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Federal Register / Vol. 86, No. 154 / Friday, August 13, 2021 / Rules and Regulations
b Upon any partys motion, the reviewing official or ALJ may be disqualified as follows:
1 The party must support the motion by an affidavit containing specific facts establishing that personal bias or other reason for disqualification exists, including the time and circumstances of the partys discovery of such facts;
2 The party must file the motion promptly after discovery of the grounds for disqualification or the objection will be deemed waived; and 3 The party, or representative of record, must certify in writing that such party makes the motion in good faith.
c Once a party has filed a motion to disqualify, the ALJ will halt the proceedings until he or she resolves the disqualification matter. If the ALJ
disqualifies the reviewing official, the ALJ will dismiss the complaint without prejudice. If the ALJ disqualifies himself or herself, the authority will promptly reassign the case to another ALJ.

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1174.18 Parties rights to review documents.

a Once the ALJ issues a hearing notice pursuant to 1174.12, and upon written request to the reviewing official, the defendant may:
1 Review any relevant and material documents, transcripts, records, and other materials that relate to the allegations set out in the complaint and upon which the investigating official based his or her findings and conclusions, unless such documents are subject to a privilege under Federal law, and obtain copies of such documents upon payment of duplication fees; and 2 Obtain a copy of all exculpatory information in the reviewing officials or investigating officials possession that relates to the allegations in the complaint, even if it appears in a document that would otherwise be privileged. If the document would otherwise be privileged, the other party only must disclose the portion containing exculpatory information.
b The notice that the reviewing official sends to the Attorney General, as described in 1174.5b, is not discoverable under any circumstances.
c If the reviewing official does not respond to the defendants request within twenty days, the defendant may file with the ALJ a motion to compel disclosure of the documents, subject to the provisions of this section. The defendant may only file such a motion with the ALJ after filing an answer pursuant to 1174.9.
1174.19

Discovery.

a Parties may conduct the following types of discovery:

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1 Requests for production of documents for inspection and copying;
2 Requests for admissions of authenticity of any relevant document or of the truth of any relevant fact;
3 Written interrogatories; and 4 Depositions.
b For the purpose of this section, the term documents includes information, documents, reports, answers, records, accounts, papers, and other data and documentary evidence.
Nothing contained herein shall be interpreted to require the creation of a document.
c Unless the parties mutually agree to discovery, a party may conduct discovery only as ordered by the ALJ.
The ALJ shall regulate the timing of discovery.
d Each party shall bear its own discovery costs.
1174.20

Discovery motions.

a Any party seeking discovery may file a motion with the ALJ together with a copy of the requested discovery, or in the case of depositions, a summary of the scope of the proposed deposition.
b Within ten days of service, a party may file an opposition to the motion and/or a motion for protective order as provided in 1174.24.
c The ALJ may grant a motion for discovery only if he or she finds that the discovery sought 1 Is necessary for the expeditious, fair, and reasonable consideration of the issues;
2 Is not unduly costly or burdensome;
3 Will not unduly delay the proceeding; and 4 Does not seek privileged information.
d The burden of showing that the ALJ should allow discovery is on the party seeking discovery.
e The ALJ may grant discovery subject to a protective order under 1174.24.
1174.21

Depositions.

a If the ALJ grants a motion for deposition, the ALJ shall issue a subpoena for the deponent, which may require the deponent to produce documents. The subpoena shall specify the time and place at which the deposition will take place.
b The party seeking to depose shall serve the subpoena in the manner prescribed by 1174.8.
c The deponent may file with the ALJ a motion to quash the subpoena or a motion for a protective order within ten days of service.
d The party seeking to depose shall provide for the taking of a verbatim
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transcript of the deposition, which it shall make available to all other parties for inspection and copying.
1174.22 Exchange of witness lists, statements, and exhibits.

a As ordered by the ALJ, the parties must exchange witness lists and copies of proposed hearing exhibits, including copies of any written statements or transcripts of deposition testimony that each party intends to offer in lieu of live testimony.
b If a party objects, the ALJ will not admit into evidence the testimony of any witness whose name does not appear on the witness list or any exhibit not provided to an opposing party in advance, unless the ALJ finds good cause for the omission or concludes that there is no prejudice to the objecting party.
c Unless a party objects within the time set by the ALJ, documents exchanged in accordance with this section are deemed to be authentic for the purpose of admissibility at the hearing.
1174.23
hearing.

Subpoenas for attendance at the
a A party wishing to procure the appearance and testimony of any individual at the hearing may request that the ALJ issue a subpoena.
b A subpoena requiring the attendance and testimony of an individual may also require the individual to produce documents at the hearing.
c A party seeking a subpoena shall file a written request no less than fifteen days before the hearing date unless otherwise allowed by the ALJ for good cause shown. Such request shall specify any documents to be produced, designate the witness, and describe the witness address and location with sufficient particularity to permit the witness to be found.
d The subpoena shall specify the time and place at which the witness is to appear and any documents the witness is to produce.
e The party seeking the subpoena shall serve it in the same manner prescribed in 1174.8. The party seeking the subpoena may serve the subpoena on a party, or upon an individual under the control of a party, by first class mail.
f The party requesting a subpoena shall pay the subpoenaed witness fees and mileage in the amounts that would be payable to a witness in a proceeding in United States District Court. A check for witness fees and mileage shall accompany the subpoena when it is served, except that when the authority
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