(a) In general. In addition to the discovery permitted in subpart
A of this part, limited discovery by means of depositions will be
allowed for individuals with knowledge of facts material to the proceeding
that are not protected from discovery by any applicable privilege,
and of identified expert witnesses. Except in unusual cases, accordingly,
depositions will be permitted only of individuals identified as hearing
witnesses, including experts. All discovery depositions must be completed
within the time set forth in section 263.24(d).
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(b) Application. A party who desires
to take a deposition of any other party’s proposed witnesses,
must apply to the ALJ for the issuance of a deposition subpoena or
subpoena duces tecum. The application must state the name and address
of the proposed deponent, the subject matter of the testimony expected
from the deponent and its relevancy to the proceeding, and the address
of the place, the manner (e.g., remote means, in person), and the
time, no sooner than ten days after the service of the subpoena, for
the taking of the deposition. Any such application must be treated
as a motion subject to the rules governing motions practice set forth
in section 263.23.
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(c) Issuance
of subpoena. The ALJ must issue the requested deposition subpoena
or subpoena duces tecum upon a finding that the application satisfies
the requirements of this section and of section 263.24. If the ALJ
determines that the taking of the deposition or its proposed location
or manner is, in whole or in part, unnecessary, unreasonable, oppressive,
excessive in scope or unduly burdensome, the ALJ may deny the application
or may grant it upon such conditions as justice may require. The party
obtaining the deposition subpoena or subpoena duces tecum will be
responsible for serving it on the deponent and all parties to the
proceeding in accordance with section 263.11. A deposition subpoena
may require the witness to be deposed at any place within the country
in which that witness resides or has a regular place of employment,
by remote means, or such other convenient place or manner, as the
ALJ fixes.
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(d) Motion to quash or
modify. A person named in a deposition subpoena or subpoena duces
tecum may file a motion to quash or modify the subpoena or for the
issuance of a protective order. Such motions must be filed within
ten days following service of the subpoena, but in all cases at least
five days prior to the commencement of the scheduled deposition. The
motion must be accompanied by a statement of the reasons for granting
the motion and a copy of the motion and the statement must be served
on the party which requested the subpoena. Only the party requesting
the subpoena may file a response to a motion to quash or modify, and
any such response must be filed within five days following service
of the motion.
8-085.8
(e) Enforcement
of a deposition subpoena. Enforcement of a deposition subpoena
must be in accordance with the procedures set forth in section 263.27(d).
(f) Conduct of the deposition. The deponent must be duly sworn. By stipulation of the parties or
order by the ALJ, a court reporter or other person authorized to administer
an oath may administer the oath remotely, without being in the physical
presence of the deponent. Each party may examine the deponent with
respect to all nonprivileged, relevant, and material matters. Objections
to questions or evidence must be in the short form, stating the ground
for the objection. Failure to object to questions or evidence will
not be deemed a waiver except where the grounds for the objection
might have been avoided if the objection had been timely presented.
The discovery deposition must be transcribed or otherwise recorded
as agreed among the parties.
8-085.9
(g) Protective orders. At any time during the
taking of a discovery deposition, on the motion of any party or of
the deponent, the ALJ may terminate or limit the scope and manner
of the deposition upon a finding that grounds exist for such relief.
Grounds for terminating or limiting the taking of a discovery deposition
include a finding that the discovery deposition is being conducted
in bad faith or in such a manner as to:
(1) Unreasonably annoy, embarrass, or oppress
the deponent;
(2) Unreasonably
probe into privilege, irrelevant, or immaterial matters; or
(3) Unreasonably attempt to
pry into a party’s preparation for trial.
