Discovery shall not be authorized except as follows:
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
- (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.
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.
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
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.
The hearing officer may require parties to file and
serve, prior to any hearing, a pre‑hearing statement that
- (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;
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]