The following types of discovery are authorized:

Requests for production of documents for inspection and copying;

Requests for admission of the authenticity of any relevant document or of the truth of any relevant fact;

Written interrogatories; and

Depositions.

For the purpose of this section and §§ 308.521 and 308.522 of this subpart, the term documents includes information, documents, reports, answers, records, accounts, papers, and other data or documentary evidence. Nothing contained in this subpart will be interpreted to require the creation of a document.

Unless mutually agreed to by the parties, discovery is available only as ordered by the ALJ. The ALJ will regulate the timing of discovery.

Motions for discovery. (1) A party seeking discovery may file a motion with the ALJ and a copy of the requested discovery, or in the case of depositions, a summary of the scope of the proposed deposition, must accompany such motions.

Within 10 days of service, a party may file an opposition to the motion and/or a motion for protective order as provided in § 308.523 of this subpart.

The ALJ may grant a motion for discovery only if he or she finds that the discovery sought:

Is necessary for the expeditious, fair, and reasonable consideration of the issues;

Is not unduly costly or burdensome;

Will not unduly delay the proceeding; and

Does not seek privileged information.

The burden of showing that discovery should be allowed is on the party seeking discovery.

The ALJ may grant discovery subject to a protective order under § 308.523 of this subpart.

Dispositions. (1) If a motion for deposition is granted, the ALJ will issue a subpoena for the deponent, which may require the deponent to produce documents. The subpoena will specify the time, date, and place at which the deposition will be held.

The party seeking to depose must serve the subpoena in the manner prescribed in § 308.507 of this subpart.

The deponent may file with the ALJ a motion to quash the subpoena or a motion for a protective order within 10 days of service.

The party seeking to depose must provide for the taking of a verbatim transcript of the deposition, and must make the transcript available to all other parties for inspection and copying.

Each party must bear its own costs of discovery.