Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a)
Except as otherwise provided in subsection (a)(1), each party to an appeal,
complaint, or any other matter scheduled for an evidentiary hearing, is
entitled to serve a request for discovery on any other named party to the
complaint or appeal. All requests for discovery shall be served on the
responding party no later than 90 days after filing the appeal or complaint
with the board. The right to inspect documents and interview witnesses provided
for under Government Code section
19574.1 is
separate and distinct from a request for discovery expressed in this section
and is not governed by the provisions of this section.
(1) For appeals from Notice of Adverse Action
served pursuant to Government Code section
19574 or
19590, a
request for discovery may only be served by the Appellant or the Appellant's
representative upon the Respondent as provided for in subdivision (a). However,
a Respondent may serve a request for discovery on Appellant in said appeal no
later than 15 days after the prehearing/settlement conference solely for the
purpose of obtaining information relevant to any affirmative defense alleged by
Appellant in the prehearing/settlement conference statement. If Appellant
amends his or her prehearing/settlement conference statement after a
prehearing/settlement conference to include an affirmative defense, Respondent
may serve a request for discovery on Appellant no later than 15 days after
receiving the amended prehearing/settlement conference statement. If Appellant
alleges an affirmative defense simultaneously with filing his or her appeal, a
Respondent may serve a request for discovery on Appellant no later than 90 days
after the Respondent's receipt of Appellant's defense to the notice of proposed
action.
(b) Any party
seeking discovery beyond the 90 days from the filing of an appeal or complaint
with the board or more than 15 days after the prehearing/settlement conference
or the receipt of a prehearing/settlement conference statement, may do so only
upon an order issued by the Chief ALJ or his or her designee. The party seeking
discovery must file a petition showing good cause why they exceeded the 90, or
15, day periods, and shall attach a copy of the proposed discovery request. The
matter will be decided upon the moving papers by the assigned ALJ, in his or
her discretion, that such additional or late requests for discovery should be
permitted in the furtherance of justice. No hearing on the motion will be
scheduled.
(c) A request for
discovery may include the following:
(1) Each
party to the appeal or complaint is entitled to request and receive from any
other party to the appeal or complaint the names and home or business addresses
of percipient witnesses to the event(s) in question, to the extent known to the
other party and of individuals who may be called as witnesses during the course
of the hearing, except to the extent that disclosure of the address is
prohibited by law. The responding party may, at his or her discretion, provide
either the home or business address of the witness, except to the extent that
disclosure of the address is prohibited by law;
(2) Statements, as defined in Evidence Code
section
225, to the
extent such statements exist as of the date of the request, of witnesses
proposed to be called during the hearing by the party and of other persons
having personal knowledge of the act, omission, event, decision, condition, or
policy which are the basis for the appeal. The responding party shall, upon a
showing of good cause and subject to the discretion of the administrative law
judge, subsequently amend their witness list if they intend to call additional
witnesses not previously disclosed;
(3) All writings, as defined in Evidence Code
section
250, that
the responding party proposes to enter into evidence. The responding party
shall, upon a showing of good cause and subject to the discretion of the ALJ,
subsequently provide the requesting party with additional writings that it
proposes to enter into evidence;
(4) Any other writing or thing that is
relevant to the appeal or complaint; and
(5) Investigative reports made by or on
behalf of any party pertaining to the act, omission, event, decision, condition
or policy which is the basis for the appeal or complaint, including all
supporting materials, pertaining to the subject matter of the proceeding, to
the extent that these reports:
(A) contain
the names and home or business addresses of witnesses or other persons having
personal knowledge of the facts, omissions or events which are the basis for
the proceeding, unless disclosure of the address is prohibited by law,
or
(B) reflect matters perceived by
the investigator in the course of his or her investigation, or
(C) contain or include by attachment any
statement or writing described in subsection (c)(5) (A) to (B), inclusive, or
summary thereof.
(d) All parties receiving a request for
discovery shall produce the information requested, or shall serve a written
response on the requesting party clearly specifying which of those requested
matters will not be produced and the basis for the non-production, within 30
days of receipt of the discovery request. The parties may extend the deadline
by mutual agreement, by no more than 30 days.
(1) A responding party may object to any item
or category demanded in a request for discovery in whole or in part. The
objection must:
(A) Identify with
particularity the specific document or evidence demanded to which the objection
is made; and
(B) Set forth the
specific ground for objection, including claims of privilege, work product, or
right of privacy protection.
(C) If
an objection is based on a claim of privilege, the particular privilege invoked
shall be stated.
(D) If an
objection is based on a claim that the information sought is protected work
product, that claim shall be expressly asserted.
(2) If a responding party fails to serve a
timely response to a request for discovery:
(A) The responding party waives any objection
to the request for discovery, including one based on privilege or on the
protection for work product.
(B) At
the discretion of the assigned ALJ, a responding party may be relieved from
this waiver based upon a determination that both of the following conditions
are satisfied:
(i) The responding party has
subsequently served a response that is in substantial compliance with the
request for discovery, and
(ii) The
responding party's failure to serve a timely response was the result of
mistake, inadvertence, or excusable
neglect.
(e) Failure to produce information or
material responsive to a request for discovery may result in the exclusion of a
witness or other evidence at the discretion of the assigned ALJ. A responding
party may, at the discretion of the assigned ALJ, and upon a showing of good
cause amend a response to request for discovery no later than 30 days prior to
the evidentiary hearing.
1. New
chapter 4 (sections 59.1-59.4) and renumbering and amendment of former section
57.2 to new section 59.1 filed
8-18-2010; operative 8-18-2010 pursuant to Government Code section
11343.4
(Register 2010, No. 34).
2. Change without regulatory effect
redesignating former chapter 4 as new subarticle 4 filed 9-7-2010 pursuant to
section 100, title 1, California Code of Regulations (Register 2010, No.
37).
3. Change without regulatory effect amending subsection (a)
filed 10-28-2010 pursuant to section 100, title 1, California Code of
Regulations (Register 2010, No. 44).
4. Amendment of subsections
(a)-(b) and amendment of NOTE filed 4-12-2013; operative 4-12-2013 pursuant to
Government Code section
11343.4(b)(3)
(Register 2013, No. 15).
Note: Authority cited: Sections
18701 and
18214,
Government Code. Reference: Sections
225 and
250,
Evidence Code; and Sections
18670,
18671,
18672,
18672.1,
18673,
18675,
19683 and
19700-
19706,
Government Code.
