001.01 Discovery Methods Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; and requests for admission. Unless the Commission orders otherwise under subdivision 001.03 of this rule, the frequency of use of these methods is not limited.
001.02 Scope of Discovery Unless otherwise limited by order of the Commission in accordance with these rules, the scope of discovery is as follows:
001.02A In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in an appeal or petition, whether it relates to the claim or defense of the party seeking discovery 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 any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.001.02B Hearing Preparation: Materials. Subject to the provisions of subdivision 001.02C of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision 001.02A of this rule and prepared in anticipation of a petition or appeal or for hearing by or for another party or by or for that other party's representative (including his or her legal counsel, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation for a hearing and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the Commission shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of legal counsel or other representative of a party concerning the petition or appeal. A party may obtain without the required showing a statement concerning a petition or appeal or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the petition or appeal or its subject matter previously made by that person. If the request is refused, the person may move for a Commission order. The provisions of subsection 011.01C apply to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is (A) a written statement signed or otherwise adopted or approved by the person making it, or (B) a stenographic, mechanical, electrical or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.
001.02C Hearing Preparation: Experts. Discovery of facts known and opinions held by experts otherwise discoverable under the provisions of subdivision 001.02A of this rule and acquired or developed in anticipation of an appeal or petition or for hearing may be obtained only as follows: 001.02C1a A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at hearing, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.001.02C1b Upon motion, the Commission may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision 001.02C 3 of this rule, concerning fees and expenses as the Commission may deem appropriate. 001.02C2 A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of an appeal or petition or preparation for hearing and who is not expected to be called as a witness at hearing, only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.001.02C3 Unless manifest injustice would result, 001.02C3a the Commission shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subsections 001.02C1a and 001.02C2 of this rule; and001.02C3b with respect to discovery obtained under subdivision 001.02C1a of this rule the Commission may require, and with respect to discovery obtained under subdivision 001.02C2 of this rule the Commission shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.001.03 Protective Orders Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the Commission 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:
001.03A that the discovery not be had;001.03B that the discovery may be had only on specified terms and conditions, including a designation of the time or place;001.03C that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;001.03D that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;001.03E that discovery be conducted with no one present except persons designated by the Commission;001.03F that a deposition after being sealed be opened only by order of the Commission;001.03G that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;001.03H that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the Commission. If the motion for a protective order is denied in whole or in part, the Commission may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of 011.01C apply to the award of expenses incurred in relation to the motion.
001.04 Sequence and Timing of Discovery Unless the Commission upon motion, for the convenience of parties and witnesses and in the interests 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 otherwise, shall not operate to delay any other party's discovery.
001.05 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 response to include information thereafter acquired, except as follows:
001.05A A party is under a duty seasonably to supplement his or her response with respect to any question directly addressed to 001.05A1 the identity and location of persons having knowledge of discoverable matters, and001.05A2 the identity of each person expected to be called as an expert witness at hearing, the subject matter on which he or she is expected to testify, and the substance of his or her testimony. 001.05B A party is under a duty seasonably to amend a prior response if the party obtains information upon the basis of which 001.05B1 the party knows that the response was incorrect when made, or001.05B2 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.001.05B3 A duty to supplement responses may be imposed by order of the Commission or by agreement of the parties.001.06 Service of Discovery Papers Except as otherwise ordered by the Commission, every discovery paper and every motion relating to discovery and response thereto required to be served upon a party shall be served upon each of the parties not in default for failure to appear.
001.07 Filing of Discovery Materials Discovery materials that do not require action by the Commission shall not be filed with the Commission. All such materials, including notices of deposition, depositions, certificates of filing a deposition, interrogatories, answers and objections to interrogatories, requests for documents or to permit entry upon land and responses or objections to such requests, requests for admissions and responses or objections to such requests, subpoenas for depositions or other discovery and returns of service of subpoenas, and related notices shall be maintained by the parties.
Discovery materials shall be filed with the Commission only when ordered by the Commission or when required by law. If the original of a deposition is not in the possession of a party who intends to offer it in evidence at a hearing, that party may give notice to the party in possession of it that the deposition will be needed at the hearing. Upon receiving such notice the party in possession of the deposition shall either make it available to the party who intends to offer it or produce it at the hearing.
442 Neb. Admin. Code, ch. 12, § 001