§ 1.641How 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;
(2) Depositions as provided in paragraph (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 in a written order or during a prehearing conference. The ALJ may authorize discovery only if the party requesting discovery demonstrates:
(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) 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) of this section within 7 days after issuance of the referral notice under § 1.625(c).
(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 (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) 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 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 a 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) of this section does not apply to any person employed by or under contract with the party seeking the deposition.