N.M. Admin. Code § 1.2.2.25 - DISCOVERY

A. Commission policy: The commission favors prompt and complete disclosure and exchange of information and encourages informal arrangements among the parties and staff for this exchange. It is further the commission's policy to encourage the timely use of discovery as a means toward effective presentations at public hearing and avoidance of the use of cross-examination at public hearing for discovery purposes.

B. Discovery procedures: Techniques of pre-hearing discovery permitted in state civil actions, such as interrogatories, requests for admissions, depositions, and requests for production of documents may be employed by staff or by any party. Upon experiencing any difficulties in obtaining discovery, staff and the parties may seek relief from the commission or presiding officer by filing a proper motion. Nothing in this rule shall preclude the commission or the presiding officer from obtaining information by order or preclude staff from obtaining information in any lawful manner.

C. Applicability of rules of civil procedure: Discovery in commission proceedings shall be governed by the New Mexico rules of civil procedure for the district courts applicable to discovery, except where such rules are inconsistent with this rule. Any references to "the court" in those rules shall be deemed to mean "the commission or presiding officer" for purposes of commission proceedings.

D. Depositions:

(1) The commission, the presiding officer, staff, and parties shall have the right to take the testimony of any witnesses by deposition and compel through the commission's subpoena powers the attendance of witnesses and the production of books, documents, papers, and accounts.

(2) Depositions may be taken and on-site inspections may be performed upon commencement of the proceeding and without prior approval of the commission or presiding officer.

(3) Notices or requests for depositions or on-site inspections shall be served on staff and on all parties unless the commission or presiding officer directs otherwise.

(4) All parties and staff may participate in any depositions, or in any on-site inspections requested by a party or staff under Subsection F of 1.2.2.25 NMAC, unless the commission or presiding officer directs otherwise.

E. Interrogatories: The staff and parties may serve upon staff or any party written interrogatories to be answered by staff or the party served, or if the party served is a public or private corporation, by any officer or agent who shall furnish such information as is available to the party.

(1) Interrogatories may be served after commencement of any proceeding and without leave of the commission or presiding officer.

(2) The interrogatories shall be answered separately and fully in writing under oath and each answer shall be signed by the person or persons making it unless otherwise ordered by the commission or presiding officer.

(3) Unless objected to, answers to interrogatories shall be served in the manner provided in Subsection H of 1.2.2.25 NMAC within fifteen (15) days after the service of the interrogatories unless the commission or presiding officer enlarges or shortens the time, or unless the party or staff submitting the interrogatories and the party or staff to which the interrogatories are directed agree to a different period of time, notice of which agreement shall be filed and served on staff and all other parties. Any such agreements shall not affect the authority of the commission or presiding officer to govern commission proceedings as provided by law.

(4) Within fifteen (15) days after service of interrogatories, staff or a party may make written objections, duly served as provided in Subsection H of 1.2.2.25 NMAC. Written objections shall:

(a) identify the interrogatory or subject matter objected to and stating with particularity the reasons for the objections; and

(b) include copies or complete restatements of the interrogatory or interrogatories objected to, and a description of the facts and circumstances and the legal authority purporting to justify the objection.

(5) The service of objections shall not excuse the answering party or staff from answering remaining interrogatories or subparts of interrogatories to which no objection is stated.

(6) Answers to interrogatories to which objection is made shall be deferred until a determination has been made on such objections.

F. Production of documents and things and entry upon land for inspection and other purposes: The commission, the presiding officer, staff, and parties may serve upon any party or upon staff requests for the production or inspection of documents or things within staff's or that party's possession, custody, or control, either consolidated with interrogatories or alone. The commission, presiding officer, staff, and parties may serve on any other party a request to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection, measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, either consolidated with the interrogatories or alone.

(1) A request may be served upon commencement of the proceeding and without leave of the commission or presiding officer.

(2) The request shall specify a reasonable time, place, and manner of making the inspection and performing related acts, or of copying the documents, or specify that copies of the designated documents be sent to the requesting party or staff in lieu of an inspection.

(3) The request shall set forth the property or items to be inspected, either by individual item or by category, and shall describe each item and category with reasonable particularity.

(4) The requestor shall specify a date for the production or inspection, which date shall be not less than fifteen (15) days after the date the request is served unless the commission or presiding officer enlarges or shortens the time or unless the party or staff submitting the request for production of documents and the party or staff to which the request is directed agree to a different period of time, notice of which agreement shall be filed and served on staff and all other parties. Any such agreements shall not affect the authority of the commission or presiding officer to govern commission proceedings as provided by law. If no time is specified production shall be due fifteen (15) days after service of the request.

(5) Within fifteen (15) days after service of a request for production staff or a party may serve written objections in the form and manner provided in Subsections E and H of 1.2.2.25 NMAC. The objector shall produce as requested all documents or things which are not the subject of an objection.

G. Requests for admissions: The commission, presiding officer, staff, or parties may serve upon any party or upon staff requests for the admission of facts or the genuineness of documents. Copies of documents shall be served with the request.

(1) Requests may be served upon commencement of the proceeding and without leave of the commission or presiding officer.

(2) Answers to requests for admissions shall be served within fifteen (15) days after service of the request unless the commission or presiding officer enlarges or shortens the time, or unless the party or staff submitting the request for admissions and the party or staff to which the request is directed agree to a different period of time, notice of which agreement shall be filed and served on staff and all other parties. Any such agreements shall not affect the authority of the commission or presiding officer to govern commission proceedings as provided by law.

(3) Written objections to a request prepared in the form and manner provided in Subsection E of 1.2.2.25 NMAC shall be filed and served as provided in Subsection H of 1.2.2.25 NMAC within fifteen (15) days of service of the requests. The filing and service of objections shall not excuse the answering party or staff from answering the remaining requests to which no objection is stated.

H. Filing and service: Interrogatories, requests for production or inspection of documents and things or entry upon lands for inspection and other purposes, and requests for admissions and other written discovery requests shall be served upon the party or staff to which such discovery is directed. Written answers, responses or objections to discovery requests shall be served on the party or staff making such requests.

(1) Discovery requests and responses, or objections thereto, and deposition transcripts, shall not be routinely filed. However, the party or staff making a discovery request shall file a certificate indicating the date of service.

(2) Unless the commission or presiding officer directs otherwise, interrogatories, requests for production or inspection of documents and things or entry upon lands for inspection and other purposes, requests for admissions and other written discovery requests or notices, as well as written responses or objections thereto, shall be served on any other party, or staff, which requests copies of such discovery requests, notices, responses or objections.

(3) Parties or staff desiring copies of the written discovery materials of other parties or of staff may request copies either in one blanket request for all discovery materials throughout the proceeding or by request specific to the discovery activity in question.

(4) At the option of the party or staff making a discovery request or response, any such request or response including objections may additionally be presented in electronic form. Discovery requests or responses, including objections, shall be presented in electronic form in addition to or in lieu of other applicable service or filing requirements of this rule if the commission or presiding officer so orders pursuant to Subsection A of 1.2.2.24 NMAC, or pursuant to other commission rules governing electronic filing and service. The commission or presiding officer shall not require electronic filing or service by any party who does not have such capability.

I. Supplementation of responses to discovery requests: A party or staff who has responded to a request for discovery is under a duty reasonably and promptly to amend or supplement their previous response if they obtain information which they would have been required to provide in such response if the information had been available to them at the time they served the response.

J. Motions to compel or for sanctions:

(1) Staff or a party may move for an order compelling discovery or for sanctions for failure to comply with an order directing that discovery be had as provided in the New Mexico rules of civil procedure for the district courts. In addition to the sanctions provided in those rules, the commission may impose the penalties set forth in applicable law, for failure to comply with an order of the commission or presiding officer.

(2) Any motion for an order compelling discovery shall include copies or complete restatements of the discovery requests or notices to which the movant seeks compelled responses or related relief, along with copies of any responses or objections to the subject discovery requests or notices, and any other pertinent materials. An original and four (4) copies of motions to compel shall be filed and copies shall be served on staff and all other parties to the proceeding.

(3) No motion to compel, or any other motion regarding any discovery dispute, shall be considered unless accompanied by a statement that the participants made a good faith effort to resolve the dispute and were unable to do so.

K. Order for protection of staff, parties, or witnesses: The commission or presiding officer may issue such orders for the protection of staff, parties, or witnesses from annoyances, embarrassment, or oppression as may be just and proper under the circumstances.

Notes

N.M. Admin. Code § 1.2.2.25

1.2.2.25 NMAC - Rp, 17 NMAC 1.2.28, 9-1-08