Current through Register Vol. XLI, No. 50, December 13, 2024
Section 77-8-10 - Discovery10.1. In general.The following actions govern discovery in aid of administrative proceedings under these regulations. Except for time periods stated in these rules, to the extent that these rules conflict with discovery procedures in the West Virginia Rules of Civil Procedure apply.
10.2. Scope.10.2.1. The parties are encouraged to engage in voluntary discovery procedures. Discovery shall be conducted as expeditiously and inexpensively as possible, consistent with the needs of all parties to obtain relevant evidence. Unless otherwise ordered by the administrative law judge, the parties may obtain discovery regarding any matter, not privileged, which is or may be relevant to the subject matter involved in the proceeding, including the existence, description, nature, custody, condition, and location of documents or persons having knowledge of any discoverable matter. It is not grounds for objection that information sought will not be admissible if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.10.2.2. For the purposes of obtaining discovery from a non-intervening aggrieved person, the term "party" as used in these rules regarding discovery includes the aggrieved person on whose behalf the charge was issued.10.3. Depositions.Depositions may be taken by agreement of the parties or upon order of the administrative law judge. Depositions may be taken before any person having the power to administer oaths.
10.4. Use of deposition at hearings.10.4.1. In general.At the hearing, any part or all of a deposition, so far as it is admissible under the West Virginia Rules of Evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice of the taking of the deposition, in accordance with the following provisions:
10.4.1.a. Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness.10.4.1.b. The deposition of expert witnesses, may be used by any party for any purpose, unless the administrative law judge rules that such use is unfair or a violation of due process.10.4.1.c. The deposition of a party or of anyone who at the time of the taking of the deposition was an officer, director, or duly authorized agent of a public or private corporation, partnership, or association that is a party, may be used by any other party for any purpose.10.4.1.d. The deposition of a witness, whether or not a party, may be used by any party for any purpose if the administrative law judge finds: 10.4.1.d.1. That the witness is dead;10.4.1.d.2. That the witness is outside of the state or more than one hundred (100) miles from the place of hearing, unless it appears that the absence of the witness was procured by the party offering the deposition;10.4.1.d.3. That the witness is unable to attend to testify because of age, sickness, infirmity, or imprisonment:10.4.1.d.4. That the party offering the deposition has been unable to procure the attendance of the witness by subpoena: or10.4.1.d.5. Whenever exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open hearing, to allow the deposition to be used.10.4.2. If a part of a deposition is offered in evidence by a party, any other party may require the party to introduce all of the deposition that is relevant to the part introduced. Any party may introduce any other part of the deposition.10.4.3. Substitution of parties does not affect the right to use depositions previously taken. If a proceeding has been dismissed and another proceeding involving the same subject matter is later brought between the same parties or their representatives or successors in interest, all depositions lawfully taken in the former proceeding may be used in the latter proceeding.10.4.4. Objections to admissibility.Except as provided in this paragraph, objection may be made at the hearing to receiving in evidence any deposition or part of a deposition for any reason that would require the exclusion of the evidence if the witness were present and testifying.
10.4.4.a. Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition unless the basis of the objection is one which might have been obviated or removed if presented at that time.10.4.4.b. Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed or cured if promptly presented, are waived unless reasonable objection is made at the taking of the deposition.10.4.4.c. Objections to the form of written interrogatories are waived, unless served in writing upon the party propounding the interrogatories.10.5. Written interrogatories. 10.5.1. Written interrogatories to parties.Any party may serve on any other party written interrogatories to be answered by the party served. If the party served is a public or private corporation, a partnership, an association, or a governmental agency, the interrogatories may be answered by any authorized officer or agent who shall furnish such information as may be available to the party. A party may serve not more than forty (40) written interrogatories on another party without an order of the administrative law judge.
10.5.2. Responses to written interrogatories.Each interrogatory shall be answered separately and fully in writing under oath or affirmation, unless the party objects to the interrogatory. If a party objects to an interrogatory, the response shall state the reasons for the objection in lieu of an answer. The answer and objections shall be signed by the person making them, except that objections may be signed by the counsel for the party. The party upon whom the interrogatories were served shall serve copy of the answers and objections upon all parties within twenty (20) days after service of the interrogatories.
10.6. Production of documents and other evidence.Any party may serve on any other party a request to produce documents or things. Within twenty (20) days of the service of the request, the party upon whom the request is served shall serve a written response on the party submitting the request, which response shall with regard to each request:
10.6.1. Refer to the request and enclose the documents which are responsive to such request.10.6.2. Make objection to the request and state the reason for the objection.10.7. Entry upon land for inspection and other purposes; and physical and mental examinations. 10.7.1. In general Any party may serve on any other party a request to:10.7.1.a. Permit the party making the request, or a person acting on the party's behalf, to inspect and copy any designated documents, or to inspect and copy, test, or sample any tangible things that are in the possession, custody, or control of the party upon whom the request is served;10.7.1.b. Permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, photographing, testing, or other purposes stated in section 10.7.1.a; or10.7.1.c. Submit to a physical or mental examination by a physician.10.7.2. The request shall: 10.7.2.a. Set forth the items to be inspected by individual item or by category of items;10.7.2.b. Describe each item or category with reasonable particularity;10.7.2.c. Specify a reasonable time, place and manner for making the inspection and performing the related acts; and10.7.2.d. Specify the time, place, manner, conditions, and scope of the physical or mental examination, and the person or persons who will make the examination. A report of the examining physician shall be made in accordance with Rule 35(b) of the West Virginia Rules of Civil Procedure.10.7.3. Response to request Within twenty (20) days of the service of the request, the party upon whom the request is served shall serve a written response on the party submitting the request. The response shall state, with regard to each item or category:10.7.3.1. That inspection and related activities will be permitted as requested; or10.7.3.2. That objection is made to the request in whole or in part. If an objection is made, the response must state the reasons for the objection.10.8. Supplementation of responses. 10.8.1. In general A party who responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information acquired after the response was made except:10.8.1.a. A party is under a duty to timely supplement responses with respect to any question directly addressed to:10.8.1.a.1. The identity and location of persons having knowledge of discoverable matters; and10.8.1.a.2. The identity of each person expected to be called as an expert witness at the hearing, the subject matter on which the expert witness is expected to testify, and the substance of the testimony.10.8.1.a.3. A party is under a duty to timely amend a previous response if the party later obtains information upon the basis of which:10.8.1.a.3.1. The party knows the response was incorrect when made; or10.8.1.a.3.2. The party knows the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is, in substance, a knowing concealment.10.8.2. By order or agreement.A duty to supplement responses may be imposed by order of the administrative law judge or by agreement of the parties.
10.9. Protective orders.Upon motion of a party or a person from whom discovery is sought or in accordance with section 10, the administrative law judge may make appropriate orders to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense as a result of the requested discovery request. The order may direct that:
10.9.1. The discovery may not be had;10.9.2. The discovery may be had only on specified terms and conditions, including a designation of time and place for discovery;10.9.3. The discovery may be had by a method of discovery other than that selected by the party seeking discovery;10.9.4. Certain irrelevant matters may not be the subject of discovery, or that the scope of discovery be limited to certain matters;10.9.5. Discovery may be conducted with no one present other than persons designated by the administrative law judge; or10.9.6. A trade secret or other confidential research, development or commercial information may not be disclosed, or may be disclosed only in a designated way.10.10. Discovery of commission staff and records.10.10.1. The staff of the commission shall not be examined either by interrogatory or deposition except when leave to undertake such examination is granted by the administrative law judge upon motion alleging that:10.10.1.a. The staff person has direct personal knowledge of evidence relevant to the proceeding other than evidence gathered as a result of investigation.10.10.1.b. For other reasons, which shall be set forth with particularity, justice requires that the petition be granted.10.10.1.c. Discovery has revealed that the staff person will be called as a witness.10.10.2. Information which is exempt from discovery includes, but is not limited to: 10.10.2.a. Any record, report, memorandum, or communication dealing with the internal practice, policy and procedure of the commission.10.10.2.b. Any record, report, memorandum, or communication of staff or any staff meeting regarding the institution, progress or result of an investigation of a complaint or regarding matters prepared in anticipation of a hearing.10.10.2.c. Any record, report, memorandum, or communication regarding any endeavor to eliminate the unlawful discriminatory practice complained of by conference, conciliation or persuasion.10.10.2.d. The work product of an investigator or other staff member made in the course of an investigation of a complaint or in anticipation of or in preparation for a hearing on the complaint, or any report, record, memorandum, or communication made by staff during the investigation of a complaint or in anticipation of or in preparation for a hearing on the complaint which is otherwise privileged.10.10.2.e. Any memorandum, statement or mental impression prepared or obtained by the commission's attorney.10.11. Failure to make or cooperate in discovery.10.11.1. Motion to compel discovery.If a deponent fails to answer a question propounded, or a party upon whom a request is made under section 10.3 through 10.5 of these regulations fails to respond adequately, objects to a request, or fails to permit inspection as requested, the discovering party may move the administrative law judge for an order compelling a response or an inspection in accordance with the request. The motion shall:
10.11.1.a. State the nature of the request;10.11.1.b. Set forth the response or objection of the party upon whom the request was served;10.11.1.c. Present arguments supporting the motion; and10.11.1.d. Attach copies of all relevant discovery requests and responses.10.11.2. Evasive or incomplete answers.For the purposes of this section, an evasive or incomplete answer or response will be treated as a failure to answer or respond.
10.11.3. Administrative law judge ruling.In ruling on a motion under this section, the administrative law judge may enter an order compelling a response or an inspection in accordance with the request, may issue sanctions under section 10.11.4, or may enter a protective order under 10.7.
10.11.4. Sanctions.If a party fails to comply with an order (including an order for taking a deposition, the production of evidence within the party's control, a request for admission, or the production of witnesses) the administrative law judge may:
10.11.4.a. Draw an inference in favor of the requesting party with regard to the information sought;10.11.4.b. Prohibit the party failing to comply with the order from introducing evidence concerning, or otherwise relying upon, testimony relating to the information sought;10.11.4.c. Permit the requesting party to introduce secondary evidence concerning the information sought;10.11.4.d. Strike any appropriate part of the pleadings or other submissions of the party failing to comply with such order; or10.11.4.e. Take such other action as may be appropriate.