29 C.F.R. §§ 18.50–18.65

§18.50. General provisions governing disclosure and discovery.

29 C.F.R. § 18.50

(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 an associated statute such as the Defense Base Act, 42 U.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.

Notes, amendments, and revision history

Source

Source: 80 FR 28785, May 19, 2015, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 571 note; E.O. 12778; 57 FR 7292.

Source

Source: 48 FR 32538, July 15, 1983, unless otherwise noted.

§18.51. Discovery scope and limits.

29 C.F.R. § 18.51

(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.

Notes, amendments, and revision history

Amendments

[80 FR 28785, May 19, 2015, as amended at 80 FR 37539, July 1, 2015]

Source

Source: 80 FR 28785, May 19, 2015, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 571 note; E.O. 12778; 57 FR 7292.

Source

Source: 48 FR 32538, July 15, 1983, unless otherwise noted.

Amendments

[80 FR 28785, May 19, 2015, as amended at 80 FR 37539, July 1, 2015]

§18.52. Protective orders.

29 C.F.R. § 18.52

(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;

and

(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.

Notes, amendments, and revision history

Source

Source: 80 FR 28785, May 19, 2015, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 571 note; E.O. 12778; 57 FR 7292.

Source

Source: 48 FR 32538, July 15, 1983, unless otherwise noted.

§18.53. Supplementing disclosures and responses.

29 C.F.R. § 18.53

(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.

Notes, amendments, and revision history

Amendments

[80 FR 28785, May 19, 2015, as amended at 80 FR 37540, July 1, 2015]

Source

Source: 80 FR 28785, May 19, 2015, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 571 note; E.O. 12778; 57 FR 7292.

Source

Source: 48 FR 32538, July 15, 1983, unless otherwise noted.

Amendments

[80 FR 28785, May 19, 2015, as amended at 80 FR 37540, July 1, 2015]

§18.54. Stipulations about discovery procedure.

29 C.F.R. § 18.54

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.

Notes, amendments, and revision history

Source

Source: 80 FR 28785, May 19, 2015, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 571 note; E.O. 12778; 57 FR 7292.

Source

Source: 48 FR 32538, July 15, 1983, unless otherwise noted.

§18.55. Using depositions at hearings.

29 C.F.R. § 18.55

(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.

Notes, amendments, and revision history

Source

Source: 80 FR 28785, May 19, 2015, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 571 note; E.O. 12778; 57 FR 7292.

Source

Source: 48 FR 32538, July 15, 1983, unless otherwise noted.

§18.56. Subpoena.

29 C.F.R. § 18.56

(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.

Notes, amendments, and revision history

Source

Source: 80 FR 28785, May 19, 2015, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 571 note; E.O. 12778; 57 FR 7292.

Source

Source: 48 FR 32538, July 15, 1983, unless otherwise noted.

§18.57. Failure to make disclosures or to cooperate in discovery; sanctions.

29 C.F.R. § 18.57

(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.

Notes, amendments, and revision history

Source

Source: 80 FR 28785, May 19, 2015, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 571 note; E.O. 12778; 57 FR 7292.

Source

Source: 48 FR 32538, July 15, 1983, unless otherwise noted.

§18.60. Interrogatories to parties.

29 C.F.R. § 18.60

(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.

Notes, amendments, and revision history

Source

Source: 80 FR 28785, May 19, 2015, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 571 note; E.O. 12778; 57 FR 7292.

Source

Source: 48 FR 32538, July 15, 1983, unless otherwise noted.

§18.61. Producing documents, electronically stored information, and tangible things, or entering onto land, for inspection and other purposes.

29 C.F.R. § 18.61

(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.

Notes, amendments, and revision history

Source

Source: 80 FR 28785, May 19, 2015, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 571 note; E.O. 12778; 57 FR 7292.

Source

Source: 48 FR 32538, July 15, 1983, unless otherwise noted.

§18.62. Physical and mental examinations.

29 C.F.R. § 18.62

(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.

Notes, amendments, and revision history

Source

Source: 80 FR 28785, May 19, 2015, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 571 note; E.O. 12778; 57 FR 7292.

Source

Source: 48 FR 32538, July 15, 1983, unless otherwise noted.

§18.63. Requests for admission.

29 C.F.R. § 18.63

(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.

Notes, amendments, and revision history

Source

Source: 80 FR 28785, May 19, 2015, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 571 note; E.O. 12778; 57 FR 7292.

Source

Source: 48 FR 32538, July 15, 1983, unless otherwise noted.

§18.64. Depositions by oral examination.

29 C.F.R. § 18.64

(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.

Notes, amendments, and revision history

Source

Source: 80 FR 28785, May 19, 2015, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 571 note; E.O. 12778; 57 FR 7292.

Source

Source: 48 FR 32538, July 15, 1983, unless otherwise noted.

§18.65. Depositions by written questions.

29 C.F.R. § 18.65

(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.

Notes, amendments, and revision history

Source

Source: 80 FR 28785, May 19, 2015, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 571 note; E.O. 12778; 57 FR 7292.

Source

Source: 48 FR 32538, July 15, 1983, unless otherwise noted.