---
kind: "section"
citation: "7 C.F.R. § 1.641"
title: "7"
number: "1.641"
heading: "How may parties obtain discovery of information needed for the case?"
url: "https://uscodex.org/cfr/7/1.641"
---

# §1.641. How may parties obtain discovery of information needed for the case?

- (a) **General.** By agreement of the parties or with the permission of the ALJ, a party may obtain discovery of information to assist the party in preparing or presenting its case. Available methods of discovery are:
  - (1) Written interrogatories as provided in [§ 1.643](/cfr/7/1.643.md);
  - (2) Depositions of witnesses as provided in [paragraph (h)](#h) of this section; and
  - (3) Requests for production of designated documents or tangible things or for entry on designated land for inspection or other purposes.
- (b) **Criteria.** Discovery may occur only as agreed to by the parties or as authorized by the ALJ during a prehearing conference or in a written order under [§ 1.640(g)](/cfr/7/1.640.md?p=g). The ALJ may authorize discovery only if the party requesting discovery demonstrates:
  - (1) That the discovery will not unreasonably delay the hearing process;
  - (2) **That the information sought—**
    - (i) Will be admissible at the hearing or appears reasonably calculated to lead to the discovery of admissible evidence;
    - (ii) Is not already in the license proceeding record or otherwise obtainable by the party;
    - (iii) Is not cumulative or repetitious; and
    - (iv) Is not privileged or protected from disclosure by applicable law;
  - (3) That the scope of the discovery is not unduly burdensome;
  - (4) That the method to be used is the least burdensome method available;
  - (5) That any trade secrets or proprietary information can be adequately safeguarded; and
  - (6) That the standards for discovery under [paragraphs (f) through (h)](#f..h) of this section have been met, if applicable.
- (c) **Motions.** A party may initiate discovery:
  - (1) Pursuant to an agreement of the parties; or
  - (2) **By filing a motion that—**
    - (i) Briefly describes the proposed method(s), purpose, and scope of the discovery;
    - (ii) Explains how the discovery meets the criteria in [paragraphs (b)(1) through (b)(6)](#b-1..b-6) of this section; and
    - (iii) Attaches a copy of any proposed discovery request (written interrogatories, notice of deposition, or request for production of designated documents or tangible things or for entry on designated land).
- (d) **Timing of motions.** A party must file any discovery motion under [paragraph (c)(2)](#c-2) of this section within 7 days after the effective date stated in the referral notice under [§ 1.626(c)(4)](/cfr/7/1.626.md?p=c-4), 43 CFR [45.26(c)(4)](/cfr/43/45.26.md?p=c-4), or [50](/cfr/43/50.md) CFR 221.26(c)(4).
- (e) **Objections.**
  - (1) A party must file any objections to a discovery motion or to specific portions of a proposed discovery request within 7 days after service of the motion.
  - (2) An objection must explain how, in the objecting party's view, the discovery sought does not meet the criteria in [paragraphs (b)(1) through (6)](#b-1..b-6) of this section.
- (f) **Materials prepared for hearing.** A party generally may not obtain discovery of documents and tangible things otherwise discoverable under [paragraph (b)](#b) of this section if they were prepared in anticipation of or for the hearing by or for another party's representative (including the party's attorney, expert, or consultant).
  - (1) If a party wants to discover such materials, it must show:
    - (i) That it has substantial need of the materials in preparing its own case; and
    - (ii) That the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.
  - (2) In ordering discovery of such materials when the required showing has been made, the ALJ must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney.
- (g) **Experts.** Unless restricted by the ALJ, a party may discover any facts known or opinions held by an expert through the methods set out in [paragraph (a)](#a) of this section concerning any relevant matters that are not privileged. Such discovery will be permitted only if:
  - (1) The expert is expected to be a witness at the hearing; or
  - (2) The expert is relied on by another expert who is expected to be a witness at the hearing, and the party shows:
    - (i) That it has a compelling need for the information; and
    - (ii) **That it cannot practicably obtain the information by other means.**
- (h) **Limitations on depositions.**
  - (1) A party may depose an expert or non-expert witness only if the party shows that the witness:
    - (i) Will be unable to attend the hearing because of age, illness, or other incapacity; or
    - (ii) Is unwilling to attend the hearing voluntarily, and the party is unable to compel the witness's attendance at the hearing by subpoena.
  - (2) [Paragraph (h)(1)(ii)](#h-1-ii) of this section does not apply to any person employed by or under contract with the party seeking the deposition.
  - (3) A party may depose a senior Department employee only if the party shows:
    - (i) That the employee's testimony is necessary in order to provide significant, unprivileged information that is not available from any other source or by less burdensome means; and
    - (ii) That the deposition would not significantly interfere with the employee's ability to perform his or her government duties.
  - (4) Unless otherwise stipulated to by the parties or authorized by the ALJ upon a showing of extraordinary circumstances, a deposition is limited to 1 day of 7 hours.
    - (i) **Completion of discovery.** All discovery must be completed within 25 days after the initial prehearing conference.

## Notes

### Authority

Authority: 16 U.S.C. 797(e), 811, 823d.

### Source

Source: 80 FR 17181, Mar. 31, 2015, unless otherwise noted.

### Authority

Authority: 5 U.S.C. 301, unless otherwise noted.