# COMAR Title 26 — Department of the Environment

## Subtitle 20 — Surface Coal Mining and Reclamation Under Federally Approved Program

### Chapter 35 — Discovery During Adjudicatory Hearings

**Authority:** Environment Article, §15-503, Annotated Code of Maryland

**Administrative History:** Effective date:

**Administrative History:** Regulations .01—.12 were previously codified as COMAR 08.13.09.44A—L, respectively. Recodification occurred in April, 1993. For a history of these regulations before April, 1993, see "Administrative History of COMAR 08.13.09 before April, 1993" which follows COMAR 26.20.01.

**Administrative History:** Chapter recodified from COMAR 08.20.35 to COMAR 26.20.35, June 1996

#### Regulation .01 Discovery Methods.

*COMAR 26.20.35.01*

Parties may obtain discovery by one or more of the following methods:

A. Depositions upon oral examination or upon written interrogatories;

B. Written interrogatories;

C. Production of documents or things or permission to enter upon land or other property, for inspection and other purposes; and

D. Requests for admission.

#### Regulation .02 Time for Discovery.

*COMAR 26.20.35.02*

Following the initiation of a proceeding, the parties may initiate discovery at any time as long as it does not interfere with the conduct of the hearing.

#### Regulation .03 Scope of Discovery.

*COMAR 26.20.35.03*

A. Unless otherwise limited by order of the hearing officer, the parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding, 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.

B. It is not ground for objection that information sought will not be admissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

C. A party may obtain discovery of documents and tangible things otherwise discoverable under §A of this regulation and prepared in anticipation of or for the hearing by or for another party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of these materials when the required showing has been made, the hearing officer shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the proceeding.

D. Upon motion by a party or the person from whom discovery is sought, and for good cause shown, the hearing officer 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:

  (1) The discovery may not be had;

  (2) The discovery may be had only on specific terms and conditions, including a designation of the time or place;

  (3) The discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

  (4) Certain matters not relevant may not be inquired into, or that the scope of discovery be limited to certain matters;

  (5) Discovery be conducted with no one present except persons designated by the hearing officer; or

  (6) A trade secret or other confidential research, development, or commercial information may not be disclosed or be disclosed only in a designated way.

#### Regulation .04 Sequence and Timing of Discovery.

*COMAR 26.20.35.04*

Unless the hearing officer, 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, may not operate to delay any other party's discovery.

#### Regulation .05 Supplementation of Responses.

*COMAR 26.20.35.05*

A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:

A. A party is under duty to supplement timely his response with respect to any question directly addressed to:

  (1) The identity and location of persons having knowledge of discoverable matters, and

  (2) The identity of each person expected to be called as an expert witness at the hearing, the subject matter on which he is expected to testify, and the substance of his testimony;

B. A party is under a duty to amend timely a prior response if he later obtains information upon the basis of which:

  (1) He knows the response was incorrect when made; or

  (2) He 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;

C. A duty to supplement responses may be imposed by order of the hearing officer or agreement of the parties.

#### Regulation .06 Motion to Compel Discovery.

*COMAR 26.20.35.06*

A. If a deponent fails to answer a question propounded, or a party upon whom a request is made pursuant to Regulation .11 of this chapter, or a party upon whom answers to interrogatories are served fails to adequately respond or objects to the request, or any part of it, or fails to permit inspection as requested, the discovering party may move the hearing officer for an order compelling a response or inspection in accordance with the request.

B. The motion shall set forth the following:

  (1) The nature of the questions or request;

  (2) The response or objection of the party upon whom the request was served; and

  (3) Arguments in support of the motion.

C. For purposes of this regulation, an evasive answer or incomplete answer or response shall be treated as a failure to answer or respond.

D. In ruling on a motion made pursuant to this regulation, the hearing officer may make such protective order as he is authorized to make on a motion made pursuant to Regulation .03D of this chapter.

#### Regulation .07 Failure to Comply with Orders Compelling Discovery.

*COMAR 26.20.35.07*

If a party or an officer, director, or other agent of a party fails to obey an order to provide or permit discovery, the hearing officer may make such orders in regard to the failure as are just, including but not limited to the following:

A. An order that the matters sought to be discovered or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

B. An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters into evidence; or

C. An order striking out pleadings or parts of them, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.

#### Regulation .08 Depositions upon Oral Examination or upon Written Questions.

*COMAR 26.20.35.08*

A. Any party desiring to take the testimony of any other party or other person by deposition upon oral examinations or written questions shall, without leave of the hearing officer, give reasonable notice in writing to every other party, to the person to be examined, and to the hearing officer, of the following:

  (1) The proposed time and place of taking the deposition;

  (2) The name and address of each person to be examined, if known, or, if the name is not known, a general description sufficient to identify him or the particular group or class to which he belongs;

  (3) The matter upon which each person will be examined; and

  (4) The name or descriptive title and address of the officer before whom the deposition is to be taken.

B. A deposition may be taken before any officer authorized to administer oaths by the laws of the United States or of the place where the examination is held.

C. The actual taking of the deposition shall proceed as follows:

  (1) The deposition shall be on the record;

  (2) The officer before whom the deposition is to be taken shall put the witness on oath or affirmation;

  (3) Examination and cross-examination shall proceed as at a hearing;

  (4) All objections made at the time of the examination shall be noted by the officer upon the deposition;

  (5) The officer may not rule on objections to the evidence, but evidence objected to shall be taken subject to the objections.

D. When the testimony is fully transcribed, the deposition shall be submitted to the deponent for examination and signature, unless examination and signature are waived by the deponent. The officer shall certify the deposition or, if the deposition is not signed by the deponent, shall certify the reasons for the failure to sign.

E. If the deposition is to be taken upon written questions, the party taking the deposition shall serve a copy of the questions, showing each question separately and consecutively numbered, on every other party with a notice stating the name and address of the person who is to answer them, and the name, description, title, and address of the officer before whom they are to be taken. Within 30 days after service, any other party may serve cross-questions. The questions, cross-questions, and answers shall be recorded and signed, and the deposition certified, as in the case of a deposition on oral examination.

F. A deposition will not become a part of the record in the hearing unless received in evidence. If only part of a deposition is offered in evidence by a party, any other party may introduce any other parts.

G. A deponent whose deposition is taken and the officer taking a deposition shall be entitled to the same fees as are paid for like services in the district courts of the United States, to be paid by the party at whose instance the deposition is taken.

H. The deponent may be accompanied, represented, and advised by legal counsel.

#### Regulation .09 Use of Depositions.

*COMAR 26.20.35.09*

A. At the hearing, any part or all of a deposition, so far as admissible, may be used against any party who was present or represented at the taking of the deposition, or who had reasonable notice of it.

B. Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of a deponent as a witness.

C. The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent or a person designated to testify on behalf of a public or private corporation, partnership, or association or governmental agency which is a party, may be used by an adverse party for any purpose.

D. The deposition of a witness, whether or not a party, may be used by a party for any purpose, if the hearing officer finds that:

  (1) The witness is dead;

  (2) The witness is at a distance greater than 100 miles from the place of hearing, or is outside the United States, unless it appears that the absence of the witness was procured by the party offering the deposition;

  (3) The witness is unable to attend or testify because of age, illness, infirmity, or imprisonment;

  (4) The party offering the deposition has been unable to procure the attendance of the witness by subpoena; or

  (5) Exceptional circumstances exist that make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally at the hearing, to allow the deposition to be used.

#### Regulation .10 Written Interrogatories to Parties.

*COMAR 26.20.35.10*

A. Any party may serve upon any other party written interrogatories to be answered in writing by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish this information as is available to the party. A copy of the interrogatories, answers, and all related pleadings shall be served on the hearing officer and upon all parties to the proceeding.

B. Each interrogatory shall be answered separately and fully in writing under oath or affirmation, unless it is objected to, in which event the reasons for objection shall be stated instead of an answer. The answer and objections shall be signed by the person making them. The party upon whom the interrogatories were served shall serve a copy of the answers and objections upon all parties to the proceeding within 30 days after service of the interrogatories, or within such shorter or longer period as the hearing officer may allow.

C. Interrogatories may relate to any matters which can be inquired into under Regulation .03 of this chapter. An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the hearing officer may order that such an interrogatory need not be answered until after designated discovery has been completed or until a prehearing conference or other later time.

#### Regulation .11 Production of Documents and Things and Entry upon Land for Inspection and Other Purposes.

*COMAR 26.20.35.11*

A. Any party may serve on any other party a request to:

  (1) Produce and permit the party making the request, or a person acting on his behalf, to inspect and copy any designated documents, or to inspect and copy, test, or sample any tangible things within the scope of Regulation .03 of this chapter and which are in the possession, custody, or control of the party upon whom the request is served; or

  (2) Permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property (including the air, water, and soil) or any designated object or operation on it, within the scope of Regulation .03 of this chapter.

B. The request may be served on any party without leave of the hearing officer.

C. The request shall:

  (1) Set forth the items to be inspected either by individual item or by category;

  (2) Describe each item or category with reasonable particularity; and

  (3) Specify a reasonable time, place, and manner of making the inspection and performing the related acts.

D. The party upon whom the request is served shall serve on the party submitting the request a written response within 30 days after service of the request.

E. The response shall state, with respect to each item or category:

  (1) That inspection and related activities will be permitted as requested; or

  (2) That objection is made in whole or in part, in which case the reasons for objection shall be stated.

#### Regulation .12 Admissions.

*COMAR 26.20.35.12*

A. A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the genuineness and authenticity of any relevant document described in or attached to the request, or for the admission of the truth of any specified relevant matter of fact.

B. Each matter of which an admission is requested is admitted unless, within 30 days after service of the request or such shorter or longer time as the hearing officer may allow, the party to whom the request is directed serves on the requesting party:

  (1) A sworn statement denying specifically the relevant matters of which an admission is requested;

  (2) A sworn statement setting forth in detail the reasons why he can neither truthfully admit nor deny them; or

  (3) Written objections on the ground that some or all of the matters involved are privileged or irrelevant or that the request is otherwise improper in whole or in part.

C. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny.

D. The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the hearing officer determines that an objection is justified, he shall order that an answer be served. If the hearing officer determines that an answer does not comply with the requirements of this regulation, he may order either that the matter is admitted or that an amended answer be served. The hearing officer may, in place of these orders, determine that final disposition of the request be made at a prehearing conference or at a designated time before hearing.

E. Any matter admitted under this section is conclusively established unless the hearing officer on motion permits withdrawal or amendment of the admission.

F. Any admission made by a party under this section is for the purpose of pending action only and is not an admission by him for any other purpose and may not be used against him in any other proceeding.