[Code of Federal Regulations]
[Title 46, Volume 9]
[Revised as of October 1, 2006]

[CITE: 46CFR502.201]

[Page 54-56]
 
                           TITLE 46--SHIPPING
 
                 CHAPTER IV--FEDERAL MARITIME COMMISSION
 
PART 502_RULES OF PRACTICE AND PROCEDURE--Table of Contents
 
      Subpart L_Depositions, Written Interrogatories, and Discovery
 
Sec.  502.201  General provisions governing discovery.


    (a) Applicability. The procedures described in this subpart are 
available in all adjudicatory proceedings under the Shipping Act of 
1984. Unless otherwise ordered by the presiding officer, the copy 
requirements of Sec.  502.118(b)(3)(i) shall be observed.
    (b) Schedule of use--(1) Complaint proceedings. Any party desiring 
to use the procedures provided in this subpart shall commence doing so 
at the time it files its initial pleading, e.g., complaint, answer or 
petition for leave to intervene. Discovery matters accompanying 
complaints shall be filed with the Secretary of the Commission for 
service pursuant to Sec.  502.113.
    (2) Commission instituted proceedings. All parties desiring to use 
the procedures provided in this subpart shall commence to do so within 
30 days of the service of the Commission's order initiating the 
proceeding.
    (3) Commencement of discovery. The requirement to commence discovery 
under paragraphs (b)(1) and (b)(2) of this section shall be deemed 
satisfied when a party serves any discovery request under this subpart 
upon a party or person from whom a response is deemed necessary by the 
party commencing discovery. A schedule for further discovery pursuant to 
this subpart shall be established at the conference of the parties 
pursuant to paragraph (d) of this section.
    (c) Completion of discovery. Discovery shall be completed within 120 
days of the service of the complaint or the Commission's order 
initiating the proceeding.
    (d) Duty of the parties to meet or confer. In all proceedings in 
which the procedures of this subpart are used, it shall be the duty of 
the parties to meet or confer within fifteen (15) days after service of 
the answer to a complaint or after service of the discovery requests in 
a Commission-instituted proceeding in order to: establish a schedule for 
the completion of discovery within the 120-day period prescribed in 
paragraph (c) of this section; resolve to the fullest

[[Page 55]]

extent possible disputes relating to discovery matters; and expedite, 
limit, or eliminate discovery by use of admissions, stipulations and 
other techniques. The schedule shall be submitted to the presiding 
officer not later than five (5) days after the conference. Nothing in 
this rule should be construed to preclude the parties from meeting or 
conferring at an earlier date.
    (e) Submission of status reports and requests to alter schedule. The 
parties shall submit a status report concerning their progress under the 
discovery schedule established pursuant to paragraph (d) of this section 
not later than thirty (30) days after submission of such schedule to the 
presiding officer and at 30-day intervals thereafter, concluding on the 
final day of the discovery schedule, unless the presiding officer 
otherwise directs. Requests to alter such schedule beyond the 120-day 
period shall set forth clearly and in detail the reasons why the 
schedule cannot be met. Such requests may be submitted with the status 
reports unless an event occurs which makes adherence to the schedule 
appear to be impossible, in which case the requests shall be submitted 
promptly after occurrence of such event.
    (f) Conferences by order of the presiding officer. The presiding 
officer may at any time order the parties or their attorneys to 
participate in a conference at which the presiding officer may direct 
the proper use of the procedures of this subpart or make such orders as 
may be necessary to resolve disputes with respect to discovery and to 
prevent delay or undue inconvenience. When a reporter is not present and 
oral rulings are made at a conference held pursuant to this paragraph or 
paragraph (g) of this section, the parties shall submit to the presiding 
officer as soon as possible but within three (3) work days, unless the 
presiding officer grants additional time, a joint memorandum setting 
forth their mutual understanding as to each ruling on which they agree 
and, as to each ruling on which their understandings differ, the 
individual understandings of each party. Thereafter, the presiding 
officer shall issue a written order setting forth such rulings.
    (g) Resolution of disputes. After making every reasonable effort to 
resolve discovery disputes, a party may request a conference or rulings 
from the presiding officer on such disputes. Such rulings shall be made 
orally upon the record when feasible and/or by subsequent ruling in 
writing. If necessary to prevent undue delay or otherwise facilitate 
conclusion of the proceeding, the presiding officer may order a hearing 
to commence before the completion of discovery.
    (h) Scope of examination. Persons and parties may be examined 
regarding any matter, not privileged, which is relevant to the subject 
matter involved in the proceeding, whether it relates to the claim or 
defense of the examining party or to the claim or defense of any other 
party, including the existence, description, nature, custody, condition, 
and location of any books, documents, or other tangible things, and the 
identity and location of persons having knowledge of relevant facts. It 
is not ground for objection that the testimony will be inadmissible at 
the hearing if the testimony sought appears reasonably calculated to 
lead to the discovery of admissible evidence.
    (i) Protective orders. (1) Upon motion by a party or by the person 
from whom discovery is sought, and for good cause shown, the presiding 
officer may make any order which justice requires to protect a party or 
person from annoyance, embarrassment, oppression, or undue burden or 
expense including one or more of the following:
    (i) That the discovery not be had;
    (ii) That the discovery may be had only on specified terms and 
conditions including a designation of the time or place;
    (iii) That the discovery may be had only by a method of discovery 
other than that selected by the party seeking discovery;
    (iv) That certain matters not be inquired into, or that the scope of 
the discovery be limited to certain matters;
    (v) That discovery may be conducted with no one present except 
persons designated by the presiding officer;
    (vi) That a deposition after being sealed be opened only by order of 
the presiding officer;

[[Page 56]]

    (vii) That a trade secret or other confidential research, 
development, or commercial information not be disclosed or be disclosed 
only in a designated way;
    (viii) That the parties simultaneously file specified documents or 
information enclosed in sealed envelopes to be opened as directed by the 
presiding officer.
    (2) If the motion for a protective order is denied in whole or in 
part, the presiding officer may, on such terms and conditions as are 
just, order that any party or person provide or permit discovery. 
Rulings under this paragraph shall be issued by the presiding officer at 
a discovery conference called under Sec.  502.201(f) or, if 
circumstances warrant, under such other procedure the presiding officer 
may establish.
    (j) Supplementation of responses. A party who has responded to a 
request for discovery with a response that was complete when made is 
under no duty to supplement the party's responses to include information 
thereafter acquired, except as follows:
    (1) A party is under a duty seasonably to supplement responses with 
respect to any question directly addressed to (i) the identity and 
location of persons having knowledge of discoverable matters, and (ii) 
the identity of each person expected to be called as an expert witness 
at a hearing, the subject matter on which such person is expected to 
testify, and the substance of the testimony.
    (2) A party is under a duty seasonably to amend a prior response if 
the party obtains information upon the basis of which (i) the party 
knows that the response was incorrect when made, or (ii) the party knows 
that 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.
    (3) A duty to supplement responses may be imposed by order of the 
presiding officer or by agreement of the parties, subject to the time 
limitations set forth in paragraph (c) of this section or established 
under paragraph (e) of this section. [Rule 201.]

[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 64 
FR 7810, Feb. 17, 1999]