N.M. Admin. Code § 20.11.80.14

Current through Register Vol. 35, No. 20, October 22, 2024

Section 20.11.80.14 - DISCOVERY

Formal discovery is not a right in an administrative enforcement procedure and, therefore, is discouraged. If a party wishes to conduct discovery in addition to the methods of discovery provided in 20.11.80.14 NMAC, additional discovery shall only be allowed by order of the hearing officer.

A. Scope of discovery:

(1) Criteria: Discovery of information that is not privileged or exempt may be permitted if:

(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 elsewhere;

(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:

(a) serve the discovery request directly upon the party from whom discovery is sought; and

(b) file a notice with the hearing clerk; the notice shall include the caption or heading required by Subsection J of 20.11.80.12 NMAC and state 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:

(a) serve the response, including any objections, upon the party making the discovery request; and

(b) file a notice with the hearing clerk; the notice shall include the caption or heading required by Subsection J of 20.11.80.12 NMAC and state 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: Every party from whom discovery is sought has a continuing obligation, subject to any objections interposed that are not overruled by the hearing officer, to supplement responses with relevant information obtained after service of the initial response and any previous supplemental responses. Unless otherwise ordered by the hearing officer, supplemental responses shall be served as soon as practical, but no later than five days after the information became available. If the information becomes available fewer than five days before the hearing or during the hearing, the information 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 or exempt documents, identified by titles, author, date and privilege or protection claimed, shall be provided in response to discovery.

(6) Protective order: Upon motion and for good cause show, the hearing officer may protect the discovery from disclosure. If the motion is granted, the moving party shall not present the protected discovery at the hearing.

(7) Motion to compel; sanctions: A party may move for an order compelling discovery if the party from whom discovery was requested has failed to respond in an adequate or timely manner. The hearing officer may order the response and may impose such sanctions as may be appropriate, including the following:

(a) refusal to allow the testimony of a witness not identified as required by Subsection B of 20.11.80.14 NMAC;

(b) denial of admission of a document that has not been provided as required by Subsection B of 20.11.80.14 NMAC or has not been produced for inspection and copying as required by Subsection C of 20.11.80.14 NMAC;

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

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

B. Witness information; exhibits: Unless otherwise ordered by the hearing officer, within 15 days after receipt of the notice of hearing on the merits or within no fewer than 45 days before the hearing on the merits, whichever is closer to the hearing date, each party shall provide to every other party:

(1) regarding each person who is expected to be called as an expert witness:

(a) the name and address of the person expected to be called as an expert witness;

(b) a complete statement of all opinions the expert witness will express and the basis and reasons for the opinions;

(c) the data or other information considered by the expert witness in forming the opinions of the expert witness;

(d) an estimate of the length of the direct testimony of the expert witness;

(e) a list of exhibits, if any, to be offered into evidence at the hearing on the merits through testimony of the expert witness, and, regarding each exhibit, the name of each expert witness who is expected to testify regarding the exhibit; and

(f) a copy of each exhibit to be offered into evidence at the hearing on the merits through the testimony of the expert witness;

(2) regarding each person who is expected to be called by a party, but not as an expert witness:

(a) the name and address of the witness;

(b) a description of the general subject matter of the anticipated testimony of the witness;

(c) an estimate of the length of the direct testimony of the witness;

(d) a list of exhibits, if any, to be offered into evidence at the hearing on the merits through testimony of the witness; and

(e) a copy of each exhibit to be offered into evidence at the hearing on the merits through testimony of the witness; and

C. Production of documents:

(1) Definition: As used in Subsection C of 20.11.80.14 NMAC, "document" includes the following: any designated documents or electronically stored information, including writings, drawings, graphs, charts, photographs, sound recordings, images and any other data or data compilations, that are stored in any medium from which information can be obtained either directly or, if necessary, after translation, including translation by a responding party, into a reasonably usable form.

(2) Request: If the criteria in Paragraph (1) of Subsection A of 20.11.80.14 NMAC are met, any party may inspect and make copies of any designated documents in the possession or control of a party after serving a written request on the 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 party who has received the request for production shall specify a reasonable time, place and manner for inspecting and copying. Reasonable time means no more than 20 days after service of the request unless a different deadline is established by the hearing officer.

D. Subpoenas:

(1) A party that wishes to have a subpoena issued shall obtain a subpoena form from the hearing clerk. The subpoena form shall be completed by the requesting party and shall:

(a) include the caption or heading and the information required by Subsection J of 20.11.80.12 NMAC; and

(b) command each person to whom it is directed to attend and give testimony or to produce and permit inspection, copying, testing or sampling of designated documents, electronically stored information or other tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place specified in the subpoena.

(2) All subpoenas shall be issued by hearing clerk, who shall sign and date the subpoena.

(3) Pursuant to the authority that has been delegated by the director to the hearing clerk, the hearing clerk shall issue a subpoena, signed but otherwise in blank, to the party requesting the subpoena. The hearing clerk shall not issue a subpoena if the hearing officer issues a protective order as provided by Paragraph (6) of Subsection A of 20.11.80.14 NMAC.

(4) The requesting party shall complete the subpoena form before serving the subpoena. The subpoena shall be served as required by Paragraph (2) of Subsection G of 20.11.80.12 NMAC.

(5) The party that served the subpoena shall file an original proof of service with the record and shall serve a copy on all other parties.

(6) Duties in responding to subpoena.

(a) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business and shall organize and label them to correspond with the categories in the demand.

(b) If a subpoena does not specify the form or forms for producing electronically stored information, a person responding to a subpoena must produce the information in a form or forms in which the person ordinarily maintains it or in a form or forms that are reasonably usable.

(c) A person responding to a subpoena is not required to produce the same electronically stored information in more than one form.

(d) A person responding to a subpoena is not required to provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or to quash, the person from whom discovery is sought must show that the information sought is not reasonably accessible because of undue burden or cost. The hearing officer may order discovery from such sources if the requesting party shows good cause, after taking into consideration the provisions of Paragraph (1) of Subsection A of 20.11.80.14 NMAC regarding scope of discovery and the requirements of Subsection B of 20.11.80.14 NMAC regarding witness information and exhibits.

(e) A party receiving documents under subpoena shall make them available for copying by other parties.

E. Request for admissions: If the criteria in Paragraph (1) of Subsection A of 20.11.80.14 NMAC are met, no fewer than 30 days before the hearing on the merits, 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, unless otherwise ordered by the hearing officer. 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 in the request for admissions shall be deemed admitted unless, within 20 days after service of the request for admission, or a longer or shorter period as the hearing officer may establish, the party to whom the request is directed serves upon the requesting party a sworn written response specifically denying the matter.

N.M. Admin. Code § 20.11.80.14

20.11.80.14 NMAC - N, 8/15/11