§  1.729   Discovery.

   (a) Subject to paragraph (i) of this section governing Accelerated
   Docket proceedings, a complainant may file with the Commission and
   serve on a defendant, concurrently with its complaint, a request for up
   to ten written interrogatories. A defendant may file with the
   Commission and serve on a complainant, during the period starting with
   the service of the complaint and ending with the service of its answer,
   a request for up to ten written interrogatories. A complainant may file
   with the Commission and serve on a defendant, within three calendar
   days of service of the defendant's answer, a request for up to five
   written interrogatories. Subparts of any interrogatory will be counted
   as separate interrogatories for purposes of compliance with this limit.
   Requests for interrogatories filed and served pursuant to this
   procedure may be used to seek discovery of any non-privileged matter
   that is relevant to the material facts in dispute in the pending
   proceeding, provided, however, that requests for interrogatories filed
   and served by a complainant after service of the defendant's answer
   shall be limited in scope to specific factual allegations made by the
   defendant in support of its affirmative defenses. This procedure may
   not be employed for the purpose of delay, harassment or obtaining
   information that is beyond the scope of permissible inquiry related to
   the material facts in dispute in the pending proceeding.

   (b) Requests for interrogatories filed and served pursuant to paragraph
   (a) of this section shall contain a listing of the interrogatories
   requested and an explanation of why the information sought in each
   interrogatory is both necessary to the resolution of the dispute and
   not available from any other source.

   (c) A responding party shall file with the Commission and serve on the
   propounding party any opposition and objections to the requests for
   interrogatories as follows:

   (1) By the defendant, within ten calendar days of service of the
   requests for interrogatories served simultaneously with the complaint
   and within five calendar days of the requests for interrogatories
   served following service of the answer;

   (2) By the complainant, within five calendar days of service of the
   requests for interrogatories; and

   (3) In no event less than three calendar days prior to the initial
   status conference as provided for in §  1.733(a).

   (d) Commission staff will consider the requests for interrogatories,
   properly filed and served pursuant to paragraph (a) of this section,
   along with any objections or oppositions thereto, properly filed and
   served pursuant to paragraph (b) of this section, at the initial status
   conference, as provided for in §  1.733(a)(5), and at that time
   determine the interrogatories, if any, to which parties shall respond,
   and set the schedule of such response.

   (e) The interrogatories ordered to be answered pursuant to paragraph
   (d) of this section are to be answered separately and fully in writing
   under oath or affirmation by the party served, or if such party is a
   public or private corporation or partnership or association, by any
   officer or agent who shall furnish such information as is available to
   the party. The answers shall be signed by the person making them. The
   answers shall be filed with the Commission and served on the
   propounding party.

   (f) A propounding party asserting that a responding party has provided
   an inadequate or insufficient response to Commission-ordered discovery
   request may file a motion to compel within ten days of the service of
   such response, or as otherwise directed by Commission staff, pursuant
   to the requirements of §  1.727.

   (g) The Commission may, in its discretion, require parties to provide
   documents to the Commission in a scanned or other electronic format
   that provides:

   (1) Indexing by useful identifying information about the documents; and

   (2) Technology that allows staff to annotate the index so as to make
   the format an efficient means of reviewing the documents.

   (h) The Commission may allow additional discovery, including, but not
   limited to, document production, depositions and/or additional
   interrogatories. In its discretion, the Commission may modify the
   scope, means and scheduling of discovery in light of the needs of a
   particular case and the requirements of applicable statutory deadlines.

   (i) Discovery in Accelerated Docket proceedings. (1) Each party to an
   Accelerated Docket proceeding shall serve, with its initial pleading
   and with any reply statements in the pre-status-conference filing (see
   §  1.726(g)(1)), copies of all documents in the possession, custody or
   control of the party that are likely to bear significantly on any claim
   or defense. For the purpose of this paragraph (i), document also shall
   include data compilations and tangible things. A document is likely to
   bear significantly on a claim or defense if it:

   (i) Appears likely to have an influence on, or affect the outcome of, a
   claim or defense;

   (ii) Reflects the relevant knowledge of persons who, if their potential
   testimony were known, might reasonably be expected to be deposed or
   called as a witness by any of the parties;

   (iii) Is something that competent counsel would consider reasonably
   necessary to prepare, evaluate or try a claim or defense; or

   (iv) Would not support the disclosing party's contentions.

   (2) In their §  1.733(i)(4) pre-status-conference filings, parties to
   Accelerated Docket proceedings may request the production of additional
   documents. In their §  1.733(i)(4) filings, parties may also seek leave
   to conduct a reasonable number of depositions, including depositions of
   expert witnesses, if any. When requesting additional discovery, each
   party shall be prepared at the status conference to justify its
   requests by identifying the specific issue or issues on which it
   expects to obtain evidence from each request.

   (3) Interrogatories shall not be routinely granted in Accelerated
   Docket proceedings. A party to an Accelerated Docket proceeding that
   prefers interrogatories to the other forms of available discovery, for
   reasons of convenience or expense, may seek leave in its §  1.733(i)(4)
   pre-status-conference filing to propound a limited number of
   interrogatories.

   (4) Expert Witnesses.

   (i) Any complainant in an Accelerated Docket proceeding that intends to
   rely on expert testimony for a purpose other than to rebut a
   defendant's expert evidence, shall identify its expert witnesses in the
   information designation required by §  1.721(a)(10)(i). In its
   §  1.721(a)(10)(i) information designation, such a complainant shall
   also provide its expert statement. For purposes of this paragraph
   (i)(4), an expert statement shall include a brief statement of the
   opinions to be expressed by the expert, the basis and reasons therefor
   and any data or other information that the witness considered in
   forming her opinions.

   (ii) Any defendant in an Accelerated Docket proceeding that intends to
   rely on expert testimony shall identify its expert witnesses in the
   information designation required by §  1.724(f)(1). Such a defendant
   shall provide its expert statement with its §  1.733(i)(4),
   pre-status-conference filing.

   (iii) Any complainant in an Accelerated Docket proceeding that intends
   to rely on previously undisclosed expert testimony to rebut any portion
   of the defendant's case shall identify the expert and provide the
   appropriate expert statement at the initial status conference.

   (iv) Expert witnesses shall be subject to deposition in Accelerated
   Docket proceedings under the same rules and limitations applicable to
   fact witnesses.

   [ 63 FR 1038 , Jan. 7, 1998, as amended at  63 FR 41447 , Aug. 4, 1998]

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