29- 250 C.M.R. ch. 14, § 4

Current through 2024-51, December 18, 2024

Section 250-14-4 - Prehearing Procedure

1. Prehearing Conference. The Chair shall schedule a conference no later than forty five days from the filing of the Complaint.

A. At least five days before the conference each party shall serve the Board and all other parties with a pretrial memorandum. The memorandum shall, to the greatest extent possible:

1 identify all issues of fact and law to be raised at the hearing;

2 list requested admissions or stipulations to facts or documents;

3 specify the time requested for presentation of the party's direct case and cross examination of witnesses;

4 identify all experts and the scope of their testimony;

5 list requests to use pre-filed direct testimony;

6 list requests for official notice;

7 list all outstanding discovery items that the party has requested and discovery to which the party has not responded; and

8 list proposed exhibits.

B. At the conference the Chair shall, with the participation of the Parties' representatives,

1 formulate or simplify the issues of law and fact;

2 obtain admissions or stipulations to facts and documents;

3 decide time limits for each party's examination of witnesses;

4 decide requests for official notice;

5 address discovery disputes and motions;

6 determine the admissibility of evidence;

7 address any requests to use prefiled direct testimony;

8 decide the order of presentation;

9 arrange for exchange of proposed exhibits, testimony, and evidence;

10 limit the number of witnesses and extent of witness examinations;

11 determine scheduling and procedures for the hearing;

12 rule on pending motions;

13 schedule the hearing; and

14 discuss other matters which may expedite the orderly conduct and settlement or adjudication of the proceeding.

C. The parties shall be prepared to engage in a good faith effort to obtain resolution and shall arrive with the person authorized to act on settlement proposals. For good cause shown, the Chair may allow the person authorized to act on settlement proposals to participate by telephone.

D. The Chair shall have the discretion to appoint a mediator to facilitate settlement at the pre-hearing conference, or appoint a mediator to convene a settlement conference after the pre-hearing conference. If mediation does not resolve the dispute, the parties shall split the cost of the mediator, subject to a final award of costs by the Board pursuant to § 1188 of the Act and §7 of these Rules.

E. Any settlement of a proceeding through mediation, stipulation, or any other agreement of the parties is subject to the Board's approval.

F. The Chair shall conduct a final prehearing conference ten days before the hearing. Each party shall file a trial brief five days before this conference, consisting of a brief statement of not more than five pages explaining the party's case, the standard of proof, and the applicable law. It may include proposed findings of fact and conclusions of law. The parties shall review the issues raised at the pre-hearing conference as set forth in subsection 1(A) of this section and exchange pre-marked exhibits and witness lists. Exhibits or witnesses not then listed may be excluded at hearing. The Chair may require the parties to participate in other conferences which may be conducted by telephone, video, or other electronic means.

G. The Chair may designate all or part of the record of prior Board hearings as evidence to be considered in a particular hearing.

H. Upon notice to the participants, all or part of the pre-hearing conferences may be recorded.

I. The Chair may direct the parties to draft a Conference Report setting out the issues resolved at the conference and the issues which remain to be decided at hearing, or the Chair may do so himself. This conference Report shall be made part of the record and will control the course of the proceedings unless modified by the Chair.

2. Discovery.

A. Except as set forth below or ordered by the Chair, the Maine Rules of Civil Procedure govern discovery before the Board.

B. The parties are required to exchange the following information within 30 days of the filing of the complaint:

1 The name, address, telephone number, facsimile number and electronic address of the person upon whom service shall be made;

2 The name of the person who is knowledgeable on the issues and primarily responsible for responding to discovery;

3 Copies of all correspondence and communications of all types between the plaintiff and defendant relevant to the issues for the three years prior to the filing of the complaint;

4 Copies of the franchise agreement in effect including all addenda thereto, and the sales and service agreements in effect including all addenda thereto relevant to the issues in the proceeding;

5 Copies of all relevant manufacturer's service bulletins, recall notices or information, materials relevant to incentive programs, allocation standards, advertising standards or rules and customer survey information.

3. Pursuant to the Maine Rules of Civil Procedure, All parties shall have the right to take depositions, serve interrogatories and serve requests for production of documents and requests for admissions upon any party, subject to the following terms and procedures.

A. Interrogatories and Requests for Production of Documents Pursuant to Rules 33 and 34 must be exchanged within twenty days of service of the answer.

B. Objections to interrogatories, requests for production of documents or requests for admissions shall be filed with the Board no later than seven working days after receipt, unless some other period is prescribed by order of the Chair.

C. Interrogatories, requests for production and requests for admissions shall be answered within fifteen days after receipt or such other period as may be ordered by the Chair, except as to any part of a request to which specific and timely objection is made. In cases where timely objection has been made and the objection is subsequently overruled, the requested information, document or admission shall be provided within seven days of the denial.

4. Confidential or Proprietary Information.

A party may seek protection for information contained in any pleading, document, exhibit, testimony or any other information provided to the Board that is proprietary or confidential under Maine law. The party seeking such protection for confidential or proprietary information must file a motion for protective order pursuant to Rules 26(c) and 45(d) 2 setting forth the information sought to be protected and the basis under Maine law for the protection. The Board and all parties shall treat all information that is the subject of a motion for protection as confidential and proprietary until the Chair issues a ruling denying the motion for protection. The Chair shall rule upon the motion based on the applicable principles of Maine law. If the Chair grants the motion, the ruling shall specify the requirements for protection, which may include confidentiality agreements.

5. Sanctions.

A. Failure of a party to comply with an order of the Chair issued pursuant to this Chapter shall be grounds for dismissal of the complaint, entry of a default judgment, or dismissal of an intervenor from the proceeding. The dismissal or default is with prejudice unless otherwise stated in the order of dismissal or default, and is final unless the Board finds that the failure to comply was the result of excusable neglect.

B. Any motion to compel discovery shall be decided without hearing unless the Chair, following a conference, determines there are genuine issues of fact which require review.

29- 250 C.M.R. ch. 14, § 4