19 CRR-NY 900-8.6NY-CRR
19 CRR-NY 900-8.6
19 CRR-NY 900-8.6
900-8.6 Disclosure.
(a) Prior to the issues determination.
Discovery is limited to what is afforded under the Freedom of Information Law (New York Public Officers Law – Access to Records). In the absence of extraordinary circumstances, the ALJ shall not grant petitions for further disclosure. This provision does not alter the rights of any person under the Freedom of Information Law, nor does it limit the ability of any party to seek disclosure after the issues determination is made.
(b) Without permission of the ALJ.
Within 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 section 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 section 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 section 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 section 3123; or
(5) lists of documentary or physical evidence to be offered at the hearing.
(6) Electronically stored information (ESI). Unless authorized by the ALJ, disclosure of ESI is limited only to ESI that is located in a computer’s memory or in storage media (including servers, desktop or laptop computers, tablets, cellphones, hard drives, flash drives, compact discs, digital video discs, and portable media players) that is immediately available in the normal course of business.
(c) By permission.
With permission of the ALJ, a party may:
(1) obtain discovery prior to the issues determination;
(2) use discovery devices from the CPLR not provided for in subdivision (b) of this section;
(3) submit late requests for discovery or vary the time for responding to requests; and
(4) access real property in the custody or control of another for the purpose of conducting drilling or other sampling or testing. In such instance, all parties shall be given notice of such activities and be allowed to observe and to take split samples or use other specified methods of verification.
(5) Upon motion of any party demonstrating substantial prejudice, the ALJ may order additional disclosure of ESI beyond that provided for in subdivision (b) of this section, subject to any terms and conditions deemed appropriate by the ALJ. Such a motion shall 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 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. Such a motion shall be submitted within 10 days of the disclosure demand and shall be accompanied by an affidavit of counsel, or by the moving party or other authorized representative if not represented by counsel, reciting 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 ALJ may direct that any party failing to comply with disclosure after being directed to do so by the ALJ suffer preclusion from the hearing of the material demanded. Further, a failure to comply with the ALJ's direction will allow the ALJ or the executive director to draw the inference that the material demanded is unfavorable to the noncomplying party's position.
(e) Pre-filed testimony.
The ALJ shall require the submission of pre-filed written testimony for fact and expert witnesses in advance of an adjudicatory hearing. Such testimony shall be attested to at the hearing and the witness shall be available to be cross-examined on the testimony, unless otherwise stipulated by the parties and directed by the ALJ. Pre-filed written testimony shall provide, or shall be accompanied by, a technical report which 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 10 days’ notice (which time may be shortened or extended by the ALJ), the party submitting pre-filed written testimony may also be required to make available all raw data, laboratory notes, and other basic materials, as well as all items on the bibliography provided.
(f) Subpoenas.
Consistent with the CPLR, any attorney of record in a proceeding 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 executive director, 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. In addition, the sponsor shall be responsible for all costs arising from the issuance of or compliance with the subpoena. A subpoena shall 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 section 2302.
19 CRR-NY 900-8.6
Current through October 31, 2021
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IMPORTANT NOTE REGARDING CONTENT CURRENCY: The "Current through" date indicated immediately above is the date of the most recently produced official NYCRR supplement covering this rule section. For later updates to this section, if any, please: consult editions of the NYS Register published after this date; or contact the NYS Department of State Division of Administrative Rules at [email protected]. See Help for additional information on the currency of this unofficial version of NYS Rules.