---
kind: "section"
citation: "5 C.F.R. § 185.122"
title: "5"
number: "185.122"
heading: "Discovery."
url: "https://uscodex.org/cfr/5/185.122"
---

# §185.122. 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 of the truth of any relevant fact;
  - (3) Written interrogatories; and
  - (4) **Depositions.**
- (b) For the purpose of this section and [§ 185.123](/cfr/5/185.123.md), 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 are to be handled according to the following procedures—**
  - (1) A party seeking discovery may file a motion with the ALJ. Such a 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 10 days of service, a party may file an opposition to the motion and/or a motion for protective order as provided in [§ 185.125](/cfr/5/185.125.md).
  - (3) The ALJ may grant a motion for discovery only if he or she 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 [§ 185.125](/cfr/5/185.125.md).
- (e) **Depositions are to be handled in the following manner—**
  - (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 [§ 185.108](/cfr/5/185.108.md).
  - (3) The deponent may file with the ALJ within 10 days of service a motion to quash the subpoena or a motion for a protective order.
  - (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: 28 U.S.C. 2461 note; 31 U.S.C. 3801-3812.

### Source

Source: 60 FR 7891, Feb. 10, 1995, unless otherwise noted.