33 C.F.R. Subpart F—Discovery
Title 33 - Navigation and Navigable Waters
(a) Unless the ALJ orders otherwise, each party—and each interested person who has filed written notice of intent to present evidence at any hearing in the proceeding under §20.404—shall make available to the ALJ and to every other party and interested person— (1) The name of each expert and other witness the party intends to call, together with a brief narrative summary of the expected testimony; and (2) A copy, marked as an exhibit, of each document the party intends to introduce into evidence or use in the presentation of its case. (b) During a pre-hearing conference ordered under §20.501, the ALJ may direct that the parties exchange witness lists and exhibits either at once or by correspondence. (c) The ALJ may establish a schedule for discovery and shall serve a copy of any such schedule on each party. (1) The schedule may include dates by which the parties shall both exchange witness lists and exhibits and file any requests for discovery and objections to such requests. (2) Unless the ALJ orders otherwise, the parties shall exchange witness lists and exhibits 15 days or more before hearing. (d) Further discovery may occur only by order, and then only when the ALJ determines that— (1) It will not unreasonably delay the proceeding; (2) The information sought is not otherwise obtainable; (3) The information sought has significant probative value; (4) The information sought is neither cumulative nor repetitious; and (5) The method or scope of the discovery is not unduly burdensome and is the least burdensome method available. (e) A motion for discovery must set forth— (1) The circumstances warranting the discovery; (2) The nature of the information sought; and (3) The proposed method and scope of discovery and the time and place where the discovery would occur. (f) If the ALJ determines that he or she should grant the motion, he or she shall issue an order for the discovery, together with the terms on which it will occur. (a) Any party or interested person shall amend or supplement information previously provided upon learning that the information— (1) Was incorrect or incomplete when provided; or, (2) Though correct or complete when provided, no longer is. (b) The party or interested person shall amend or supplement that information by following the procedures in §20.305. (a) Any party requesting interrogatories shall so move to the ALJ. The motion must include— (1) A statement of the purpose and scope of the interrogatories; and (2) The proposed interrogatories. (b) The ALJ shall review the proposed interrogatories, and may enter an order either— (1) Approving the service of some or all of the proposed interrogatories; or (2) Denying the motion. (c) The party requesting interrogatories shall serve on the party named in the interrogatories the approved written interrogatories. (d) Each interrogatory must be answered separately and fully in writing under oath or affirmation, unless it is objected to, in which event the party named shall state the reasons for the objection instead of a response. This party, the party's attorney, or the party's representative shall sign the party's responses to interrogatories. (e) Responses or objections must be filed within 30 days after the service of the interrogatories. (f) A response to an interrogatory is sufficient when— (1) The responder lists the records from which such answers may be derived or ascertained; and (2) The burden of ascertaining the information in a response to an interrogatory is substantially the same for all parties involved in the action; and (3) The information may be obtained from an examination, audit, or inspection of records, or from a compilation, abstract, or summary based on such records. (g) The party serving the interrogatory shall be afforded reasonable opportunity to examine, audit, or inspect the resource and to make copies, compilations, abstracts, or summaries. The specification must include sufficient detail to permit the interrogating party to locate and identify the individual records from which the answer may be ascertained. (a) Any party seeking production of documents or things for inspection or other purposes shall so move to the ALJ. The motion must state with particularity— (1) The purpose and scope of the request; and (2) The documents and materials sought. (b) The ALJ shall review the motion and enter an order approving or denying it in whole or in part. (c) A party shall serve on the party in possession, custody, or control of the documents the order to produce or to permit inspection and copying of documents. (d) A party may, after approval of an appropriate motion by the ALJ, inspect and copy, test, or sample any tangible things that contain, or may lead to, relevant information, and that are in the possession, custody, or control of the party upon whom the request is served. (e) A party may, after approval of an appropriate motion by the ALJ, serve on another party a request to permit entry upon designated property in the possession or control of the other party for the purpose of inspecting, measuring, surveying, photographing, testing, or sampling the property or any designated object or area. A request to permit entry upon property must set forth with reasonable particularity the feature to be inspected and must specify a reasonable time, place, and manner for making the inspection and performing the related acts. (f) The party upon whom the request is served shall respond within 30 days after the service of the request. Inspection and related activities will be permitted as requested, unless there are objections, in which case the reason for each objection must be stated. (a) The ALJ may order a deposition only upon a showing of good cause and upon a finding that— (1) The information sought is not obtainable more readily by alternative methods; or (2) There is a substantial reason to believe that relevant and probative evidence may otherwise not be preserved for presentation at the hearing. (b) Testimony may be taken by deposition upon approval of the ALJ of a motion made by any party. (1) The motion must state— (i) The purpose and scope of the deposition; (ii) The time and place it is to be taken; (iii) The name and address of the person before whom the deposition is to be taken; (iv) The name and address of each witness from whom a deposition is to be taken; (v) The documents and materials which the witness is to produce; and (vi) Whether it is intended that the deposition be used at a hearing instead of live testimony. (2) The motion must state if the deposition is to be by oral examination, by written interrogatories, or a combination of the two. The deposition may be taken before any disinterested person authorized to administer oaths in the place where the deposition is to be taken. (c) Upon a showing of good cause the ALJ may enter, and serve upon the parties, an order to obtain the testimony of the witness. (d) If the deposition of a public or private corporation, partnership, association, or governmental agency is ordered, the organization named must designate one or more officers, directors, or agents to testify on its behalf, and may set forth, for each person designated, the matters on which he or she will testify. Subject to the provisions of 49 CFR part 9 with respect to Coast Guard witnesses, the designated persons shall testify as to matters reasonably known to them. (e) Each witness deposed shall be placed under oath or affirmation, and the other parties shall have the right to cross-examine. (f) The witness being deposed may have counsel or another representative present during the deposition. (g) Except as provided in paragraph (n) of this section, depositions shall be stenographically recorded and transcribed at the expense of the party requesting the deposition. Unless waived by the deponent, the transcription must be read by or read to the deponent, subscribed by the deponent, and certified by the person before whom the deposition was taken. (h) Subject to objections to the questions and responses that were noted at the taking of the deposition and that would have been sustained if the witness had been personally present and testifying at a hearing, a deposition may be offered into evidence by the party taking it against any party who was present or represented at the taking of the deposition or who had notice of the deposition. (i) The party requesting the deposition shall make appropriate arrangements for necessary facilities and personnel. (j) During the taking of a deposition, a party or the witness may request suspension of the deposition on the grounds of bad faith in the conduct of the examination, oppression of the witness or party, or improper questioning or conduct. Upon request for suspension, the deposition will be adjourned. The objecting party or witness must immediately move the ALJ for a ruling on the objection(s). The ALJ may then limit the scope or manner of the taking of the deposition. (k) When a deposition is taken in a foreign country, it may be taken before a person having power to administer oaths in that location, or before a secretary of an embassy or legation, consul general, consul, vice consul or consular agent of the United States, or before such other person or officer as may be agreed upon by the parties by written stipulation filed with the ALJ. (l) Objection to taking a deposition because of the disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins, or as soon as the disqualification becomes known or could have been discovered with reasonable diligence. (m) A deposition may be taken by telephone conference call upon such terms, conditions, and arrangements as are prescribed in the order of the ALJ. (n) The testimony at a deposition hearing may be recorded on videotape, upon such terms, conditions and arrangements as are prescribed in the order of the ALJ, at the expense of the party requesting the recording. The video recording may be in conjunction with an oral examination by telephone conference held pursuant to paragraph (m) of this section. After the deposition has been taken, and copies of the video recording are provided to parties requesting them, the person recording the deposition shall immediately place the videotape in a sealed envelope or a sealed videotape container, attaching to it a statement identifying the proceeding and the deponent and certifying as to the authenticity of the video recording, and return the videotape by accountable means to the ALJ. The deposition becomes a part of the record of the proceedings in the same manner as a transcribed deposition. The videotape, if admitted into evidence, will be played during the hearing and transcribed into the record by the reporter. (a) In considering a motion for an order of discovery—or a motion, by a party or other person from whom discovery is sought, to reconsider or amend an order of discovery—the ALJ may enter any order that justice requires, to protect a person from annoyance, embarrassment, oppression, or undue burden or expense. This order may— (1) Confine discovery to specific terms and conditions, such as a particular time and place; (2) Confine discovery to a method other than that selected by the party seeking it; (3) Preclude inquiry into certain matters; (4) Direct that discovery occur with no one present except persons designated by the ALJ; (5) Preclude the disclosure of a trade secret or other proprietary information, or allow its disclosure only in a designated way or only to designated persons; or (6) Require that the person from whom discovery is sought file specific documents or information under seal for opening at the direction of the ALJ. (b) When a person from whom discovery is sought seeks a protective order, the ALJ may let him or her make all or part of the showing of good cause in camera. The ALJ shall record any proceedings in camera. If he or she enters a protective order, he or she shall seal any proceedings so recorded. These shall be releasable only as required by law. (c) Upon motion by a person from whom discovery is sought, the ALJ may— (1) Restrict or defer disclosure by a party either of the name of a witness or, if the witness comes from the Coast Guard, of any prior statement of the witness; and (2) Prescribe other appropriate measures to protect a witness. (d) The ALJ will give any party an adequate opportunity to prepare for cross-examination or other presentation concerning witnesses and statement subject to protective orders. If a party fails to provide or permit discovery, the ALJ may take such action as is just. This may include the following: (a) Infer that the testimony, document, or other evidence would have been adverse to the party. (b) Order that, for the purposes of the proceeding, designated facts are established. (c) Order that the party not introduce into evidence—or otherwise rely upon, in support of any claim or defense—the evidence that was withheld. (d) Order that the party not introduce into evidence, or otherwise use in the hearing, information obtained in discovery. (e) Allow the use of secondary evidence to show what the evidence withheld would have shown. (a) Any party may request the ALJ to issue a subpoena for the attendance of a person, the giving of testimony, or the production of books, papers, documents, or any other relevant evidence during discovery or for any hearing. Any party seeking a subpoena from the ALJ shall request its issuance by motion. (b) An ALJ may, for good cause shown, apply to the United States District Court for the issuance of an order compelling the appearance and testimony of a witness or the production of evidence. (c) A person serving a subpoena shall prepare a written statement setting forth either the date, time, and manner of service or the reason for failure of service. He or she shall swear to or affirm the statement, attach it to a copy of the subpoena, and return it to the ALJ who issued the subpoena. (d) Coast Guard investigating officers have separate subpoena power in S&R proceedings under 46 CFR 5.301. (a) A person to whom a subpoena is directed may, by motion with notice to the party requesting the subpoena, ask the ALJ to quash or modify the subpoena. (b) Except when made at a hearing, the motion must be filed: (1) 10 days or less after service of a subpoena compelling the appearance and testimony of a witness or the production of evidence or (2) At or before the time specified in the subpoena for compliance, whichever is earlier. (c) If the subpoena is served at a hearing, the person to whom it is directed may, in person at the hearing or in writing within a reasonable time fixed by the ALJ, ask the ALJ to quash or modify it. (d) The ALJ may quash or modify the subpoena if it is unreasonable or requires evidence not relevant to any matter in issue.
Title 33: Navigation and Navigable Waters
PART 20—RULES OF PRACTICE, PROCEDURE, AND EVIDENCE FOR FORMAL ADMINISTRATIVE PROCEEDINGS OF THE COAST GUARD
Subpart F—Discovery
§ 20.601 General.
§ 20.602 Amendatory or supplementary responses.
§ 20.603 Interrogatories.
§ 20.604 Requests for production of documents or things, for inspection or other purposes.
§ 20.605 Depositions.
§ 20.606 Protective orders.
§ 20.607 Sanctions for failure to comply.
§ 20.608 Subpoenas.
§ 20.609 Motions to quash or modify.
