N.Y. Comp. Codes R. & Regs. tit. 6 § 624.7

Current through Register Vol. 46, No. 45, November 2, 2024

Section 624.7 - Disclosure

(a) 'Prior to the issues conference.' Disclosure is limited to what is afforded under Part 616 of this Title (Access to Records). In the absence of extraordinary circumstances, the ALJ will not grant petitions for further disclosure. This provision does not alter the rights of any person under Part 616 of this Title nor does it limit the ability of any party to seek disclosure after the issues conference.

(b) 'Without permission of the ALJ.' Within ten (10) days after service of the final designation of the issues any party has the right to serve a disclosure demand upon any other party demanding that party provide:

(1) documents, in general conformance with CPLR 3120(a)(1)(i);

(2) a list of witnesses to be called, their addresses, and the scope and content of each witness's proposed testimony, and the qualifications and published works of each, in general conformance with CPLR 3101(d)(1), except that disclosure of fact witnesses as well as expert witnesses may be demanded;

(3) an inspection of property, in general conformance with CPLR 3120(a)(1)(ii), except that drilling and other intrusive sampling and testing is not provided as of right;

(4) a request for admission, in general conformance with CPLR 3123;

(5) lists of documentary or physical evidence to be offered at the evidentiary hearing; or

(6) potentially relevant electronically stored information (ESI) limited to active data only.

(c) 'By permission.' With permission of the ALJ, a party may:

(1) obtain disclosure prior to the issues conference;

(2) use disclosure devices from the CPLR not provided for in subdivision (b) of this section;

(3) submit late requests for disclosure or vary the time for responding to requests;

(4) access real property in the custody or control of another for the purpose of conducting drilling or other sampling or testing. In that instance, all parties must be given notice of the proposed activities and be allowed to observe, and full parties allowed to take split samples or use other specified methods of verification; and

(5) upon a demonstration of substantial prejudice, obtain disclosure of potentially relevant ESI not provided for in paragraph (b)(6) of this section, subject to any terms and conditions deemed appropriate by the ALJ. The motion for additional disclosure of potentially relevant ESI must be accompanied by an affirmation of an attorney, or an affidavit of the moving party if not represented by an attorney, describing the good faith efforts to resolve the dispute without resort to a motion.

(d) 'Protective order and motion to compel.'

(1) A party against whom disclosure is demanded may make a motion to the ALJ for a protective order, in general conformance with CPLR Section 3103, to deny, limit, condition or regulate the use of any disclosure device in order to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice. The motion must be submitted within ten (10) days of the disclosure demand and must be accompanied by an affirmation of an attorney, or an affidavit of the moving party or other authorized representative if not represented by an attorney, describing the good faith efforts to resolve the dispute without resort to a motion.

(2) If a party fails to comply with a disclosure demand without having made a timely objection, the proponent of the disclosure demand may apply to the ALJ to compel disclosure. The motion must be accompanied by an affirmation of an attorney, or an affidavit of the moving party or other authorized representative if not represented by an attorney, describing the good faith efforts to resolve the dispute without resort to a motion.

(3) Sanctions. Upon failure by a party to comply with a ruling or order by the ALJ or the commissioner to produce material or information demanded in disclosure, the ALJ or commissioner may exclude the material or information. In addition, the ALJ or the commissioner may draw an adverse inference regarding the non-producing party with respect to the material or information the party did not produce or grant other appropriate relief consistent with CPLR 3126. The award of attorneys' fees or other costs is not authorized.

(e) 'Pre-filed testimony.' The ALJ may require the submission of pre-filed written testimony for expert witnesses. Pre-filed written testimony must be attested to at the evidentiary hearing and the witness must be available to be cross-examined on the testimony, unless otherwise stipulated by the parties and directed by the ALJ. Whenever the ALJ requires the submission of pre-filed testimony, the testimony must provide, or must be accompanied by a technical report that provides, a full explanation of the basis for the views set forth therein, including data, tables, protocols, computations, formulae, and any other information necessary for verification of the views set forth, as well as a bibliography of reports, studies and other documents relied upon. Upon ten (10) days notice (which time may be shortened or extended by the ALJ) the party submitting pre-filed testimony may also be required to make available all raw data, well logs, laboratory notes, and other basic materials, as well as all items on the bibliography provided. Whenever pre-filed testimony is not required, any party may demand, from any other party or the department propounding an expert witness, all backup information that would be required in connection with pre-filed testimony.

(f) 'Subpoenas.' Consistent with the CPLR, any attorney of record in a proceeding under this Part has the power to issue subpoenas. A party who is not represented by an attorney admitted to practice in New York State may request the ALJ or, if no ALJ has been assigned to the proceeding, the Chief ALJ, to issue a subpoena, stating the items or witnesses needed by the party to present its case. The service of a subpoena is the responsibility of its sponsor. A subpoena must give notice that the ALJ may quash or modify the subpoena pursuant to the standards set forth under CPLR article 23. This Part does not affect the authority of an attorney of record for any party to issue subpoenas under the provisions of CPLR 2302. A subpoena duces tecum to be served upon a library, other department or bureau of a municipal corporation or of the State, or an officer thereof, requiring the production of any books, papers or other things, may be issued consistent with CPLR 2307 by the ALJ assigned to the proceeding or, if no ALJ has been assigned to the proceeding, the Chief ALJ.

(g) When department staff seeks the revocation of a license or permit previously granted by the department, either party must, upon demand and at least seven (7) days prior to the evidentiary hearing, disclose the evidence that the party intends to introduce at the evidentiary hearing, including documentary evidence and identification of witnesses; provided, however, the provisions of this subdivision do not require the disclosure of information or material otherwise protected by law from disclosure, including information and material protected because of privilege or confidentiality. If, after the disclosure, a party determines to rely upon other witnesses or documentary evidence, the party must, as soon as practicable, supplement its disclosure by providing the names of the witnesses or the documentary evidence.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 624.7

Adopted New York State Register August 21, 2024/Volume XLVI, Issue 34, eff. 8/21/2024