Discovery general provisions

Under 2200.52(a)(1) a party may obtain discovery by production/inspection, requests for admission, and interrogatories, and depositions only as provided by the rules. See the list of permitted methods in 2200.52(a)(1), including production or inspection in 2200.52(a)(1)(i), requests for admission in 2200.52(a)(1)(ii), and interrogatories in 2200.52(a)(1)(iii).

• Depositions are not generally available except as provided in 2200.56, per 2200.52(a)(1)(iv).
• If a situation is not covered specifically, the rules defer to the Federal Rules of Civil Procedure except for FRCP 26(a) which does not apply, as stated in 2200.52(a)(1)(v).

Under 2200.52(a)(3) every discovery document required to be served on a party must be served on all parties. See Service of discovery documents in 2200.52(a)(3).

• This means you cannot serve discovery on only one party and withhold it from others; serve all opposing parties at the same time.

Under 2200.52(a)(4) parties may agree to modify discovery procedures but those stipulations are limited. See 2200.52(a)(4).

• For example, the parties can agree that a deposition may be taken before any person at any time and used like any other deposition per 2200.52(a)(4)(i).
• But a stipulation that extends discovery time must be approved by the Judge or Commission if it would interfere with deadlines for completing discovery or hearing motions, per 2200.52(a)(4)(ii).

Under 2200.52 discovery must be initiated early enough so it can be completed no later than 14 days before the hearing date, unless the Judge orders otherwise. See the timing requirement in 2200.52(a).

• If parties agree to extend discovery time, the extension must not interfere with this 14-day completion deadline unless approved by the Judge or Commission under 2200.52(a)(4)(ii).
• Unreasonable delays in using discovery may result in losing the right to conduct discovery under 2200.52(h).

Under 2200.52(b) discoverable information is any non-privileged matter that is relevant to the case and proportional to its needs. See Scope of discovery in 2200.52(b).

• Proportionality considers the importance of the issues, parties' access to information, resources, and whether burden or expense outweighs benefit.
• Information need not be admissible at trial to be discoverable, as stated in 2200.52(c).

Under 2200.52(c) the Judge or Commission may limit discovery if it is unreasonably cumulative, duplicative, obtainable from another source, if the requesting party had ample prior opportunity to obtain it, or if the proposed discovery falls outside the scope in 2200.52(b). See 2200.52(c).

• Practical examples: repetitive requests for the same documents or discovery that is overly burdensome compared to its likely benefit can be curtailed under 2200.52(c)(1)-(3).

Under 2200.52(d)(1) an initial claim of privilege must state which privilege is claimed and the general nature of the material being withheld. See the claim requirements in 2200.52(d)(1).

• If asked by the Judge or on a motion to compel, the claimant must identify the information that would be disclosed, specify the privilege, allege facts showing the privilege applies, and support the claim with affidavits, depositions, or testimony.
• The claimant should also specify the relief sought, as required in 2200.52(d)(1).

Under 2200.52(d)(2) a claimant may ask the Judge to receive the allegedly privileged information in camera (closed to the public) or ex parte (without other parties) and the Judge may impose terms for that review. See 2200.52(d)(2).

• The Judge can also order that the privileged information not be disclosed until the examination is completed.
• If the Judge upholds the privilege, a protective order may be entered; if overruled, the claimant may obtain an order sealing the portions of the record pending review, per 2200.52(d)(2).

Under 2200.52(e) the Judge may issue many protective orders, including orders to deny discovery, limit its scope, change the method, restrict attendance, seal depositions, or protect trade secrets. See examples listed in 2200.52(e).

• Specific options include ordering that discovery not be had 2200.52(e)(1), limiting time or place 2200.52(e)(2), protecting trade secrets 2200.52(e)(7), or requiring sealed filings 2200.52(e)(8).

Under 2200.52(f)(1) a party may file a motion to compel discovery when another party refuses or obstructs discovery, and the motion must conform to [2200.40]. See Motions to compel discovery in 2200.52(f)(1).

• Make sure the motion follows the procedural requirements of 2200.40 (e.g., form and service rules) to avoid denial on technical grounds.

Under 2200.52(f)(2) the Judge may impose sanctions listed in Federal Rule of Civil Procedure 37, including deeming facts established, prohibiting claims or evidence, striking pleadings, staying proceedings, or dismissing the action. See these sanction examples in 2200.52(f)(2).

• Examples include an order that certain facts be taken as established 2200.52(f)(2)(i), and dismissal or default judgment 2200.52(f)(2)(iv).
• These are serious remedies intended to address refusal or obstruction of discovery.

Under 2200.52(g) discovery procedures must not be used to delay the case toward hearing, and under 2200.52(h) unreasonable delays may result in termination of the party's right to conduct discovery. See 2200.52(g) and 2200.52(h).

• The Judge can order otherwise in the interests of justice, but persistent delay can lead to losing discovery privileges or other sanctions.

Under 2200.52(i) a party must promptly supplement responses that become incorrect or that answer questions about the identity and location of knowledgeable persons or expected expert witnesses. See the supplementation rules in 2200.52(i).

• Specifically, supplement promptly for requests about persons with knowledge or expected expert witnesses per 2200.52(i)(1).
• Also supplement if you learn a prior response was incorrect when made or is no longer true such that failing to amend would be like concealment per 2200.52(i)(2).

Under 2200.52(j) discovery requests and their answers, and depositions, must be served on other counsel or parties but generally should not be filed with the Commission or Judge. See Filing of discovery in 2200.52(j).

• Exceptions exist when portions are to be used at hearing or necessary for a dispositive prehearing motion; those portions must be filed as described in 2200.52(l).

Under 2200.52(k) the party responsible for serving discovery materials must retain the original and act as the custodian. See the custody requirement in 2200.52(k).

• That custodian should preserve originals in case filings, hearings, or appeals require certified copies or review.

Under 2200.52(l) if discovery materials are to be used at the hearing or are necessary to a prehearing motion that could result in a final order, the portions to be used should be filed at the hearing outset or when the motion is filed, insofar as their use can be reasonably anticipated. See Use at hearing in 2200.52(l).

• Additional deposition procedures for hearings are in 2200.56(f).

Under 2200.52(m) when discovery documents not previously in the record are needed for review or appeal, they may be filed with the Executive Secretary of the Commission upon application and order of the Commission or Judge. See Use on review or appeal in 2200.52(m).

• You must get an order allowing those discovery materials to be filed for review or appeal purposes.

Under 2200.52(f)(2)(ii) the Judge can refuse to permit a disobedient party to support or oppose designated claims or defenses or prohibit introduction of designated matters in evidence. See this sanction in 2200.52(f)(2)(ii).

• This is a case-specific remedy used when a party's discovery misconduct justifies excluding evidence or claims.

Under 2200.52(e)(7) the Judge may order that trade secrets or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way. See 2200.52(e)(7).

• Protective measures can include redaction, sealed submissions, limited access to specified persons, or in-camera review as appropriate under 2200.52(d)(2).

Under 2200.52(a)(1)(iv) depositions are not generally available in Commission proceedings except to the extent provided in [2200.56]. See 2200.52(a)(1)(iv) and the deposition rule at 2200.56.

• Check 2200.56(f) for additional procedures on using depositions at hearings.

OSHA stated in its September 27, 2004 letter of interpretation that major settlement agreements are posted on OSHA's website and that most settlement agreements are not posted online but remain subject to FOIA. See OSHA's statement in the interpretation at OSHA website citation postings | 9/27/2004.

• The letter also notes that settlement agreements are posted in the same manner employers must post citations and notices of contest under the Commission rules cited in the letter.

Under 2200.52(k) and 2200.52(l) the serving party should retain originals as custodian and file the portions of discovery they intend to use at the hearing at the outset of the hearing or when filing a prehearing motion. See custody rule in 2200.52(k) and use-at-hearing rule in 2200.52(l).

• For depositions, follow additional procedures in 2200.56(f).

Under 2200.52(i)(1)(ii) a party must promptly supplement discovery with the identity of each person expected to be called as an expert witness, the subject matter of their testimony, and the substance of that testimony. See 2200.52(i)(1)(ii).

• Failing to supplement expert witness information promptly can lead to exclusion of that witness or other sanctions under 2200.52(f)(2).