43 C.F.R. §§ 4.112–4.119

Overview. Discovery is a prehearing process that allows a party to obtain relevant facts and information from another party during a proceeding.

Guidance. Although the Federal Rules of Civil Procedure do not apply to proceedings before DCHD, corresponding Federal discovery provisions in portions of Rules 26 through 37—and Federal case law interpreting Rules 26 through 37—may serve as guidance in administrative adjudications when not in conflict with the discovery rules in this subpart.

Scope. As authorized by an ALJ, a party may engage in discovery regarding any nonprivileged matter that is relevant to the issues in the proceeding and proportional to the needs of the case. Relevant information need not be admissible at hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Methods of discovery. During a prehearing conference, or on the motion of a party, the ALJ may authorize discovery by one or more of the following methods:

Signatures. Discovery requests must be signed by the party's representative or the party, if unrepresented. Answers and responses to discovery requests must be signed by the person providing the answers or responses on behalf of the party. Objections must be signed by the party's representative or the party, if unrepresented. A signature certifies that to the best of that person's knowledge, information, and belief formed after a reasonable inquiry that:

Limitations. At the discretion of the ALJ, or on the motion of a party, the ALJ may limit the frequency or extent of discovery authorized in §§ 4.113 through 4.116 by:

Protective orders. A protective order may be issued so that confidential, privileged, or sensitive information will not be revealed or only disclosed in a specified manner. The ALJ may issue a protective order based on a motion filed by one party or a joint motion by all parties to the proceeding. A motion for a protective order filed by one party must contain a certification that the movant conferred, or attempted to confer, with the other parties in good faith. Any responses to a motion for protective order must be filed within 14 days after filing of the motion, unless the ALJ specifies a different response period.

Cooperation. The parties are encouraged to cooperate in good faith and reach agreements, where possible, regarding the discovery process, the exchange of information, and the resolution of any discovery disputes.

Generally. When authorized by the ALJ, a party may conduct discovery by serving written interrogatories on any other party. Unless the parties agree or the ALJ orders otherwise, a party may not serve more than 20 written interrogatories on each party. For purposes of the 20-interrogatory limitation, each discrete subpart of an interrogatory counts as a separate interrogatory.

Answers and objections. Unless a longer or shorter time period is agreed to by the parties or ordered by the ALJ, answers and objections must be served within 28 days of service of the interrogatories. Each interrogatory must be answered separately and fully in writing, unless it is objected to, in whole or in part, in which event the reasons for the objection must be stated with specificity in place of the answer. Answers and objections must be signed in accordance with § 4.112(e). Answers must be signed by the person providing the answer, and objections must be signed by the party's representative or the party, if unrepresented.

Generally. When authorized by the ALJ, a party may conduct discovery by serving a written request on any other party to:

Content of request. As applicable, each request must set forth with particularity:

Responses and objections. Unless a longer or shorter time period is agreed to by the parties or ordered by the ALJ, responses and objections must be served within 28 days of receipt of the request. The response must state, with respect to each item, whether the production or inspection will be permitted as requested or whether there are any objections. If the responding party makes any objections, the reasons must be stated with specificity. Responses and objections must be signed in accordance with § 4.112(e). Responses must be signed by the person providing the response, and objections must be signed by the party's representative or the party, if unrepresented.

Generally. When authorized by the ALJ, a party may conduct discovery by serving a written request on any other party to admit the truth of any relevant factual matters or the authenticity of any specified documents. Unless the parties agree or the ALJ orders otherwise, a party may not serve more than 20 written requests for admission. For purposes of this 20-request limitation, each discrete subpart of a request counts as a separate request.

Content of request. Each matter for which an admission is requested must be set forth separately. A request to admit the authenticity of a document must be accompanied by a copy of the document unless it has been otherwise furnished or made available for inspection and copying.

Answers and objections. The party to whom the request is directed must answer or object to each matter within 28 days of being served, unless a longer or shorter time period is agreed to by the parties or ordered by the ALJ. Answers and objections must be signed in accordance with § 4.112(e). Answers must be signed by the person providing the answers, and objections must be signed by the party's representative or the party, if unrepresented. A responding party must specifically answer or object to each matter as follows:

Effect of not answering. A matter is deemed admitted unless a written answer or objection is served on the requesting party within 28 days of service of the request, except that a longer time period may be agreed to by the parties or ordered by the ALJ.

Withdrawal. A matter admitted under this section is conclusively established unless the ALJ permits, on motion, the admission to be withdrawn or amended or determines that the admission is contrary to law.

Effect of admission. An admission under this section cannot be used against the party in any other proceeding.

Generally. When authorized by the ALJ, a party may take the deposition of any person by oral examination. Parties are encouraged to schedule and conduct depositions by agreement whenever possible.

Notice of deposition. The party scheduling a deposition must give reasonable notice in writing to every party to the proceeding and to the person being examined. The notice must include:

Deposition of organization, business entity, government agency, or other entity. When the deposition of an organization, business entity, government agency, or other entity is sought, the organization, business entity, government agency, or other entity must designate one or more officers, directors, or agents to testify on its behalf.

Procedure for deposition. Depositions must be conducted, transcribed, and certified in accordance with the following procedures unless the ALJ authorizes an alternative procedure or imposes other requirements:

Procedure for preservation deposition. A party may depose a witness for the purpose of preserving testimony for hearing if:

Requirement. A party who responded to an interrogatory, request for production, or request for admission with an answer or response that was complete when made must supplement or correct a prior response in a timely manner if the party learns that the answer or response is materially incomplete or incorrect and if the additional or corrective information has not been otherwise made known to the other parties during the discovery process or in writing.

Order. At any time, an ALJ may issue an order directing the supplementation of an answer or response.

Motion. Any party may file a motion with the ALJ requesting an order compelling disclosure or discovery. A motion must include:

Response. A response to a motion to compel must be filed within 14 days of the filing of the motion unless a longer or shorter time period is ordered by the ALJ and must contain a concise statement of the facts and law supporting the response, including citations to any applicable legal authority.

Order. The ALJ may issue an order granting or denying the motion, in whole or in part, and may issue any other appropriate order, including, but not limited to, a protective order or an order imposing curative measures. Curative measures include, but are not limited to, orders extending the discovery period, authorizing additional discovery, or directing a party to conduct an additional search of its records.

Failure to comply. If a party fails to comply with an order compelling discovery, the ALJ may issue such orders as are just, including but not limited to, an order imposing appropriate sanctions under this section.

Notice. Appropriate sanctions may be imposed after notice and an opportunity to respond. The notice and opportunity to respond may be in any form directed by the ALJ and may be limited to an oral response during a prehearing conference or hearing.

Types of sanctions. After considering the relevant circumstances and the nature of the violation, the ALJ may impose appropriate sanctions, including but not limited to, the following: