29 CFR § 18.50 - General provisions governing disclosure and discovery.

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§ 18.50 General provisions governing disclosure and discovery.

(a) Timing and sequence of discovery—(1) Timing. A party may seek discovery at any time after a judge issues an initial notice or order. But if the judge orders the parties to confer under paragraph (b) of this section:

(i) The time to respond to any pending discovery requests is extended until the time agreed in the discovery plan, or that the judge sets in resolving disputes about the discovery plan, and

(ii) No party may seek additional discovery from any source before the parties have conferred as required by paragraph (b) of this section, except by stipulation.

(2) Sequence. Unless, on motion, the judge orders otherwise for the parties' and witnesses' convenience and in the interests of justice:

(i) Methods of discovery may be used in any sequence; and

(ii) Discovery by one party does not require any other party to delay its discovery.

(b) Conference of the parties; planning for discovery—(1) In general. The judge may order the parties to confer on the matters described in paragraphs (b)(2) and (3) of this section.

(2) Conference content; parties' responsibilities. In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by paragraph (c) of this section; discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The representatives of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the judge within 14 days after the conference a written report outlining the plan. The judge may order the parties or representatives to attend the conference in person.

(3) Discovery plan. A discovery plan must state the parties' views and proposals on:

(i) What changes should be made in the timing, form, or requirement for disclosures under paragraph (c) of this section, including a statement of when initial disclosures were made or will be made;

(ii) The subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues;

(iii) Any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced;

(iv) Any issues about claims of privilege or of protection as hearing-preparation materials, including—if the parties agree on a procedure to assert these claims after production—whether to ask the judge to include their agreement in an order;

(v) What changes should be made in the limitations on discovery imposed under these rules and what other limitations should be imposed; and

(vi) Any other orders that the judge should issue under § 18.52 or § 18.44.

(c) Required disclosures—(1) Initial disclosure—(i) In general. Except as exempted by paragraph (c)(1)(ii) of this section or otherwise ordered by the judge, a party must, without awaiting a discovery request, provide to the other parties:

(A) The name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

(B) A copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; and

(C) A computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under § 18.61 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered.

(ii) Proceedings exempt from initial disclosure. The following proceedings are exempt from initial disclosure:

(A) A proceeding under 29 CFR part 20 for review of an agency determination regarding the existence or amount of a debt, or the repayment schedule proposed by the agency;

(B) A proceeding before the Board of Alien Labor Certification Appeals under the Immigration and Nationality Act; and

(C) A proceeding under the regulations governing certification of H-2 non-immigrant temporary agricultural employment at 20 CFR part 655, subpart B;

(D) A rulemaking proceeding under the Occupational Safety and Health Act of 1970; and

(E) A proceeding for civil penalty assessments under Employee Retirement Income Security Act of 1974, 29 U.S.C. 1132.

(iii) Parties exempt from initial disclosure. The following parties are exempt from initial disclosure:

(A) In a Black Lung benefits proceeding under 30 U.S.C. 901 et seq., the representative of the Office of Workers' Compensation Programs of the Department of Labor, if an employer has been identified as the Responsible Operator and is a party to the proceeding, see 20 CFR 725.418(d); and

(B) In a proceeding under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901-950, or an associated statute such as the Defense Base Act, 42 U.S.C. 1651-1654, the representative of the Office of Workers' Compensation Programs of the Department of Labor, unless the Solicitor of Labor or the Solicitor's designee has elected to participate in the proceeding under 20 CFR 702.333(b), or unless an employer or carrier has applied for relief under the special fund, as defined in 33 U.S.C. 908(f).

(iv) Time for initial disclosures—in general. A party must make the initial disclosures required by paragraph (c)(1)(i) of this section within 21 days after an initial notice or order is entered acknowledging that the proceeding has been docketed at the OALJ unless a different time is set by stipulation or a judge's order, or a party objects during the conference that initial disclosures are not appropriate in the proceeding and states the objection in the proposed discovery plan. In ruling on the objection, the judge must determine what disclosures, if any, are to be made and must set the time for disclosure.

(v) Time for initial disclosures—for parties served or joined later. A party that is first served or otherwise joined later in the proceeding must make the initial disclosures within 21 days after being served or joined, unless a different time is set by stipulation or the judge's order. Copies of all prior disclosures must be served on a newly served or joined party within 21 days of the service or joinder.

(vi) Basis for initial disclosure; unacceptable excuses. A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.

(2) Disclosure of expert testimony—(i) In general. A party must disclose to the other parties the identity of any witness who may testify at hearing, either live or by deposition. The judge should set the time for the disclosure by prehearing order.

(ii) Witnesses who must provide a written report. Unless otherwise stipulated or ordered by the judge, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain:

(A) A complete statement of all opinions the witness will express and the basis and reasons for them;

(B) The facts or data considered by the witness in forming them;

(C) Any exhibits that will be used to summarize or support them;

(D) The witness's qualifications, including a list of all publications authored in the previous 10 years;

(E) A list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial, a hearing, or by deposition; and

(F) A statement of the compensation to be paid for the study and testimony in the case.

(iii) Witnesses who do not provide a written report. Unless otherwise stipulated or ordered by the judge that the witness is not required to provide a written report, this disclosure must state:

(A) The subject matter on which the witness is expected to present expert opinion evidence; and

(B) A summary of the facts and opinions to which the witness is expected to testify.

(iv) Supplementing the disclosure. The parties must supplement these disclosures when required under § 18.53.

(3) Prehearing disclosures. In addition to the disclosures required by paragraphs (c)(1) and (2) of this section, a party must provide to the other parties and promptly file the prehearing disclosures described in § 18.80.

(4) Form of disclosures. Unless the judge orders otherwise, all disclosures under this paragraph (c) must be in writing, signed, and served.

(d) Signing disclosures and discovery requests, responses, and objections—(1) Signature required; effect of signature. Every disclosure under paragraph (c) of this section and every discovery request, response, or objection must be signed by at least one of the party's representatives in the representative's own name, or by the party personally if unrepresented, and must state the signer's address, telephone number, facsimile number, and email address, if any. By signing, a representative or party certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry:

(i) With respect to a disclosure, it is complete and correct as of the time it is made; and

(ii) With respect to a discovery request, response, or objection, it is:

(A) Consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;

(B) Not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and

(C) Neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.

(2) Failure to sign. Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the judge must strike it unless a signature is promptly supplied after the omission is called to the representative's or party's attention.

(3) Sanction for improper certification. If a certification violates this section without substantial justification, the judge, on motion or on his or her own, must impose an appropriate sanction, as provided in § 18.57, on the signer, the party on whose behalf the signer was acting, or both.