16 Tex. Admin. Code § 22.142 - Limitations on Discovery and Protective Orders
(a) Limitation of discovery requests. The
presiding officer may limit discovery, by order, to protect a party against
unreasonable or unwarranted discovery requests.
(1) The presiding officer may issue an order
limiting discovery requests for good cause, including the following purposes:
(A) prevention of undue delay in the
proceeding;
(B) protection from a
request to provide information which is readily available to the requesting
party at a reasonable cost;
(C)
protection from unreasonably cumulative or duplicative discovery requests;
or
(D) protection of a party or
other person from undue burden, unnecessary expense, harassment or annoyance,
or invasion of personal, constitutional, or property rights.
(2) Any person from whom discovery
is sought may file a motion for a protective order, specifying the grounds on
which a protective order is justified. Motions or responses must include
affidavits, discovery pleadings, or other pertinent documents to support the
allegations made therein.
(3) The
presiding officer may order that:
(A)
specific discovery not be sought in whole or in part, or that the extent or
subject matter of discovery be limited, or that it not be undertaken at the
time or place specified;
(B)
discovery be undertaken only by such method or upon such terms and conditions
or at the time and place directed by the presiding officer;
(C) for good cause shown, results of
discovery be sealed or otherwise adequately protected, that its distribution be
limited, or that its disclosure be restricted;
(D) information or material be protected by
any means consistent with the intent of this chapter; or
(E) information or material be protected in
the interest of justice if necessary to protect the party from undue burden,
unnecessary expense, harassment or annoyance, or invasion of personal,
constitutional, or property rights.
(4) The presiding officer may limit requests
for information (RFIs) as set out in subsection (d) of this section.
(b) Denial of right to discovery
requests. The presiding officer may deny a party the right to continue
discovery, by order, upon proof and a finding that the party abused the
discovery process.
(c) Protection
of confidential or proprietary information. The presiding officer may issue a
protective order governing the production of confidential or proprietary
information as is appropriate in each proceeding before the commission. The
order must be in the form adopted by the commission as the standard protective
order. In addition, the parties may enter into agreements regarding protection
of confidential or proprietary information. Entry of a protective order is not
a determination that any documents produced under the protective order are
proprietary or confidential.
(d)
Limitations on requests for information.
(1)
Before setting limitations on RFIs, the presiding officer must consider the
factors set out in subparagraphs (A)-(K) of this paragraph.
(A) The type of proceeding.
(B) The number and complexity of the issues
in the proceeding.
(C) The cost of
alternative forms of discovery for the party seeking discovery.
(D) The comprehensiveness of the information
provided in the application.
(E)
Any material deficiencies in the application.
(F) The number of issues that the party
seeking discovery is expected to address.
(G) The novelty of the issues in the
proceeding.
(H) The number of
answers required by requests, including subparts, propounded in similar
proceedings.
(I) Whether the number
of questions is limited in other forms of discovery.
(J) Whether the hearing on the merits will be
shortened by virtue of questions that are answered.
(K) Any jurisdictional deadlines.
(2) For purposes of calculating
the number of RFIs, each answer is considered a separate request for
information.
(3) If a party is not
required to answer a question, that question may not be included in the
calculation of whether the propounding party has reached its limit. However, if
the presiding officer determines that a party is intentionally propounding
frivolous, irrelevant, or otherwise objectionable requests, the question will
be included in the calculation of a propounding party'slimit.
(4) To discourage duplicate RFIs, any party
that does not use its entire allotment of RFIs directed toward another party
may transfer, by written notice to the presiding officer, that portion of its
allotment to any other party in the proceeding. The requirements of this
paragraph do not apply to RFIs originating from commission staff or directed to
commission staff.
(5) The presiding
officer may use discretion in determining whether to limit the number of RFIs
that may be propounded upon commission staff or the Office of Public Utility
Counsel by another party. In making this determination, the presiding officer
must consider the limited resources available to each agency, and specifically
that commission staff is required by law to represent the public interest in
all proceedings before the commission.
(6) The presiding officer may limit or expand
the number of RFIs that commission staff may propound upon any other party, and
must consider that commission staff is required by law to represent the public
interest in all proceedings before the commission, and thus may require more
questions than other parties to ensure that it adequately explores all of the
issues presented in the case.
Notes
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