Current through Register Vol. 51, No. 6, March 22, 2024
A. Scope of
Discovery. In general, unless otherwise ordered by the Appeals Board, parties
may obtain discovery regarding any matter, not privileged, which is relevant to
the subject matter involved in the appeal:
(1) Whether it relates to the claim or
defense of the party seeking discovery or to the claim or defense of the other
party;
(2) Including the existence,
description, nature, custody, condition, and location of any books, documents,
or other tangible things;
(3)
Including any information of the witness or party, however obtained, as to the
identity and location of persons having knowledge of any discoverable
matter;
(4) Whether or not any of
these matters is already known to or otherwise obtainable by the party seeking
discovery; and
(5) Whether or not
the information will be inadmissible at the hearing, if the information sought
appears reasonably calculated to lead to the discovery of admissible
evidence.
B. Hearing
Preparation - Materials.
(1) Subject to the
provisions of §C of this regulation, a party may not obtain discovery of
documents and tangible things prepared in anticipation of litigation or for
hearing by or for another party or by or for that other party's representative
(including the party's attorney, consultant, or surety) except upon a showing
that:
(a) The materials are otherwise
discoverable under §A of this regulation;
(b) The party seeking discovery has
substantial need of the materials in the preparation of its appeal;
and
(c) The party seeking discovery
is unable without undue hardship to obtain the substantial equivalent of the
materials by other means.
(2) In ordering discovery of the materials
when the required showing has been made, the Appeals Board shall protect
against disclosure of the mental impressions, conclusions, opinions, or legal
theories of an attorney or other representative of a party concerning the
litigation.
C. Hearing
Preparation - Experts. Discovery of facts known and opinions held by experts,
otherwise discoverable under the provision of §A of this regulation and
acquired or developed in anticipation of litigation or for trial, may be
obtained only as follows:
(1) Through
interrogatories, a party may require the other party to identify each person
whom the other party expects to call as an expert witness at trial, to state
the subject matter on which the expert is expected to testify, and to state the
substance of the facts and opinions to which the expert is expected to testify
and a summary of the grounds for each opinion. Upon motion, the Appeals Board
may order further discovery by other means, subject to restrictions as to scope
and, pursuant to §C(3) of this regulation, provisions concerning fees and
expenses, that the Board deems appropriate.
(2) A party may not discover facts known or
opinions held by an expert who has been retained or specially employed by the
other party in anticipation of litigation or preparation for hearing and who is
not expected to be called as a witness at the hearing, except upon a showing of
circumstances under which it is impracticable for the party seeking discovery
to obtain facts or opinions on the same subject by other means.
(3) Unless manifest injustice would result,
the Appeals Board shall require that the party seeking discovery pay the expert
a reasonable fee for time spent in responding to discovery under §C(1) and
(2) of this regulation. With respect to discovery obtained under §C(1),
the Appeals Board may require, and with respect to discovery obtained under
§C(2), the Appeals Board shall require, the party seeking discovery to pay
the other party a fair portion of the fees and expenses reasonably incurred by
the latter party in obtaining facts and opinions from the expert.
D. When Depositions Permitted.
After an appeal has been docketed and a complaint filed, the parties may
mutually agree to, or the Appeals Board may, in response to a motion to compel,
order the taking of testimony of any person by deposition upon oral examination
or written interrogatories before an officer authorized to administer oaths at
the place of examination, for the purpose of discovery, or for use as evidence
in the appeal, or for both purposes.
E. Designation of Person to Testify. A party,
by written notice to opposing counsel, may name as the deponent a public or
private corporation, a partnership, an association, an LLC, or other entity or
government agency and describe with reasonable particularity the matters on
which examination is requested. In that event, the organization so named shall
designate one or more officers, directors, or managing agents, or other persons
who consent to testify on its behalf, and may set forth, for each person
designated, the matters on which the person will testify.
F. Orders on Depositions. The time, place,
and manner of taking depositions shall be as mutually agreed by the parties, or
failing agreement, governed by order of the Appeals Board.
G. Expenses. Except as provided for in
§C(3) of this regulation, each party shall bear its own expenses
associated with the taking of any deposition.
H. Protective Orders. The Appeals Board may
make any order which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense. Those orders
may include limitations on the scope, method, time, and place for discovery,
and provisions for protecting the secrecy of confidential information or
documents.
I. Deposition - Use;
General.
(1) When May be Used. At the
evidentiary hearing or in support of a motion, any part or all of a deposition,
so far as admissible under the rules of evidence, applied as though the witness
was present and testifying may be used in accordance with any one of the
following provisions:
(a) Contradiction and
Impeachment. Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of deponent as a witness.
(b) By Adverse Party. The deposition of a
party or of anyone who at the time of taking the deposition was an officer,
director, managing agent, or a person designated under §E of this chapter,
to testify on behalf of a public or private corporation, partnership,
association, LLC, or other entity or government agency which is a party may be
used by an adverse party for any purpose.
(c) Witness Not Available-Exceptional
Circumstances. The deposition of a witness, whether or not a party, may be used
by any party for any purpose against the other party provided the latter party
was present or represented at the taking of the deposition or had due notice
thereof, if the Appeals Board finds:
(i) That
the witness is dead;
(ii) That the
witness is out of the State, unless it appears that the absence of the witness
was procured by the party offering the deposition;
(iii) That the witness is unable to testify
because of age, mental incapacity, sickness, infirmity, or imprisonment;
or
(iv) Upon application and
notice, that such exceptional circumstances exist as to make it desirable, in
the interest of justice and with due regard to the importance of presenting the
testimony of witnesses orally in open court, to allow the deposition to be
used.
(d) Use of Part of
Deposition. If only part of a deposition is offered in evidence by a party, the
other party may require him to introduce any other part which ought in fairness
to be considered with the part introduced.
(e) Deposition Taken in Previous
Action-Substitution of Party. Substitution of a party does not affect the right
to use depositions previously taken. When an action in any court of this State
has been dismissed and another action involving the same subject matter is
afterward brought to the Appeals Board by the same parties, or their
representatives or successors in interest, all depositions lawfully taken in
the former action may be used in the latter as if originally taken
therefor.
(2) Effect of
Deposition. A party is not deemed to make a person the party's own witness for
any purpose by taking the person's deposition. The introduction in evidence of
the deposition or any part of it for any purpose other than as permitted in
§I(1)(a) and (b) of this regulation makes the deponent the witness of the
party introducing the deposition. At the hearing, any party may rebut any
relevant evidence contained in a deposition whether introduced by that party or
the other party.
