§ 185.122 Discovery

5 CFR 185.122(a)(a) The following types of discovery are authorized:

5 CFR 185.122(a)(1)(1) Requests for production of documents for inspection and copying;

5 CFR 185.122(a)(2)(2) Requests for admissions of the authenticity of any relevant document or of the truth of any relevant fact;

5 CFR 185.122(a)(3)(3) Written interrogatories; and

5 CFR 185.122(a)(4)(4) Depositions.

5 CFR 185.122(b)(b) For the purpose of this section and § 185.123, the term documents includes information, documents, reports, answers, records, accounts, papers, and other data and documentary evidence. Nothing contained herein shall be interpreted to require the creation of a document.

5 CFR 185.122(c)(c) Unless mutually agreed to by the parties, discovery is available only as ordered by the ALJ. The ALJ shall regulate the timing of discovery.

5 CFR 185.122(d)(d) Motions for discovery are to be handled according to the following procedures:

5 CFR 185.122(d)(1)(1) A party seeking discovery may file a motion with the ALJ. Such a motion shall be accompanied by a copy of the requested discovery, or in the case of depositions, a summary of the scope of the proposed deposition.

5 CFR 185.122(d)(2)(2) Within 10 days of service, a party may file an opposition to the motion and/or a motion for protective order as provided in § 185.125.

5 CFR 185.122(d)(3)(3) The ALJ may grant a motion for discovery only if he or she finds that the discovery sought:

5 CFR 185.122(d)(3)(i)(i) Is necessary for the expeditious, fair, and reasonable consideration of the issues;

5 CFR 185.122(d)(3)(ii)(ii) Is not unduly costly or burdensome;

5 CFR 185.122(d)(3)(iii)(iii) Will not unduly delay the proceeding; and

5 CFR 185.122(d)(3)(iv)(iv) Does not seek privileged information.

5 CFR 185.122(d)(4)(4) The burden of showing that discovery should be allowed is on the party seeking discovery.

5 CFR 185.122(d)(5)(5) The ALJ may grant discovery subject to a protective order under § 185.125.

5 CFR 185.122(e)(e) Depositions are to be handled in the following manner:

5 CFR 185.122(e)(1)(1) If a motion for deposition is granted, the ALJ shall issue a subpoena for the deponent, which may require the deponent to produce documents. The subpoena shall specify the time and place at which the deposition will be held.

5 CFR 185.122(e)(2)(2) The party seeking to depose shall serve the subpoena in the manner prescribed in § 185.108.

5 CFR 185.122(e)(3)(3) The deponent may file with the ALJ within 10 days of service a motion to quash the subpoena or a motion for a protective order.

5 CFR 185.122(e)(4)(4) The party seeking to depose shall provide for the taking of a verbatim transcript of the deposition, which it shall make available to all other parties for inspection and copying.

5 CFR 185.122(f)(f) Each party shall bear its own costs of discovery.