§ 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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