Current through Reg. 49, No. 38; September 20, 2024
(a) Parties to SOAH
proceedings shall have reasonable opportunity and methods of discovery as
described in the APA, §164.005 and §164.007(d) of the Act, and SOAH
rules.
(b) Testifying expert
witnesses. Unless otherwise agreed in writing by the parties or ordered by the
ALJ, the Board shall file a designation of testifying expert witnesses, if any,
no later than 90 days before the end of the discovery period. Other parties
shall file a designation of testifying expert witnesses, if any, no later than
45 days after the Board's designation or 60 days before the end of the
discovery period, whichever date is earlier. A party shall not be allowed to
present a testifying expert witness who has not been timely designated, except
by a pre-hearing order of the ALJ.
(1) A
designation of testifying expert witnesses shall include:
(A) the name, address, and telephone number
of each expert witness and, unless the party shows that the testifying expert
witness is not retained by, employed by, testifying as a courtesy, or otherwise
in the control of the party,
(B) a
current curriculum vitae, résumé, and bibliography of each expert
witness.
(2) Unless a
party shows that a testifying expert witness is not retained by, employed by,
testifying as a courtesy, or otherwise in the control of the party, the party
shall make the testifying expert witness available for deposition reasonably
promptly after the expert witness is designated.
(c) Remedies and Sanctions. Upon the failure
to comply with a discovery request to the extent required by the APA,
§164.005 of the Act, SOAH rules or SOAH Order, or as agreed to between the
parties in a discovery agreement, the presiding ALJ should, after notice and
hearing, make such orders in regard to the failure as are just, and such orders
may include one or more of the following:
(1)
an order granting a continuance;
(2) an order limiting or restricting the
admissibility and use of evidence, to include exclusion of evidence or
testimony;
(3) an order for payment
by a party of the actual travel, lodging, discovery expenses; hearing and court
reporter costs; but not attorney fees, incurred by an opposing party as a
result of the failure to comply with the discovery requirements;
(4) an order imposing a scheduling order
providing for discovery deadlines necessary to remedy the failure to comply
discovery requirements;
(5) an
order for remedies and sanctions agreed to by the parties in writing or on the
record;
(6) an order disallowing
further discovery of any kind or of a particular kind by the offending
party;
(7) an order holding that
designated facts be considered admitted for purposes of the
proceeding;
(8) an order refusing
to allow the offending party to support or oppose a designated claim or defense
or prohibiting the party from introducing designated matters into
evidence;
(9) an order disallowing
in whole or in part requests for relief by the offending party and excluding
evidence in support of those requests; or
(10) an order striking pleadings or
testimony, or both, in whole or in part.
