§ 962.12 (Rule 12) Depositions; interrogatories; admission of facts; production and inspection of documents.

(a) General Policy and protective orders. The parties are encouraged to engage in voluntary discovery procedures. In connection with any discovery procedure permitted under this part, the Presiding Officer may issue any order required to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Such orders may include limits on the scope, method, time, and place for discovery and provide for protecting the secrecy of confidential information or documents. Each party will bear its own discovery expenses.

(b) Depositions.

(1) After the Notice of Docketing has been issued, the parties may agree to, or the Presiding Officer may, upon application of either party and for good cause shown, order the taking of testimony of any person by deposition upon oral examination or written interrogatories before any officer authorized to administer oaths at the place of examination, for use as evidence or for discovery purposes. The application for order must specify whether the purpose of the deposition is for discovery or for use as evidence.

(2) The time, place, and manner of taking depositions should be mutually agreed to by the parties, or failing agreement, governed by order of the Presiding Officer.

(3) No testimony taken by depositions will be considered as part of the evidence in the hearing until it is offered and received in evidence at a hearing. Depositions will not ordinarily be received in evidence if the deponent is present and can testify personally at the hearing. A deposition may, however, be used to contradict or impeach the testimony of the witness given at the hearing. In cases decided on the written record, the Presiding Officer may receive depositions as evidence to supplement the record.

(c) Interrogatories to parties. After the issuance of a Notice of Docketing, a party may serve on the other party written interrogatories to be answered separately in writing, signed under oath, and returned within 30 days. Upon timely objection by a party, the Presiding Officer will determine the extent to which the interrogatories will be permitted.

(d) Admission of facts. After the issuance of a Notice of Docketing, a party may serve on the other party a request for the admission of specified facts. Within 30 days after service, the party served must answer each requested fact or object to it. The factual propositions set out in the request will be deemed admitted if a party fails to respond to the request for admission.

(e) Production and inspection of documents, electronically stored information, and tangible things. Upon motion of any party showing good cause, the Presiding Officer may order the other party to produce and permit the inspection, copying or photographing of any documents, electronically stored information, or tangible things that are not privileged. The moving party must specifically identify the requested information or items and explain their relevance and materiality to the appeal and explain how they are reasonably calculated to lead to the discovery of admissible evidence. If the parties cannot agree, the Presiding Officer will specify the terms and conditions for the inspection and copying of documents.

(f) Limitations. Under no circumstances may a discovery procedure be used to obtain:

(1) Documents, transcripts, records, or other material that a person is not entitled to review under § 962.11 (Rule 11);

(2) The notice sent to the Attorney General from the Reviewing Official under 39 CFR part 273; or

(3) Other documents privileged under Federal law.