N.M. Admin. Code § 20.1.5.300

Current through Register Vol. 36, No. 1, January 14, 2025

Section 20.1.5.300 - DISCOVERY

A. Scope of Discovery:

(1) Grounds: For a ULA Hearing, discovery shall be governed by the provisions of the ULA. Discovery of information not privileged may be permitted if it meets the following:

(a) the discovery will not unreasonably delay the proceeding;

(b) the information to be obtained is not unreasonably cumulative or duplicative, or not otherwise reasonably obtainable;

(c) the discovery is not unreasonably burdensome; and

(d) there is a substantial reason to believe that the information sought will be admissible at the hearing or will be likely to lead to the discovery of admissible evidence.

(2) Request: Unless otherwise directed by the Hearing Officer, a party requesting discovery shall serve the discovery request directly upon the party from whom discovery is sought and shall file a notice with the Hearing Clerk, indicating the date of service of the discovery request, the type of discovery sought and the party from whom discovery is sought.

(3) Response to Discovery Request: A party responding to a discovery request shall serve the response, including any objections, upon the party making the discovery request and shall file a notice with the Hearing Clerk, indicating the date of service of the response, the type of discovery request being responded to, and the party upon whom the response was served.

(4) Continuing Obligation to Supplement Responses: Any party from whom discovery is sought has a continuing obligation, subject to any objections interposed and not overruled by the Hearing Officer, to supplement responses with relevant information obtained after serving of the initial response and any previous supplemental responses. Unless otherwise ordered by the Hearing Officer, supplemental responses shall be served as soon as practicable, but no later than five (5) days from when the information became available. If the information becomes available less than five days before the hearing or during the hearing, it shall be brought to the attention of the Hearing Officer for direction and ruling on use of the information.

(5) Privilege: A list of privileged documents, identified by titles, author, date, and privilege or protection claimed shall be provided in response to discovery.

(6) Protective Order: The Hearing Officer may, upon motion and for good cause shown, protect the discovery from disclosure. If such motion is granted, the moving party may not present the protected discovery at the hearing.

(7) Motion to Compel, Sanctions: A party may move for an order compelling discovery where the party from whom discovery was requested has failed to adequately or timely respond. The Hearing Officer may order the response and may impose such sanctions as may be appropriate, including but not limited to the following:

(a) refusal to allow the testimony of a witness not identified as required by Section 301 [Subsection B. of this Section];

(b) denial of admission of a document not disclosed as required by Section 302; [Subsection C. of this Section]

(c) drawing of adverse inferences against the non-responsive party; and

(d) in an extreme case, dismissal or default judgment against the non-responding party.

B. Identity of Witness: Except as provided in Subsection B of this Section [Paragraph (2) of Subsection A. of this Section] or allowed by the Hearing Officer, each party shall, within fifteen (15) days after receipt of notice of the scheduling of the hearing or within forty-five (45) days before the hearing, whichever is closer to the hearing date, provide the name and address of each person expected to be called as a witness and a description of the general subject matter of the anticipated testimony of each witness.

C. Production of Documents:

(1) Definition: As used in this Subpart, "document" includes writings, memos, correspondence, financial information, drawings, graphs, charts, photographs, video tapes and other data compilations from which information can be obtained, and if necessary, translated by the party through detection devices into reasonably usable form. In addition, each copy of a document that is not identical in all respects to every other copy shall be considered a separate document.

(2) Request: Provided the grounds in Section 300.A [Paragraph (1) of Subsection A. of this Section] are met, any party, upon written request to another party, may inspect and make copies of any designated documents in the possession or control of the other party. The request shall set forth the items to be inspected either by individual item or by category and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place and manner of making the inspection and copies. Reasonable time means not less than twenty (20) days after service of the request in the case of a Compliance Order and not less than ten (10) days after service of the request in the case of a Compliance Determination.

D. Subpoenas: As allowed by the Act, the Hearing Clerk shall, upon written request by any party, issue a subpoena requiring the attendance and testimony of any witness and the production of any evidence in the possession or under the control of the witness at the hearing or at deposition authorized by the Hearing Officer under Section 304 [Subsection E. of this Section]. A subpoena may be issued with the name and address of the witness blank, to be completed by the requesting party.

E. Request for Admissions: Provided the grounds in Section 300.A [Paragraph (1) of Subsection A. of this Section] are met, any party may serve upon any other party a written request for the admission of any statement or opinion of fact or the application of law to fact, including the genuineness of any document. If the request includes a request for admission of the genuineness of a document, the document shall be attached to the request unless it has been or is otherwise furnished or made available for inspection and copying. Each statement shall be deemed admitted unless, within twenty (20) days after service of the Request, or such longer or shorter period as the Hearing Officer may prescribe, the party to whom the request is directed serves upon the requesting party a sworn written response specifically denying such matter.

F. Depositions and Interrogatories:

(1) Motion: Requests for Depositions and Interrogatories must be made by motion to the Hearing Officer and may be permitted only upon determination by the Hearing Officer that the Grounds listed in Section 300.A [Paragraph (1) of Subsection A. of this Section] are met.

(2) Order: Upon determining that a motion for depositions or interrogatories should be granted, the Hearing Officer shall issue an order for the taking of such discovery together with any conditions and terms of the discovery.

N.M. Admin. Code § 20.1.5.300

11/15/90, 11/30/95; 20.1.5.300 NMAC - Rn, 20 NMAC 1.5.III.300 through 305, Recompiled 11/27/01