§ 385.410Objections to discovery, motions to quash or to compel, and protective orders (Rule 410).
(a)Objection to discovery—
(1)Notice of objections or motion to quash. A participant, or a recipient of a subpoena, who does not intend to comply with a discovery request must notify in writing the participant seeking discovery within a reasonable time in advance of the date on which a response or other action in conformance with the discovery request is due. A recipient of a subpoena may either provide a notice of objection or file a motion to quash.
(2)Objections to production of documents.
(i) Unless an objection to discovery under this section is based on the ground that production would impose an undue burden, the objecting participant must provide the participant seeking discovery with a schedule of items withheld and a statement of:
(A) The character and specific subject matter of each item; and
(B) The specific objection asserted for each item.
(ii) If an objection under this section is based on the ground that production of the requested material would impose an undue burden, the objecting participant must provide the participant seeking discovery with a description of the approximate number of documents that would have to be produced and a summary of the information contained in such documents.
(3)Objections to other discovery requests. If the discovery to which objection is made is not a request for documents, the objection must clearly state the grounds on which the participant bases its objection.
(4)Objections to compile or process information. The fact that information has not been compiled or processed in the form requested is not a basis for objection unless the objection presents grounds for limiting discovery under paragraph (c) of this section.
(b)Motions to compel. Any participant seeking discovery may file a motion to compel discovery, if:
(1) A participant to whom a data request is made or upon whom an interrogatory is served under Rule 406 fails or refuses to make a full, complete, and accurate response;
(2) A person named in a notice of intent to take a deposition or a subpoena fails or refuses to appear for the deposition;
(3) An organization named in a notice of intent to take a deposition fails or refuses to designate one or more persons to testify on its behalf under Rule 404(b)(3);
(4) A deponent fails or refuses to answer fully, completely, and accurately a question propounded or to sign the transcript of the testimony as required by Rule 404(f)(2);
(5) A participant upon whom a request for admissions is served fails or refuses to respond to the request in accordance with Rule 408(b); or
(6) A participant upon whom an order to produce or to permit inspection or entry is served under Rule 407 fails or refuses to comply with that order.
(c)Orders limiting discovery. A presiding officer may, by order, deny or limit discovery or restrict public disclosure of discoverable matter in order to:
(1) Protect a participant or other person from undue annoyance, burden, harassment or oppression;
(2) Prevent undue delay in the proceeding;
(3) Preserve a privilege of a participant, person, or governmental agency;
(4) Prevent a participant from requiring another participant to provide information which is readily available to the requesting participant from other sources with a reasonable expenditure of effort given the requesting participant's position and resources;
(5) Prevent unreasonably cumulative or duplicative discovery requests; or
(6) Provide a means by which confidential matters may be made available to participants so as to prevent public disclosure. Material submitted under a protective order may nevertheless be subject to Freedom of Information Act requests and review.
(d)Privilege—1) In general. (i) In the absence of controlling Commission precedent, privileges will be determined in accordance with decisions of the Federal courts with due consideration to the Commission's need to obtain information necessary to discharge its regulatory responsibilities.
(ii) A presiding officer may not quash a subpoena or otherwise deny or limit discovery on the ground of privilege unless the presiding officer expressly finds that the privilege claimed is applicable. If a presiding officer finds that a qualified privilege has been established, the participant seeking discovery must make a showing sufficient to warrant discovery despite the qualified privilege.
(iii) A presiding officer may issue a protective order under Rule 410(c) to deny or limit discovery in order to preserve a privilege of a participant, person, or governmental agency.
(2)Of the Commission.
(i) If discovery under this subpart would require the production of Commission information, documents, or other matter that might fall within a privilege, the Commission trial staff must identify in writing the applicable privilege along with the matters claimed to be privileged or the individuals from whom privileged information is sought, to the presiding officer and the parties.
(ii) If the presiding officer determines that the privilege claimed for the Commission is applicable, the Commission information, documents, or other matter may not be produced. If the presiding officer determines that no privilege is applicable, that a privilege is waived, or that a qualified privilege is overcome, the presiding officer will certify the matter to the Commission in accordance with Rule 714. Certification to the Commission under this paragraph must describe the material to be disclosed and the reasons which, in the presiding officer's view, justify disclosure. The information will not be disclosed unless the Commission affirmatively orders the material disclosed.
[Order 225, 47 FR 19022, May 3, 1982, as amended by Order 466-A, 52 FR 35910, Sept. 24, 1987]
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