Discovery shall not be authorized except as follows:
- (a) After an answer is filed under § 11.36 and when a party establishes that discovery is reasonable and relevant, the hearing officer, under such conditions as he or she deems appropriate, may order an opposing party to:
- (1) Answer a reasonable number of written requests for admission or interrogatories;
- (2) Produce for inspection and copying a reasonable number of documents; and
- (3) Produce for inspection a reasonable number of things other than documents.
- (b) Discovery shall not be authorized under paragraph (a) of this section of any matter which:
- (1) Will be used by another party solely for impeachment;
- (2) Is not available to the party under 35 U.S.C. 122;
- (3) Relates to any other disciplinary proceeding;
- (4) Relates to experts except as the hearing officer may require under paragraph (e) of this section;
- (5) Is privileged; or
- (6) Relates to mental impressions, conclusions, opinions, or legal theories of any attorney or other representative of a party.
- (c) The hearing officer may deny discovery requested under paragraph (a) of this section if the discovery sought:
- (1) Will unduly delay the disciplinary proceeding;
- (2) Will place an undue burden on the party required to produce the discovery sought; or
- (3) Consists of information that is available:
- (i) Generally to the public;
- (ii) Equally to the parties; or
- (iii) To the party seeking the discovery through another source.
- (d) Prior to authorizing discovery under paragraph (a) of this section, the hearing officer shall require the party seeking discovery to file a motion (§ 11.43) and explain in detail, for each request made, how the discovery sought is reasonable and relevant to an issue actually raised in the complaint or the answer.
- (e) The hearing officer may require parties to file and serve, prior to any hearing, a pre-hearing statement that contains:
- (1) A list (together with a copy) of all proposed exhibits to be used in connection with a party’s case-in-chief;
- (2) A list of proposed witnesses;
- (3) As to each proposed expert witness:
- (i) An identification of the field in which the individual will be qualified as an expert;
- (ii) A statement as to the subject matter on which the expert is expected to testify; and
- (iii) A statement of the substance of the facts and opinions to which the expert is expected to testify;
- (4) Copies of memoranda reflecting respondent’s own statements to administrative representatives.
[Added 73 FR 47650, Aug 14. 2008, effective Sept. 15, 2008]