Section 59.1 - Request for Discovery; Statements; Writings; Investigative Report; Witness List(a) Except as otherwise provided in subsection (a)(1), each party to an appeal, complaint, or any other matter scheduled for an evidentiary hearing, is entitled to serve a request for discovery on any other named party to the complaint or appeal. All requests for discovery shall be served on the responding party no later than 90 days after filing the appeal or complaint with the board. The right to inspect documents and interview witnesses provided for under Government Code section 19574.1 is separate and distinct from a request for discovery expressed in this section and is not governed by the provisions of this section. (1) For appeals from Notice of Adverse Action served pursuant to Government Code section 19574 or 19590, a request for discovery may only be served by the Appellant or the Appellant's representative upon the Respondent as provided for in subdivision (a). However, a Respondent may serve a request for discovery on Appellant in said appeal no later than 15 days after the prehearing/settlement conference solely for the purpose of obtaining information relevant to any affirmative defense alleged by Appellant in the prehearing/settlement conference statement. If Appellant amends his or her prehearing/settlement conference statement after a prehearing/settlement conference to include an affirmative defense, Respondent may serve a request for discovery on Appellant no later than 15 days after receiving the amended prehearing/settlement conference statement. If Appellant alleges an affirmative defense simultaneously with filing his or her appeal, a Respondent may serve a request for discovery on Appellant no later than 90 days after the Respondent's receipt of Appellant's defense to the notice of proposed action.(b) Any party seeking discovery beyond the 90 days from the filing of an appeal or complaint with the board or more than 15 days after the prehearing/settlement conference or the receipt of a prehearing/settlement conference statement, may do so only upon an order issued by the Chief ALJ or his or her designee. The party seeking discovery must file a petition showing good cause why they exceeded the 90, or 15, day periods, and shall attach a copy of the proposed discovery request. The matter will be decided upon the moving papers by the assigned ALJ, in his or her discretion, that such additional or late requests for discovery should be permitted in the furtherance of justice. No hearing on the motion will be scheduled.(c) A request for discovery may include the following:(1) Each party to the appeal or complaint is entitled to request and receive from any other party to the appeal or complaint the names and home or business addresses of percipient witnesses to the event(s) in question, to the extent known to the other party and of individuals who may be called as witnesses during the course of the hearing, except to the extent that disclosure of the address is prohibited by law. The responding party may, at his or her discretion, provide either the home or business address of the witness, except to the extent that disclosure of the address is prohibited by law;(2) Statements, as defined in Evidence Code section 225, to the extent such statements exist as of the date of the request, of witnesses proposed to be called during the hearing by the party and of other persons having personal knowledge of the act, omission, event, decision, condition, or policy which are the basis for the appeal. The responding party shall, upon a showing of good cause and subject to the discretion of the administrative law judge, subsequently amend their witness list if they intend to call additional witnesses not previously disclosed;(3) All writings, as defined in Evidence Code section 250, that the responding party proposes to enter into evidence. The responding party shall, upon a showing of good cause and subject to the discretion of the ALJ, subsequently provide the requesting party with additional writings that it proposes to enter into evidence;(4) Any other writing or thing that is relevant to the appeal or complaint; and(5) Investigative reports made by or on behalf of any party pertaining to the act, omission, event, decision, condition or policy which is the basis for the appeal or complaint, including all supporting materials, pertaining to the subject matter of the proceeding, to the extent that these reports: (A) contain the names and home or business addresses of witnesses or other persons having personal knowledge of the facts, omissions or events which are the basis for the proceeding, unless disclosure of the address is prohibited by law, or(B) reflect matters perceived by the investigator in the course of his or her investigation, or(C) contain or include by attachment any statement or writing described in subsection (c)(5) (A) to (B), inclusive, or summary thereof.(d) All parties receiving a request for discovery shall produce the information requested, or shall serve a written response on the requesting party clearly specifying which of those requested matters will not be produced and the basis for the non-production, within 30 days of receipt of the discovery request. The parties may extend the deadline by mutual agreement, by no more than 30 days. (1) A responding party may object to any item or category demanded in a request for discovery in whole or in part. The objection must:(A) Identify with particularity the specific document or evidence demanded to which the objection is made; and(B) Set forth the specific ground for objection, including claims of privilege, work product, or right of privacy protection.(C) If an objection is based on a claim of privilege, the particular privilege invoked shall be stated.(D) If an objection is based on a claim that the information sought is protected work product, that claim shall be expressly asserted.(2) If a responding party fails to serve a timely response to a request for discovery: (A) The responding party waives any objection to the request for discovery, including one based on privilege or on the protection for work product.(B) At the discretion of the assigned ALJ, a responding party may be relieved from this waiver based upon a determination that both of the following conditions are satisfied:(i) The responding party has subsequently served a response that is in substantial compliance with the request for discovery, and(ii) The responding party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.(e) Failure to produce information or material responsive to a request for discovery may result in the exclusion of a witness or other evidence at the discretion of the assigned ALJ. A responding party may, at the discretion of the assigned ALJ, and upon a showing of good cause amend a response to request for discovery no later than 30 days prior to the evidentiary hearing.Cal. Code Regs. Tit. 2, § 59.1
1. New chapter 4 (sections 59.1-59.4) and renumbering and amendment of former section 57.2 to new section 59.1 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
2. Change without regulatory effect redesignating former chapter 4 as new subarticle 4 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).
3. Change without regulatory effect amending subsection (a) filed 10-28-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 44).
4. Amendment of subsections (a)-(b) and amendment of NOTE filed 4-12-2013; operative 4-12-2013 pursuant to Government Code section 11343.4(b)(3) (Register 2013, No. 15). Note: Authority cited: Sections 18701 and 18214, Government Code. Reference: Sections 225 and 250, Evidence Code; and Sections 18670, 18671, 18672, 18672.1, 18673, 18675, 19683 and 19700- 19706, Government Code.
1. New chapter 4 (sections 59.1-59.4) and renumbering and amendment of former section 57.2 to new section 59.1 filed 8-18-2010; operative 8-18-2010 pursuant to Government Code section 11343.4 (Register 2010, No. 34).
2. Change without regulatory effect redesignating former chapter 4 as new subarticle 4 filed 9-7-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 37).
3. Change without regulatory effect amending subsection (a) filed 10-28-2010 pursuant to section 100, title 1, California Code of Regulations (Register 2010, No. 44).
4. Amendment of subsections (a)-(b) and amendment of Note filed 4-12-2013; operative 4-12-2013 pursuant to Government Code section 11343.4(b)(3) (Register 2013, No. 15).