Code of Massachusetts Regulations › 360 CMR - MASSACHUSETTS WATER RESOURCE AUTHORITY › Title 360 CMR 1.00 - Adjudicatory Proceedings › HEARING RULES › Section 1.22 - Discovery

Current through Register 1525, July 5, 2024
(1)
Scope of
						Discovery
. Unless otherwise provided by the Presiding Officer or 360
						CMR 1.22, the scope of discovery shall be the same as that allowed under
						Massachusetts law and 360 CMR 1.22 shall be construed in accordance with
						Massachusetts law.
(a)
General
. Subject to the limits of 360 CMR(1)(b) and (c),
						discovery may be obtained as to any matter, not privileged, which is relevant to
						the subject matter involved in the Adjudicatory Proceeding, whether it relates to
						the claim or defense of the Party seeking discovery or to the claim or defense of
						any other Party, including the 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. It is not ground
						for objection that the information sought will be inadmissible at the hearing if
						the information sought appears reasonably calculated to lead to the discovery of
						admissible evidence.
(b)
Material Prepared in Anticipation of Adjudicatory
						Proceeding
. Subject to the provisions of 360 CMR 1.22(c), a Party
						may obtain discovery of documents and tangible things otherwise discoverable
						under 360 CMR 1.22 and prepared in anticipation of or in preparation for an
						Adjudicatory Proceeding by or for another Party or by or for that other 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 such materials when the required showing
						has been made, the Presiding 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 subject matter of the Adjudicatory
						Proceeding.
A Party may obtain without the required showing a statement
							concerning the subject matter of the Proceeding which was previously made by that
							Party. Upon request, a person not a Party may obtain without the required showing
							a statement concerning the action or its subject matter previously made by that
							person. If the request is refused, the person may move for an order from the
							Presiding Officer. For purposes of 360 CMR 1.22(1)(b), a statement previously
							made is a written statement signed or otherwise adopted or approved by the person
							making it, or a stenographic, mechanical, electrical, or other recording, or a
							transcription thereof, which is a substantially verbatim recital of an oral
							statement by the person making it and contemporaneously
							recorded.
(c)
Experts Retained for Purposes of Adjudicatory
						Proceeding
. Discovery of facts known and opinions held by experts,
						otherwise discoverable under 360 CMR 1.22(1)(a) and acquired or developed in
						anticipation of or in preparation for an Adjudicatory Proceeding may be obtained
						only as follows:
1. A Party may through
						interrogatories require any other Party to identify each person whom the other
						Party expects to call as an expert witness at trial, to state the subject matter
						on which the expert is expected to testify, and to state the substance of the
						facts and opinions to which the expert is expected to testify and a summary of
						the grounds for each opinion.
2. A
						Party may through interrogatories require any other Party to identify facts known
						or opinions held by an expert who has been retained or specially employed by
						another Party in anticipation of an Adjudicatory Proceeding or in preparation
						therefor and who is not expected to be called as a witness at the hearing, only
						upon a showing of exceptional circumstances under which it is impracticable for
						the Party seeking discovery to obtain facts or opinions on the same subject by
						other means. Unless manifest injustice would result, the Presiding Officer shall
						require the Party seeking the discovery to pay the expert a reasonable fee for
						time spent in responding to such discovery and may require the Party seeking
						discovery to pay the other Party a fair portion of its fees and expenses
						reasonably incurred by the latter party in obtaining the discovery responses of
						the expert.