial information;
(B) Disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party; or
(C) A person who is neither a party nor a party's officer to incur substantial expense to travel more than 100 miles to attend the formal hearing.
(iii) Specifying conditions as an alternative. In the circumstances described in paragraph (c)(3)(ii) of this section, the judge may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party:
(A) Shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and
(B) Ensures that the subpoenaed person will be reasonably compensated.
(d) Duties in responding to a subpoena - (1) Producing documents or electronically stored information. These procedures apply to producing documents or electronically stored information:
(i) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand.
(ii) Form for producing electronically stored information not specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.
(iii) Electronically stored information produced in only one form. The person responding need not produce the same electronically stored information in more than one form.
(iv) Inaccessible electronically stored information. The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the judge may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of § 18.51(b)(4)(iii). The judge may specify conditions for the discovery.
(2) Claiming privilege or protection - (i) Information withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as hearing-preparation material must:
(A) Expressly make the claim; and
(B) Describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.
(ii) Information produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as hearing-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the judge in camera for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved.
(e) Failure to obey. When a person fails to obey a subpoena, the party adversely affected by the failure may, when authorized by statute or by law, apply to the appropriate district court to enforce the subpoena.
(a) Motion for an order compelling disclosure or discovery - (1) In general. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without the judge's action.
(2) Specific motions - (i) To compel disclosure. If a party fails to make a disclosure required by § 18.50(c), any other party may move to compel disclosure and for appropriate sanctions.
(ii) To compel a discovery response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if:
(A) A deponent fails to answer a question asked under §§ 18.64 and 18.65;
(B) A corporation or other entity fails to make a designation under §§ 18.64(b)(6) and 18.65(a)(4);
(C) A party fails to answer an interrogatory submitted under § 18.60; or
(D) A party fails to respond that inspection will be permitted - or fails to permit inspection - as requested under § 18.61.
(iii) Related to a deposition. When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order.
(3) Evasive or incomplete disclosure, answer, or response. For purposes of paragraph (a) of this section, an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.
(b) Failure to comply with a judge's order - (1) For not obeying a discovery order. If a party or a party's officer, director, or managing agent - or a witness designated under §§ 18.64(b)(6) and 18.65(a)(4) - fails to obey an order to provide or permit discovery, including an order under § 18.50(b) or paragraph (a) of this section, the judge may issue further just orders. They may include the following:
(i) Directing that the matters embraced in the order or other designated facts be taken as established for purposes of the proceeding, as the prevailing party claims;
(ii) Prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) Striking claims or defenses in whole or in part;
(iv) Staying further proceedings until the order is obeyed;
(v) Dismissing the proceeding in whole or in part; or
(vi) Rendering a default decision and order against the disobedient party;
(2) For not producing a person for examination. If a party fails to comply with an order under § 18.62 requiring it to produce another person for examination, the judge may issue any of the orders listed in paragraph (b)(1) of this section, unless the disobedient party shows that it cannot produce the other person.
(c) Failure to disclose, to supplement an earlier response, or to admit. If a party fails to provide information or identify a witness as required by §§ 18.50(c) and 18.53, or if a party fails to admit what is requested under § 18.63(a) and the requesting party later proves a document to be genuine or the matter true, the party is not allowed to use that information or witness to supply evidence on a motion or at a hearing, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the judge, on motion and after giving an opportunity to be heard may impose other appropriate sanctions, including any of the orders listed in paragraph (b)(1) of this section.
(d) Party's failure to attend its own deposition, serve answers to interrogatories, or respond to a request for inspection - (1) In general - (i) Motion; grounds for sanctions. The judge may, on motion, order sanctions if:
(A) A party or a party's officer, director, or managing agent - or a person designated under §§ 18.64(b)(6) and 18.65(a)(4) - fails, after being served with proper notice, to appear for that person's deposition; or
(B) A party, after being properly served with interrogatories under § 18.60 or a request for inspection under § 18.61, fails to serve its answers, objections, or written response.
(ii) Certification. A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without the judge's action.
(2) Unacceptable excuse for failing to act. A failure described in paragraph (d)(1)(i) of this section is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under § 18.52(a).
(3) Types of sanctions. Sanctions may include any of the orders listed in paragraph (b)(1) of this section.
(e) Failure to provide electronically stored information. Absent exceptional circumstances, a judge may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.
(f) Procedure. A judge may impose sanctions under this section upon:
(1) A separately filed motion; or
(2) Notice from the judge followed by a reasonable opportunity to be heard.
(a) In general - (1) Number. Unless otherwise stipulated or ordered by the judge, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with § 18.51.
(2) Scope. An interrogatory may relate to any matter that may be inquired into under § 18.51. An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the judge may order that the interrogatory need not be answered until designated discovery is complete, or until a prehearing conference or some other time.
(b) Answers and objections - (1) Responding party. The interrogatories must be answered:
(i) By the party to whom they are directed; or
(ii) If that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who must furnish the information available to the party.
(2) Time to respond. The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. A shorter or longer time may be stipulated to under § 18.54 or be ordered by the judge.
(3) Answering each interrogatory. Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.
(4) Objections. The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the judge, for good cause, excuses the failure.
(5) Signature. The person who makes the answers must sign them, and the attorney or non-attorney representative who objects must sign any objections.
(c) Use. An answer to an interrogatory may be used to the extent allowed by the applicable rules of evidence.
(d) Option to produce business records. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by:
(1) Specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and
(2) Giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.
§ 18.61 - Producing documents, electronically stored information, and tangible things, or entering onto land, for inspection and other purposes.
(a) In general. A party may serve on any other party a request within the scope of § 18.51:
(1) To produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control:
(i) Any designated documents or electronically stored information - including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations - stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or
(ii) Any designated tangible things; or
(2) To permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
(b) Procedure - (1) Contents of the request. The request:
(i) Must describe with reasonable particularity each item or category of items to be inspected;
(ii) Must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and
(iii) May specify the form or forms in which electronically stored information is to be produced.
(2) Responses and objections - (i) Time to respond. The party to whom the request is directed must respond in writing within 30 days after being served. A shorter or longer time may be stipulated to under § 18.54 or be ordered by the judge.
(ii) Responding to each item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons.
(iii) Objections. An objection to part of a request must specify the part and permit inspection of the rest.
(iv) Responding to a request for production of electronically stored information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form - or if no form was specified in the request - the party must state the form or forms it intends to use.
(v) Producing the documents or electronically stored information. Unless otherwise stipulated or ordered by the judge, these procedures apply to producing documents or electronically stored information:
(A) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;
(B) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and
(C) A party need not produce the same electronically stored information in more than one form.
(c) Nonparties. As provided in § 18.56, a nonparty may be compelled to produce documents and tangible things or to permit an inspection.
(a) Examination by notice - (1) In general. A party may serve upon another party whose mental or physical condition is in controversy a notice to attend and submit to an examination by a suitably licensed or certified examiner.
(2) Contents of the notice. The notice must specify:
(i) The legal basis for the examination;
(ii) The time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it; and
(iii) How the reasonable transportation expenses were calculated.
(3) Service of notice. Unless otherwise agreed by the parties, the notice must be served no fewer than 30 days before the examination date.
(4) Objection. The person to be examined must serve any objection to the notice no later than 14 days after the notice is served. The objection must be stated with particularity.
(b) Examination by motion. Upon objection by the person to be examined the requesting party may file a motion to compel a physical or mental examination. The motion must include the elements required by paragraph (a)(2) of this section.
(c) Examiner's report - (1) Delivery of the report. The party who initiated the examination must deliver a complete copy of the examination report to the party examined no later than seven days after it receives the report, together with like reports of all earlier examinations of the same condition.
(2) Contents. The examiner's report must be in writing and must set out in detail the examiner's findings, including diagnoses, conclusions, and the results of any tests.
(a) Scope and procedure - (1) Scope. A party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of § 18.51 relating to:
(i) Facts, the application of law to fact, or opinions about either; and
(ii) The genuineness of any described documents.
(2) Form; copy of a document. Each matter must be separately stated. A request to admit the genuineness of a document must be accompanied by a copy of the document unless it is, or has been, otherwise furnished or made available for inspection and copying.
(3) Time to respond; effect of not responding. A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for responding may be stipulated to under § 18.54 or be ordered by the judge.
(4) Answer. If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny.
(5) Objections. The grounds for objecting to a request must be stated. A party must not object solely on the ground that the request presents a genuine issue for hearing.
(6) Motion regarding the sufficiency of an answer or objection. The requesting party may move to determine the sufficiency of an answer or objection. Unless the judge finds an objection justified, the judge must order that an answer be served. On finding that an answer does not comply with this section, the judge may order either that the matter is admitted or that an amended answer be served. The judge may defer final decision until a prehearing conference or a specified time before the hearing.
(b) Effect of an admission; withdrawing or amending it. A matter admitted under this section is conclusively established unless the judge, on motion, permits the admission to be withdrawn or amended. The judge may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the judge is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. An admission under this section is not an admission for any other purpose and cannot be used against the party in any other proceeding.
(a) When a deposition may be taken - (1) Without leave. A party may, by oral questions, depose any person, including a party, without leave of the judge except as provided in paragraph (a)(2) of this section. The deponent's attendance may be compelled by subpoena under § 18.56.
(2) With leave. A party must obtain leave of the judge, and the judge must grant leave to the extent consistent with § 18.51(b):
(i) If the parties have not stipulated to the deposition and:
(A) The deposition would result in more than 10 depositions being taken under this section or § 18.65 by one of the parties;
(B) The deponent has already been deposed in the case; or
(C) The party seeks to take the deposition before the time specified in § 18.50(a), unless the party certifies in the notice, with supporting facts, that the deponent is expected to leave the United States and be unavailable for examination in this country after that time; or
(ii) If the deponent is confined in prison.
(b) Notice of the deposition; other formal requirements - (1) Notice in general. Except as stipulated or otherwise ordered by the judge, a party who wants to depose a person by oral questions must give reasonable written notice to every other party of no fewer than 14 days. The notice must state the time and place of the deposition and, if known, the deponent's name and address. If the name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs.
(2) Producing documents. If a subpoena duces tecum is to be served on the deponent, the materials designated for production, as set out in the subpoena, must be listed in the notice or in an attachment. If the notice to a party deponent is accompanied by a request for production under § 18.61, the notice must comply with the requirements of § 18.61(b).
(3) Method of recording - (i) Method stated in the notice. The party who notices the deposition must state in the notice the method for recording the testimony. Unless the judge orders otherwise, testimony may be recorded by audio, audiovisual, or stenographic means. The noticing party bears the recording costs. Any party may arrange to transcribe a deposition.
(ii) Additional method. With prior notice to the deponent and other parties, any party may designate another method for recording the testimony in addition to that specified in the original notice. That party bears the expense of the additional record or transcript unless the judge orders otherwise.
(4) By remote means. The parties may stipulate - or the judge may on motion order - that a deposition be taken by telephone or other remote means. For the purpose of this section, the deposition takes place where the deponent answers the questions.
(5) Deposition officer's duties - (i) Before the deposition. Unless the parties stipulate otherwise, a deposition must be conducted before a person having power to administer oaths. The officer must begin the deposition with an on-the-record statement that includes:
(A) The officer's name and business address;
(B) The date, time, and place of the deposition;
(C) The deponent's name;
(D) The officer's administration of the oath or affirmation to the deponent;
(E) The identity of all persons present; and
(F) The date and method of service of the notice of deposition.
(ii) Conducting the deposition; avoiding distortion. If the deposition is recorded nonstenographically, the officer must repeat the items in paragraphs (b)(5)(i)(A) and (B) of this section at the beginning of each unit of the recording medium. The deponent's and attorneys' appearance or demeanor must not be distorted through recording techniques.
(iii) After the deposition. At the end of a deposition, the officer must state on the record that the deposition is complete and must set out any stipulations made by the attorneys about custody of the transcript or recording and of the exhibits, or about any other pertinent matters.
(6) Notice or subpoena directed to an organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (b)(6) does not preclude a deposition by any other procedure allowed by these rules.
(c) Examination and cross-examination; record of the examination; objections; written questions - (1) Examination and cross-examination. The examination and cross-examination of a deponent proceed as they would at the hearing under the applicable rules of evidence. After putting the deponent under oath or affirmation, the officer must record the testimony by the method designated under paragraph (b)(3)(i) of this section. The testimony must be recorded by the officer personally or by a person acting in the presence and under the direction of the officer.
(2) Objections. An objection at the time of the examination - whether to evidence, to a party's conduct, to the officer's qualifications, to the manner of taking the deposition, or to any other aspect of the deposition - must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the judge, or to present a motion under paragraph (d)(3) of this section.
(3) Participating through written questions. Instead of participating in the oral examination, a party may serve written questions in a sealed envelope on the party noticing the deposition, who must deliver them to the officer. The officer must ask the deponent those questions and record the answers verbatim.
(d) Duration; sanction; motion to terminate or limit - (1) Duration. Unless otherwise stipulated or ordered by the judge, a deposition is limited to 1 day of 7 hours. The judge must allow additional time consistent with § 18.51(b) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.
(2) Sanction. The judge may impose an appropriate sanction, in accordance with § 18.57, on a person who impedes, delays, or frustrates the fair examination of the deponent.
(3) Motion to terminate or limit - (i) Grounds. At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.
(ii) Order. The judge may order that the deposition be terminated or may limit its scope and manner as provided in § 18.52. If terminated, the deposition may be resumed only by the judge's order.
(e) Review by the witness; changes - (1) Review; statement of changes. On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which:
(i) To review the transcript or recording; and
(ii) If there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.
(2) Changes indicated in the officer's certificate. The officer must note in the certificate prescribed by paragraph (f)(1) of this section whether a review was requested and, if so, must attach any changes the deponent makes during the 30-day period.
(f) Certification and delivery; exhibits; copies of the transcript or recording; filing - (1) Certification and delivery. The officer must certify in writing that the witness was duly sworn and that the deposition accurately records the witness's testimony. The certificate must accompany the record of the deposition. Unless the judge orders otherwise, the officer must seal the deposition in an envelope or package bearing the title of the action and marked “Deposition of [witness's name]” and must promptly send it to the party or the party's representative who arranged for the transcript or recording. The party or the party's representative must store it under conditions that will protect it against loss, destruction, tampering, or deterioration.
(2) Documents and tangible things - (i) Originals and copies. Documents and tangible things produced for inspection during a deposition must, on a party's request, be marked for identification and attached to the deposition. Any party may inspect and copy them. But if the person who produced them wants to keep the originals, the person may:
(A) Offer copies to be marked, attached to the deposition, and then used as originals - after giving all parties a fair opportunity to verify the copies by comparing them with the originals; or
(B) Give all parties a fair opportunity to inspect and copy the originals after they are marked - in which event the originals may be used as if attached to the deposition.
(ii) Order regarding the originals. Any party may move for an order that the originals be attached to the deposition pending final disposition of the proceeding.
(3) Copies of the transcript or recording. Unless otherwise stipulated or ordered by the judge, the officer must retain the stenographic notes of a deposition taken stenographically or a copy of the recording of a deposition taken by another method. When paid reasonable charges, the officer must furnish a copy of the transcript or recording to any party or the deponent.
(4) Notice of filing. A party who files the deposition must promptly notify all other parties of the filing.
(g) Failure to attend a deposition or serve a subpoena. A judge may order sanctions, in accordance with § 18.57, if a party who, expecting a deposition to be taken, attends in person or by an attorney, and the noticing party failed to:
(1) Attend and proceed with the deposition; or
(2) Serve a subpoena on a nonparty deponent, who consequently did not attend.
(a) When a deposition may be taken - (1) Without leave. A party may, by written questions, depose any person, including a party, without leave of the judge except as provided in paragraph (a)(2) of this section. The deponent's attendance may be compelled by subpoena under § 18.56.
(2) With leave. A party must obtain leave of the judge, and the judge must grant leave to the extent consistent with § 18.51(b):
(i) If the parties have not stipulated to the deposition and:
(A) The deposition would result in more than 10 depositions being taken under this section or § 18.64 by a party;
(B) The deponent has already been deposed in the case; or
(C) The party seeks to take a deposition before the time specified in § 18.50(a); or
(ii) If the deponent is confined in prison.
(3) Service; required notice. A party who wants to depose a person by written questions must serve them on every other party, with a notice stating, if known, the deponent's name and address. If the name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs. The notice must also state the name or descriptive title and the address of the officer before whom the deposition will be taken.
(4) Questions directed to an organization. A public or private corporation, a partnership, an association, or a governmental agency may be deposed by written questions in accordance with § 18.64(b)(6).
(5) Questions from other parties. Any questions to the deponent from other parties must be served on all parties as follows: cross-questions, within 14 days after being served with the notice and direct questions; redirect questions, within 7 days after being served with cross-questions; and recross-questions, within 7 days after being served with redirect questions. The judge may, for good cause, extend or shorten these times.
(b) Delivery to the deposition officer; officer's duties. Unless a different procedure is ordered by the judge, the party who noticed the deposition must deliver to the officer a copy of all the questions served and of the notice. The officer must promptly proceed in the manner provided in § 18.64(c), (e), and (f) to:
(1) Take the deponent's testimony in response to the questions;
(2) Prepare and certify the deposition; and
(3) Send it to the party, attaching a copy of the questions and of the notice.
(c) Notice of completion or filing - (1) Completion. The party who noticed the deposition must notify all other parties when it is completed.
(2) Filing. A party who files the deposition must promptly notify all other parties of the filing.
(a) In general. When consistent with statute, regulation or executive order, any party may move under § 18.33 for disposition of the pending proceeding. If the judge determines at any time that subject matter jurisdiction is lacking, the judge must dismiss the matter.
(b) Motion to remand. A party may move to remand the matter to the referring agency. A remand order must include any terms or conditions and should state the reason for the remand.
(c) Motion to dismiss. A party may move to dismiss part or all of the matter for reasons recognized under controlling law, such as lack of subject matter jurisdiction, failure to state a claim upon which relief can be granted, or untimeliness. If the opposing party fails to respond, the judge may consider the motion unopposed.
(d) Motion for decision on the record. When the parties agree that an evidentiary hearing is not needed, they may move for a decision based on stipulations of fact or a stipulated record.
(a) Motion for approval of settlement agreement. When the applicable statute or regulation requires it, the parties must submit a settlement agreement for the judge's review and approval.
(b) Motion for consent findings and order. Parties may file a motion to accept and adopt consent findings. Any agreement that contains consent findings and an order that disposes of all or part of a matter must include:
(1) A statement that the order has the same effect as one made after a full hearing;
(2) A statement that the order is based on a record that consists of the paper that began the proceeding (such as a complaint, order of reference, or notice of administrative determination), as it may have been amended, and the agreement;
(3) A waiver of any further procedural steps before the judge; and
(4) A waiver of any right to challenge or contest the validity of the order entered into in accordance with the agreement.
(a) Motion for summary decision or partial summary decision. A party may move for summary decision, identifying each claim or defense - or the part of each claim or defense - on which summary decision is sought. The judge shall grant summary decision if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to decision as a matter of law. The judge should state on the record the reasons for granting or denying the motion.
(b) Time to file a motion. Unless the judge orders otherwise, a party may file a motion for summary decision at any time until 30 days before the date fixed for the formal hearing.
(c) Procedures - (1) Supporting factual positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(i) Citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(ii) Showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) Objection that a fact is not supported by admissible evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
(3) Materials not cited. The judge need consider only the cited materials, but the judge may consider other materials in the record.
(4) Affidavits or declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.
(d) When facts are unavailable to the nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the judge may:
(1) Defer considering the motion or deny it;
(2) Allow time to obtain affidavits or declarations or to take discovery; or
(3) Issue any other appropriate order.
(e) Failing to properly support or address a fact. If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by paragraph (c) of this section, the judge may:
(1) Give an opportunity to properly support or address the fact;
(2) Consider the fact undisputed for purposes of the motion;
(3) Grant summary decision if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it; or
(4) Issue any other appropriate order.
(f) Decision independent of the motion. After giving notice and a reasonable time to respond, the judge may:
(1) Grant summary decision for a nonmovant;
(2) Grant the motion on grounds not raised by a party; or
(3) Consider summary decision on the judge's own after identifying for the parties material facts that may not be genuinely in dispute.
(g) Failing to grant all the requested relief. If the judge does not grant all the relief requested by the motion, the judge may enter an order stating any material fact - including an item of damages or other relief - that is not genuinely in dispute and treating the fact as established in the case.
(h) Affidavit or declaration submitted in bad faith. If satisfied that an affidavit or declaration under this section is submitted in bad faith or solely for delay, the judge - after notice and a reasonable time to respond - may order sanctions or other relief as authorized by law.
(a) Time for filing. Unless the judge orders otherwise, at least 21 days before the hearing, each participating party must file a prehearing statement.
(b) Required conference. Before filing a prehearing statement, the party must confer with all other parties in good faith to:
(1) Stipulate to the facts to the fullest extent possible; and
(2) Revise exhibit lists, eliminate duplicative exhibits, prepare joint exhibits, and attempt to resolve any objections to exhibits.
(c) Contents. Unless ordered otherwise, the prehearing statement must state:
(1) The party's name;
(2) The issues of law to be determined with reference to the appropriate statute, regulation, or case law;
(3) A precise statement of the relief sought;
(4) The stipulated facts that require no proof;
(5) The facts disputed by the parties;
(6) A list of witnesses the party expects to call;
(7) A list of the joint exhibits;
(8) A list of the party's exhibits;
(9) An estimate of the time required for the party to present its case-in-chief; and
(10) Any additional information that may aid the parties' preparation for the hearing or the disposition of the proceeding, such as the need for specialized equipment at the hearing.
(d) Joint prehearing statement. The judge may require the parties to file a joint prehearing statement rather than individual prehearing statements.
(e) Signature. The prehearing statement must be in writing and signed. By signing, an attorney, representative, or party makes the certifications described in § 18.50(d).
(a) Public. Hearings are open to the public. But, when authorized by law and only to the minimum extent necessary, the judge may order a hearing or any part of a hearing closed to the public, including anticipated witnesses. The order closing all or part of the hearing must state findings and explain why the reasons for closure outweigh the presumption of public access. The order and any objection must be part of the record.
(b) Taking testimony. Unless a closure order is issued under paragraph (a) of this section, the witnesses' testimony must be taken in an open hearing. For good cause and with appropriate safeguards, the judge may permit testimony in an open hearing by contemporaneous transmission from a different location.
(c) Party participation. For good cause and with appropriate safeguards, the judge may permit a party to participate in an open hearing by contemporaneous transmission from a different location.
(a) Identification. All exhibits offered in evidence must be marked with a designation identifying the party offering the exhibit and must be numbered and paginated as the judge orders.
(b) Electronic data. By order the judge may prescribe the format for the submission of data that is in electronic form.
(c) Exchange of exhibits. When written exhibits are offered in evidence, one copy must be furnished to the judge and to each of the parties at the hearing, unless copies were previously furnished with the list of proposed exhibits or the judge directs otherwise. If the judge does not fix a date for the exchange of exhibits, the parties must exchange copies of exhibits at the earliest practicable time before the hearing begins.
(d) Authenticity. The authenticity of a document identified in a pre-hearing exhibit list is admitted unless a party files a written objection to authenticity at least 7 days before the hearing. The judge may permit a party to challenge a document's authenticity if the party establishes good cause for its failure to file a timely written objection.
(e) Substitution of copies for original exhibits. The judge may permit a party to withdraw original documents offered in evidence and substitute accurate copies of the originals.
(f) Designation of parts of documents. When only a portion of a document contains relevant matter, the offering party must exclude the irrelevant parts to the greatest extent practicable.
(g) Records in other proceedings. Portions of the record of other administrative proceedings, civil actions or criminal prosecutions may be received in evidence, when the offering party shows the copies are accurate.
(a) The parties may stipulate to any facts in writing at any stage of the proceeding or orally on the record at a deposition or at a hearing. These stipulations bind the parties unless the judge disapproves them.
(b) Every stipulation that requests or requires a judge's action must be written and signed by all affected parties or their representatives. Any stipulation to extend time must state the reason for the date change.
(c) A proposed form of order may be submitted with the stipulation; it may consist of an endorsement on the stipulation of the words, “Pursuant to stipulation, it is so ordered,” with spaces designated for the date and the signature of the judge.
On motion of a party or on the judge's own, official notice may be taken of any adjudicative fact or other matter subject to judicial notice. The parties must be given an adequate opportunity to show the contrary of the matter noticed.
(a) Exclusion. On motion of any interested person or the judge's own, the judge may limit the introduction of material into the record or issue orders to protect against undue disclosure of privileged communications, or sensitive or classified matters. The judge may admit into the record a summary or extract that omits the privileged, sensitive or classified material.
(b) Sealing the record. (1) On motion of any interested person or the judge's own, the judge may order any material that is in the record to be sealed from public access. The motion must propose the fewest redactions possible that will protect the interest offered as the basis for the motion. A redacted copy or summary of any material sealed must be made part of the public record unless the necessary redactions would be so extensive that the public version would be meaningless, or making even a redacted version or summary available would defeat the reason the original is sealed.
(2) An order that seals material must state findings and explain why the reasons to seal adjudicatory records outweigh the presumption of public access. Sealed materials must be placed in a clearly marked, separate part of the record. Notwithstanding the judge's order, all parts of the record remain subject to statutes and regulations pertaining to public access to agency records.
Participants must conduct themselves in an orderly manner. The consumption of food or beverage, and rearranging courtroom furniture are prohibited, unless specifically authorized by the judge. Electronic devices must be silenced and must not disrupt the proceedings. Parties, witnesses and spectators are prohibited from using video or audio recording devices to record hearings.
(a) In general. All persons appearing in proceedings must act with integrity and in an ethical manner.
(b) Exclusion for misconduct. During the course of a proceeding, the judge may exclude any person - including a party or a party's attorney or non-attorney representative - for contumacious conduct such as refusal to comply with directions, continued use of dilatory tactics, refusal to adhere to reasonable standards of orderly or ethical conduct, failure to act in good faith, or violation of the prohibition against ex parte communications. The judge must state the basis for the exclusion.
(c) Review of representative's exclusion. Any representative excluded from a proceeding may appeal to the Chief Judge for reinstatement within 7 days of the exclusion. The exclusion order is reviewed for abuse of discretion. The proceeding from which the representative was excluded will not be delayed or suspended pending review by the Chief Judge, except for a reasonable delay to enable the party to obtain another representative.
(a) Hearing transcript. All hearings must be recorded and transcribed. The parties and the public may obtain copies of the transcript from the official reporter at rates not to exceed the applicable rates fixed by the contract with the reporter.
(b) Corrections to the transcript. A party may file a motion to correct the official transcript. Motions for correction must be filed within 14 days of the receipt of the transcript unless the judge permits additional time. The judge may grant the motion in whole or part if the corrections involve substantive errors. At any time before issuing a decision and upon notice to the parties, the judge may correct errors in the transcript.
(a) In general. The record of a hearing closes when the hearing concludes, unless the judge directs otherwise. If any party waives a hearing, the record closes on the date the judge sets for the filing of the parties' submissions.
(b) Motion to reopen the record. (1) A motion to reopen the record must be made promptly after the additional evidence is discovered. No additional evidence may be admitted unless the offering party shows that new and material evidence has become available that could not have been discovered with reasonable diligence before the record closed. Each new item must be designated as an exhibit under § 18.82(a) and accompanied by proof that copies have been served on all parties.
(2) If the record is reopened, the other parties must have an opportunity to offer responsive evidence, and a new evidentiary hearing may be set.
(c) Motions after the decision. After the decision and order is issued, the judge retains jurisdiction to dispose of appropriate motions, such as a motion to award attorney's fees and expenses, a motion to correct the transcript, or a motion for reconsideration.
The judge may grant a party time to file a post-hearing brief with proposed findings of fact, conclusions of law, and the specific relief sought. The brief must refer to all portions of the record and authorities relied upon in support of each assertion.
At the conclusion of the proceeding, the judge must issue a written decision and order.
A motion for reconsideration of a decision and order must be filed no later than 10 days after service of the decision on the moving party.
(a) Relief pending review. If a timely motion is made for relief that the judge lacks authority to grant because a petition for review has been docketed and is pending, the judge may:
(1) Defer considering the motion;
(2) Deny the motion; or
(3) State either that the judge would grant the motion if the reviewing body remands for that purpose or that the motion raises a substantial issue.
(b) Notice to reviewing body. The movant must promptly notify the clerk of the reviewing body if the judge states that he or she would grant the motion or that the motion raises a substantial issue.
(c) Remand. The judge may decide the motion if the reviewing body remands for that purpose.
The statute or regulation that conferred hearing jurisdiction provides the procedure for review of a judge's decision. If the statute or regulation does not provide a procedure, the judge's decision becomes the Secretary's final administrative decision.