OAR 839-050-0200
Discovery
(1)
The Administrative Law Judge has the sole discretion to order discovery by a participant in appropriate cases. This rule does not require the Administrative Law Judge to authorize any discovery. If the Administrative Law Judge does authorize discovery, the Administrative Law Judge will control the methods, timing, and extent of discovery, but nothing in this rule prevents informal exchanges of information. When the Administrative Law Judge orders discovery, the Administrative Law Judge will notify the participants of the possible sanction, pursuant to section (11) of this rule, for failure to provide the discovery ordered.(2)
Discovery may include but is not limited to one or more of the following:(a)
Disclosure of names and addresses of witnesses expected to testify at the hearing;(b)
Production of documents;(c)
Production of objects for inspection or permission to enter upon land to inspect land or other property;(d)
Written interrogatories to be served on a participant; and(e)
Requests for admission.(3)
Depositions are strongly disfavored. A factor that the Administrative Law Judge may consider in determining whether to grant a request for a deposition is whether the requesting participant demonstrates that other methods of discovery are so inadequate that the participant will be substantially prejudiced by the denial of a motion to depose a particular witness.(4)
Except as provided in sections (6) and (9) of this rule, before requesting a discovery order, a participant must seek the discovery through an informal exchange of information.(5)
Except as provided in sections (6) and (9) of this rule, a request for a discovery order must be filed with the Contested Case Coordinator, be in writing, and must include a description of the attempts to obtain the requested discovery informally. The Administrative Law Judge will consider any objections by the participant from whom discovery is sought.(6)
A participant seeking information from another participant by means of written interrogatories may serve that participant with up to 25 interrogatories to be answered by the participant served, or, in the case of a corporation, unincorporated association, or government agency, by its officer or agent. Each discrete subpart of an interrogatory will be counted as a separate interrogatory. If a clause, phrase, or adjective is logically and factually related to the overall interrogatory then it is not “discrete” and does not count as a separate interrogatory. A participant wishing to serve another participant with more than 25 interrogatories must file a motion identifying the participant to be served, setting forth a general description of the nature of the information to be sought and its relevance, and explaining why the additional interrogatories are necessary. Each interrogatory must be answered separately and fully in writing under oath, unless it is objected to, in which event the objecting party must state the reasons for objection and must answer to the extent the interrogatory is not objectionable. The answers are to be signed by the person making them. The participant served with interrogatories must serve its answers and objections, if any, within 14 days after service of the interrogatories. The Administrative Law Judge may alter the deadline for answers to interrogatories upon motion by either participant.(7)
Any discovery request must be reasonably likely to produce information that is generally relevant to the case. If the relevance of the requested discovery is not apparent, the Administrative Law Judge may require the participant requesting discovery to explain how the request is likely to produce relevant information. If the request appears unduly burdensome, the Administrative Law Judge may require an explanation of why the requested information is necessary or is likely to facilitate resolution of the case.(8)
The Administrative Law Judge will issue an order granting or denying a discovery request in whole or in part. Participants must comply with such orders and have a continuing obligation, through the close of the hearing, to provide the other participants with any newly discovered material that is within the scope of the discovery order.(9)
Unless limited by the Administrative Law Judge, the participants may issue subpoenas in support of discovery. Counsel representing a party may issue subpoenas in the same manner as subpoenas are issued in civil actions, as set forth in the Oregon Rules of Civil Procedure. The Administrative Law Judge may issue subpoenas in support of discovery for any party not represented by counsel. The Bureau of Labor and Industries may apply to the Oregon Circuit Court to compel obedience to a subpoena.(10)
A party requesting that the Administrative Law Judge issue a subpoena on its behalf must file a motion with the Contested Case Coordinator as soon as practicable after the party is served with the Notice of Hearing, but in no event less than seven days prior to the date of the hearing. The motion must include a showing of general relevance and reasonable scope of the evidence sought. If the motion is granted, the Forum will deliver the subpoena to the party that requested it. The party will then be responsible for serving the subpoena and for paying any applicable witness fees.(11)
The Administrative Law Judge may refuse to admit evidence that has not been disclosed in response to a discovery order or subpoena, unless the participant that failed to provide discovery shows good cause for having failed to do so or unless excluding the evidence would violate the duty to conduct a full and fair inquiry under ORS 183.417 (Procedure in contested case hearing)(8). If the Administrative Law Judge admits evidence that was not disclosed as ordered or subpoenaed, the Administrative Law Judge may grant a continuance to allow an opportunity for the other participant(s) to respond.(12)
The authority to order and control discovery rests solely with the Administrative Law Judge.
Source:
Rule 839-050-0200 — Discovery, https://secure.sos.state.or.us/oard/view.action?ruleNumber=839-050-0200.