DOT 49 CFR PART 1114-2010 EVIDENCE DISCOVERY.pdf

1、136 49 CFR Ch. X (10110 Edition) 1113.19 (c) Requested findings. Each brief should include such requests for spe-cific findings, separately stated and numbered, as the party desires the Board to make. (d) Exhibit reproduction. Exhibits should not be reproduced in the brief, but may be shown, within

2、reasonable limits, in an appendix to the brief. Analysis of such exhibits should be in-cluded in the brief where pertinent. 47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996 1113.19 Pleadings: part of the record. Matters of fact that are verified and filed prior to oral hearing and

3、that are not specifically denied constitute evi-dence and are part of the record. A wit-ness, who would present such evidence, must be made available for cross-exam-ination if a request is reasonably made. This rule does not apply to protests against tariffs or schedules. 47 FR 49559, Nov. 1, 1982,

4、as amended at 64 FR 53268, Oct. 1, 1999 1113.201113.30 Reserved PART 1114EVIDENCE; DISCOVERY Subpart AGeneral Rules of Evidence Sec. 1114.1 Admissibility. 1114.2 Official records. 1114.3 Admissibility of business records. 1114.4 Documents in Boards files. 1114.5 Records in other Board proceedings. 1

5、114.6 Official notice of corroborative mate-rial. 1114.7 Exhibits. Subpart BDiscovery 1114.21 Applicability; general provisions. 1114.22 Deposition. 1114.23 Depositions; location, officer, time, fees, absence, disqualification. 1114.24 Depositions; procedures. 1114.25 Effect of errors and irregulari

6、ties in depositions. 1114.26 Written interrogatories to parties. 1114.27 Request for admission. 1114.28 Depositions, requests for admission, written interrogatories, and responses thereto: inclusion in record. 1114.29 Supplementation of responses. 1114.30 Production of documents and records and entr

7、y upon land for inspec-tion and other purposes. 1114.31 Failure to respond to discovery. AUTHORITY: 5 U.S.C. 559; 49 U.S.C. 721. SOURCE: 47 FR 49562, Nov. 1, 1982, unless otherwise noted. Subpart AGeneral Rules of Evidence 1114.1 Admissibility. Any evidence which is sufficiently re-liable and probat

8、ive to support a deci-sion under the provisions of the Admin-istrative Procedure Act, or which would be admissible under the general statutes of the United States, or under the rules of evidence governing pro-ceedings in matters not involving trial by jury in the courts of the United States, will be

9、 admissible in hearings before the Board. The rules of evidence will be applied in any proceeding to the end that necessary and proper evidence will be conveniently, inexpensively, and speedily produced, while pre-serving the substantial rights of the parties. 47 FR 49562, Nov. 1, 1982, as amended a

10、t 61 FR 52713, Oct. 8, 1996 1114.2 Official records. An official record or an entry there-in, when admissible for any purpose, may be evidenced by an official publi-cation thereof or by a copy attested by the officer having the legal custody of the record, or by a deputy, and accom-panied with a cer

11、tificate that such offi-cer has the custody. If the office in which the record is kept is within the United States or within a territory or insular possession subject to the do-minion of the United States, the cer-tificate may be made by a judge of a court of record of the district or polit-ical sub

12、division in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and hav-ing official duties in the district or po-litical subdivision in which the record is kept, authenticated by the seal of his office. If the office in whic

13、h the record is kept is in a foreign state or country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by officer in the for-eign service of the United States sta-tioned in the foreign state or country VerDate Mar2010 15:03

14、 Nov 23, 2010 Jkt 220219 PO 00000 Frm 00146 Fmt 8010 Sfmt 8010 Y:SGML220219.XXX 220219jdjones on DSKHWCL6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-137 Surface Transportation Board, DOT 1114.21 in which the record is kept, and au-

15、thenticated by the seal of his office. A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided,

16、 is admissible as evi-dence that the records of this office contain no such record or entry. This section does not prevent the proof of official records or of entry or lack of entry therein or official notice thereof by a method authorized by any applica-ble statute or by the rules of evidence. 1114

17、.3 Admissibility of business records. Any writing or record, whether in the form of an entry in a book or other-wise, made as a memorandum or record of any act, transaction, occurrence, or event, will be admissible as evidence thereof if it appears that it was made in the regular course of business,

18、 and that it was the regular course of busi-ness to make such memorandum or record at the time such record was made, or within a reasonable time thereafter. 1114.4 Documents in Boards files. If a party offers in evidence any mat-ter contained in a report or other docu-ment open to public inspection

19、in the files of the Board, such report or other document need not be made available at the hearing. 47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996 1114.5 Records in other Board pro-ceedings. If any portion of the record before the Board in any proceeding other than the proceeding

20、 at issue is offered in evidence, a true copy will be presented for the record. 47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996 1114.6 Official notice of corrobora-tive material. The Board or a hearing officer may take notice of official records, records in other Board proceedings

21、, or other materials which are otherwise subject to specific rules governing admissi-bility regardless of compliance with the full technical provisions of such rules, where the admissibility of the evidence is for purposes of corrobora-tion of testimony presented or to evaluate the credibility of te

22、stimony or allegations made in proceedings where the public interest is not other-wise adequately represented by counsel capable of fully complying with such rules. 47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996 1114.7 Exhibits. Whenever practical the sheets of each exhibit and t

23、he lines of each sheet should be numbered. If the exhibit con-sists of five or more sheets, the first sheet or title-page should be confined to a brief statement of what the ex-hibit purports to show with reference by sheet and line to illustrative or typ-ical examples contained therein. The exhibit

24、 should bear an identifying number, letter, or short title which will readily distinguish it from other exhibits offered by the same party. It is desirable that, whenever practicable, evidence should be condensed into ta-bles. Whenever practicable, especially in proceedings in which it is likely tha

25、t many documents will be offered, all the documents produced by a single wit-ness should be assembled and bound to-gether, suitably arranged and indexed, so that they may be identified and of-fered as one exhibit. Exhibits should not be argumentative and should be limited to statements of facts, and

26、 be relevant and material to the issue, which can better be shown in that form than by oral testimony. 47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996 Subpart BDiscovery 1114.21 Applicability; general provi-sions. (a) When discovery is available. (1) Par-ties may obtain discovery

27、under this subpart regarding any matter, not privileged, which is relevant to the VerDate Mar2010 15:03 Nov 23, 2010 Jkt 220219 PO 00000 Frm 00147 Fmt 8010 Sfmt 8010 Y:SGML220219.XXX 220219jdjones on DSKHWCL6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without

28、license from IHS-,-,-138 49 CFR Ch. X (10110 Edition) 1114.21 subject matter involved in a pro-ceeding other than an informal pro-ceeding. For the purpose of this sub-chapter, informal proceedings are those not required to be determined on the record after hearing and include in-formal complaints an

29、d all proceedings assigned for initial disposition to em-ployee boards under 1011.6. (2) It is not grounds for objection that the information sought will be in-admissible as evidence if the informa-tion sought appears reasonably cal-culated to lead to the discovery of ad-missible evidence. (3) In ca

30、ses using the simplified standards Three-Benchmark method, the number of discovery requests that either party can submit is limited as set forth in 1114.22, 1114.26, and 1114.30, absent advance authorization from the Board. (b) How discovery is obtained. All dis-covery procedures may be used by par-

31、ties without filing a petition and ob-taining prior Board approval. (c) Protective conditions. Upon motion by any party, by the person from whom discovery is sought, or by any person with a reasonable interest in the data, information, or material sought to be discovered and for good cause shown, an

32、y order which justice requires may be entered to protect a party or person from annoyance, embarrassment, op-pression, or undue burden or expense, or to prevent the raising of issues un-timely or inappropriate to the pro-ceeding. Relief through a protective order may include one or more of the follo

33、wing: (1) That the discovery not be had; (2) That the discovery may be had only on specified terms and conditions, including a designation of the time and place; (3) That the discovery may be had only upon such terms and conditions as the Board may impose to insure finan-cial responsibility indemnif

34、ying the party or person against whom dis-covery is sought to cover the reason-able expenses incurred; (4) That the discovery may be had only by a method other than that se-lected by the party seeking discovery; (5) That certain matters not be in-quired into or that the scope of dis-covery be limite

35、d to certain matters; (6) That discovery be conducted with no one present except persons des-ignated in the protective order; (7) That a deposition after being sealed be opened only by order of the Board; (8) That a trade secret or other con-fidential research development or com-mercial information

36、not be disclosed or be disclosed only in a designated way; and (9) That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened only upon direction or order of the Board. If the motion for a protective order is denied in whole or in part, the Boar

37、d may, on such terms and conditions as it deems just, enter an order requiring any party or person to provide or per-mit discovery. A protective order under this paragraph may only be sought after, or in conjunction with, an effort by any party to obtain relief under 1114.24(a), 1114.26(a), or 1114.

38、31. (d) Sequence and timing of discovery. Unless the Board upon motion, for the convenience of parties and witnesses and in the interest of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwis

39、e, should not operate to delay any partys discovery. (e) Stipulations regarding discovery. Unless otherwise ordered, a written stipulation entered into by all the par-ties and filed with the Board may: (1) Provide that depositions be taken before any person, at any time or place, upon sufficient not

40、ice, and in any manner and when so taken may be used like other depositions; and (2) Modify the procedures provided by these rules for other methods of dis-covery. (f) Service of discovery materials. Un-less otherwise ordered by the Board, depositions, interrogatories, requests for documents, reques

41、ts for admissions, and answers and responses thereto, shall be served on other counsel and parties, but shall not be filed with the Board. Any such materials, or portions VerDate Mar2010 15:03 Nov 23, 2010 Jkt 220219 PO 00000 Frm 00148 Fmt 8010 Sfmt 8010 Y:SGML220219.XXX 220219jdjones on DSKHWCL6B1P

42、ROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-139 Surface Transportation Board, DOT 1114.24 thereof, should be appended to the ap-propriate pleading when used to sup-port or to reply to a motion, or when used as an evidentiary submissio

43、n. 47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996; 72 FR 51377, Sept. 7, 2007 1114.22 Deposition. (a) Purpose. The testimony of any person, including a party, may be taken by deposition upon oral exam-ination. (b) Request. A party requesting to take a deposition and perpetuate te

44、sti-mony: (1) Should notify all parties to the proceeding and the person sought to be deposed; and (2) Should set forth the name and ad-dress of the witness, the place where, the time when, the name and office of the officer before whom, and the cause or reason why such deposition will be taken. (c)

45、 Limitation under simplified stand-ards. In a case using the Three-Bench-mark methodology, each party is lim-ited to one deposition absent advance authorization from the Board. 61 FR 52713, Oct. 8, 1996, as amended at 72 FR 51377, Sept. 7, 2007 1114.23 Depositions; location, officer, time, fees, abs

46、ence, disqualification. (a) Where deposition should be taken. Unless otherwise ordered or agreed to by stipulation, depositions should be taken in the city or municipality where the deponent is located. (b) Officer before whom taken. Within the United States or within a territory or insular possessi

47、on subject to the do-minion of the United States, deposi-tions should be taken before an officer authorized to administer oaths by the laws of the United States or of the place where the examination is held. Within a foreign country, depositions may be taken before an officer or per-son designated b

48、y the Board or agreed upon by the parties by stipulation in writing to be filed with the Board. (c) Fees. A witness whose deposition is taken pursuant to these rules and the officer taking same, unless he be employed by the Board, shall be enti-tled to the same fee paid for like serv-ice in the cour

49、ts of the United States, which fee should be paid by the party at whose instance the deposition is taken. (d) Failure to attend or to serve sub-poena; expenses. (1) If the party who filed a petition for discovery fails to attend and proceed with the taking of the deposition and another party at-tends in person or by representative pursuant to an order of the Board granting discovery the Board may order the party who filed the petiti