Current through Register Vol. 35, No. 6, March 26, 2024
A.
Timing of discovery: Unless
otherwise ordered by the hearing officer pursuant to Section 607 [now
11.5.5.607 NMAC], no discovery shall be allowed until after conclusion of the
informal administrative review.
B.
Filing not required; service and notice: Except as otherwise
provided, neither a request for discovery nor any response shall be filed with
the commission.
(1) A party requesting
discovery shall serve the discovery request upon the party from whom discovery
is sought and shall file a notice with the commission, in the format
illustrated in Section 1017 [now 11.5.5.1017 NMAC], indicating the date of
service of the discovery request, the type of discovery sought, and the party
from whom discovery is sought.
(2)
A party responding to a discovery request shall serve the response upon the
party making the request and shall file a notice with the commission, in the
format illustrated in Section 1017 [now 11.5.5.1017 nMAC], indicating the date
of service of the response, the type of discovery request to which the party is
responding, and the party upon whom the response was served.
(3) A party making or responding to a
discovery request shall, upon the request of any party other than the party
upon whom the request or response is required to be served, provide a copy of
the discovery request or response to that party.
C.
Reliance upon facts established
through discovery:
(1) A party wishing
to rely upon facts established through discovery shall:
(a) if the facts are relied upon in support
of a motion, attach the relevant documents to the motion as exhibits;
or
(b) if the facts are relied upon
at the hearing, offer the relevant documents into evidence at the
hearing.
(2) A party
seeking to compel discovery from another party, or seeking sanctions against
another party for failure to comply with a request for discovery, shall include
copies of the relevant requests and any responses thereto as exhibits to the
motion to compel or for sanctions.
D.
Continuing obligation to supplement
responses: Any party from whom discovery is sought has a continuing
obligation, subject to any objections interposed and not overruled by the
hearing officer, to supplement any responses with relevant information obtained
after serving of the initial response and any previous supplemental responses.
Unless otherwise ordered by the hearing officer, supplemental responses shall
be served within the same time, after the new information is obtained, as
required for the initial response after service of the discovery request;
provided, if the hearing is set for a time sooner than the supplemental
response would otherwise be due, the supplemental response shall be served:
(1) at least eight (8) working days prior to
the hearing, if served by first-class mail;
(2) at least six (6) working days prior to
the hearing, if served by a courier service with guaranteed overnight
delivery;
(3) at least five (5)
working days prior to the hearing, if served by hand-delivery or by facsimile
transmission; or
(4) if the new
information is obtained later than five (5) working days prior to the hearing,
by hand-delivery or facsimile transmission within one (1) working day after the
new information is obtained but in no event later than:
(a) the beginning of the hearing, if obtained
before the beginning of the hearing;
(b) the conclusion of the hearing, if
obtained after the beginning, but before the conclusion, of the hearing;
or
(c) the close of the record, if
obtained after the conclusion of the hearing but before the close of the
record.
E.
Failure to make discovery; sanctions: The hearing officer may,
upon motion by a party and a showing that another party from whom discovery was
requested has failed to respond within the required time, enter an order
requiring such other party to respond within the time specified by the hearing
officer. If a party who has been ordered to respond to a discovery request
persists in failing to respond, then upon subsequent motion by the requesting
party:
(1) the hearing officer may impose
such sanctions as may be appropriate, including:
(a) refusal to allow the testimony of a
witness not identified in a response to a request for identity of
witnesses;
(b) denial of admission
of a document not disclosed in response to a request for access to documents;
or
(c) drawing of adverse
inferences against the non-responsive party; and
(2) the commission may:
(a) order the non-responding party to pay the
requesting party's costs of compelling discovery; or
(b) order dismissal or default judgment
against the non-responding party.
