What does 49 CFR 386.37 (Discovery) require?

Short answer

49 CFR 386.37 requires parties to obtain discovery through methods such as depositions, written interrogatories, and requests for production of documents, but discovery may not commence until the matter is pending before the Agency Decisionmaker or referred to the Office of Hearings.

The rule says

"Parties may obtain discovery by one or more of the following methods: Depositions upon oral examination or written questions; written interrogatories; request for production of documents or other evidence for inspection and other purposes; physical and mental examinations; and requests for admission." (49 CFR 386.37(a))

"Discovery may not commence until the matter is pending before the Agency Decisionmaker or referred to the Office of Hearings." (49 CFR 386.37(b))

In plain English

This rule allows parties in a proceeding to gather information from each other through various methods, but only after the case is officially underway. The goal is to ensure that all relevant information is shared, while also protecting parties from undue burden or annoyance. In practice, this means that parties will need to wait until the Agency Decisionmaker or Office of Hearings is involved before they can start requesting information from each other.

What to do

• Wait until the matter is pending before the Agency Decisionmaker or referred to the Office of Hearings before commencing discovery.
• Use approved methods of discovery, such as depositions, written interrogatories, and requests for production of documents.
• Be prepared to respond to discovery requests from other parties in a timely and thorough manner.