(a) Document requests.
(1) Any party may serve on any other party
a request to produce and permit the requesting party or its representative
to inspect or copy any discoverable documents that are in the possession,
custody, or control of the party upon whom the request is served.
In the case of a request for inspection, the responding party may
produce copies of documents or of electronically stored information
instead of permitting inspection.
(2) The request:
(i) Must describe with
reasonable particularity each item or category of items to be inspected
or produced; and
(ii) Must specify a reasonable time, place, and manner for the inspection
or production.
8-068.1
(b) Production or copying.
(1) General. Unless otherwise specified by the ALJ or agreed upon by the parties,
the producing party must produce copies of documents as they are kept
in the usual course of business or organized to correspond to the
categories of the request, and electronically stored information must
be produced in a form in which it is ordinarily maintained or in a
reasonably usable form.
(2) Costs. The producing party must
pay its own costs to respond to a discovery request, unless otherwise
agreed by the parties.
8-068.2
(c) Obligation to update responses. A party
who has responded to a discovery request with a response that was
complete when made is not required to supplement the response to include
documents thereafter acquired, unless the responding party learns:
(1) The response was materially
incorrect when made; or
(2) The response, though correct when made, is no longer true and
a failure to amend the response is, in substance, a knowing concealment.
8-068.3
(d) Motions to limit discovery.
(1) Any party that objects
to a discovery request may, within 20 days of being served with such
request, file a motion in accordance with the provisions of section
263.23 to strike or otherwise limit the request. If an objection is
made to only a portion of an item or category in a request, the portion
objected to must be specified. Any objections not made in accordance
with this paragraph and section 263.23 are waived.
(2) The party who served the request that
is the subject of a motion to strike or limit may file a written response
within ten days of service of the motion. No other party may file
a response.
8-068.4
(e) Privilege. At the time other documents are produced, the producing party must
reasonably identify all documents withheld on the grounds of privilege
and must produce a statement of the basis for the assertion of privilege.
When similar documents that are protected by attorney-client privilege,
attorney work-product doctrine, bank examination privilege, law enforcement
privilege, any government’s or government agency’s deliberative
process privilege, or any other privileges of the Constitution, any
applicable act of Congress, or the principles of common law, or are
voluminous, these documents may be identified by category instead
of by individual document. The ALJ retains discretion to determine
when the identification by category is insufficient.
8-068.5
(f) Motions to compel production.
(1) If a party withholds any documents
as privileged or fails to comply fully with a discovery request, the
requesting party may, within ten days of the assertion of privilege
or of the time the failure to comply becomes known to the requesting
party, file a motion in accordance with the provisions of section
263.23 for the issuance of a subpoena compelling production.
(2) The party who asserted
the privilege or failed to comply with the document request may file
a written response to a motion to compel within ten days of service
of the motion. No other party may file a response.
8-068.6
(g) Ruling on motions. After the time
for filing responses pursuant to this section has expired, the ALJ
will rule promptly on all motions filed pursuant to this section.
If the ALJ determines that a discovery request, or any of its terms,
calls for irrelevant material, is unreasonable, oppressive, excessive
in scope, unduly burdensome, or repetitive of previous requests, or
seeks to obtain privileged documents, the ALJ may deny or modify the
request, and may issue appropriate protective orders, upon such conditions
as justice may require. The pendency of a motion to strike or limit
discovery or to compel production is not a basis for staying or continuing
the proceeding, unless otherwise ordered by the ALJ. Notwithstanding
any other provision in this part, the ALJ may not release, or order
a party to produce, documents withheld on grounds of privilege if
the party has stated to the ALJ its intention to file a timely motion
for interlocutory review of the ALJ’s order to produce the documents,
and until the motion for interlocutory review has been decided.
8-068.7
(h) Enforcing discovery subpoenas. If the ALJ issues a subpoena compelling production of documents
by a party, the subpoenaing party may, in the event of noncompliance
and to the extent authorized by applicable law, apply to any appropriate
United States district court for an order requiring compliance with
the subpoena. A party’s right to seek court enforcement of a
subpoena will not in any manner limit the sanctions that may be imposed
by the ALJ against a party who fails to produce subpoenaed documents.
