---
kind: "section"
citation: "38 C.F.R. § 42.21"
title: "38"
number: "42.21"
heading: "Discovery."
url: "https://uscodex.org/cfr/38/42.21"
---

# §42.21. Discovery.

- (a) **The following types of discovery are authorized—**
  - (1) Requests for production of documents for inspection and copying;
  - (2) Requests for admissions of the authenticity of any relevant document or the truth of any relevant fact;
  - (3) Written interrogatories; and
  - (4) **Depositions.**
- (b) For the purpose of this section and §§ [42.22](/cfr/38/42.22.md) and [42.23](/cfr/38/42.23.md) of this part, the term “documents” includes information, documents, reports, answers, records, accounts, papers, and other data and documentary evidence. Nothing contained herein shall be interpreted to require the creation of a document.
- (c) Unless mutually agreed to by the parties, discovery is available only as ordered by the ALJ. The ALJ shall regulate the timing of discovery.
- (d) **Motions for discovery.**
  - (1) A party seeking discovery may file a motion with the ALJ. The motion shall be accompanied by a copy of the requested discovery, or in the case of depositions, a summary of the scope of the proposed deposition.
  - (2) Within ten days of service, a party may file an opposition to the motion and/or a motion for protective order as provided in [§ 42.24](/cfr/38/42.24.md) of this part.
  - (3) The ALJ may grant a motion for discovery only if the ALJ finds that the discovery sought—
    - (i) Is necessary for the expeditious, fair, and reasonable consideration of the issues;
    - (ii) Is not unduly costly or burdensome;
    - (iii) Will not unduly delay the proceeding; and
    - (iv) **Does not seek privileged information.**
  - (4) **The burden of showing that discovery should be allowed is on the party seeking discovery.**
  - (5) The ALJ may grant discovery subject to a protective order under [§ 42.24](/cfr/38/42.24.md) of this part.
- (e) **Depositions.**
  - (1) If a motion for deposition is granted, the ALJ shall issue a subpoena for the deponent, which may require the deponent to produce documents. The subpoena shall specify the time and place at which the deposition will be held.
  - (2) The party seeking to depose shall serve the subpoena in the manner prescribed in [§ 42.8](/cfr/38/42.8.md) of this part.
  - (3) The deponent may file with the ALJ a motion to quash the subpoena or a motion for a protective order within ten days of service.
  - (4) The party seeking to depose shall provide for the taking of a verbatim transcript of the deposition, which it shall make available to all other parties for inspection and copying.
- (f) Each party shall bear its own costs of discovery.

## Notes

### Authority

Authority: Pub. L. 99-509, secs. 6101-6104, 100 Stat. 1874, codified at 31 U.S.C. 3801-3812.

### Source

Source: 53 FR 16710, May 11, 1988, unless otherwise noted.