37 CFR 11.52: Discovery

Taken from the Ninth Edition of the MPEP, Revision 07.2015, Last Revised in November 2015

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11.52    Discovery.

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]