DEEP: Guidelines for Discovery

Office of Adjudications

Guidelines for Discovery:
Requesting the Production of Documents
In Permit Application Hearings
Tips:
Exchange information voluntarily.
Use best efforts to resolve disputes informally.
Stay focused on the issues to be adjudicated.
Get familiar with the DEEP Rules of Practice.
Review the Office of Adjudications Standing Order on Discovery.
Purpose of Discovery
Discovery is a tool that is used by parties to gather relevant information about a case prior to the hearing. In DEEP hearings, the discovery process is limited to requesting and reviewing documents.  Parties may only obtain the information they seek by asking other parties to make specified documents available for inspection or copying.   The purpose of discovery is to help the parties prepare for a hearing by providing them with information that could be essential to the issues that must be decided, and to avoid surprises, narrow the issues, and promote settlement. 
Explanation and Scope of Discovery
Requesting the production of documents is a means to obtain relevant information that a party does not already have in its possession.  Relevant information is information directly related to the issues in the case.  The DEEP Rules of Practice and the Office of Adjudications Standing Order on Discovery govern the discovery process.
 
Requests for documents can cover any nonprivileged matter related to the issues involved in the hearing. Examples of privileged documents might be correspondence between an attorney and his or her clients or materials that would reveal trade secrets of a business. (Other examples are outlined in the Standing Order on Discovery).  The Hearing Officer assigned to the case may impose limits on the extent and scope of discovery once the issues for adjudication have been determined.
Discovery vs. File Review
  1. Parties and Non-party Intervenors.  Any party to a contested case proceeding is entitled to use the discovery process to obtain information about the matter that is the subject of the hearing.  Parties include applicants, DEEP staff, intervening parties and other individuals or entities that may be granted party status by statute.  Persons or entities that have been granted non-party intervenor status are also entitled to discovery.
     
         
  2. Petitioners for hearing.  Petitioners may be individuals, groups, municipalities, organizations or other entities that have requested a hearing on an application.  Petitioners are not parties and are not entitled to conduct discovery.  However, when a hearing is requested, the permit application and other related documents that were reviewed and considered by the DEEP in arriving at its tentative determination will be made available to the parties and the petitioner for review.  At the time a petition for hearing is submitted to the Office of Adjudications, a Prehearing Directive and Notice of Status Conference will be sent to the parties and to the petitioner.  This notice will provide instructions on the arrangements that can be made for review of these materials.
Petitioners who intend to participate in the status conference are encouraged to review the application materials beforehand to be fully prepared to discuss their issues or objections related to the application.  In addition, Public Act 10-158 makes it possible for petitioners to designate one individual to engage in discussions regarding the application and, if their issues are resolved, to withdraw the petition for hearing.  Early review of the application materials may help to facilitate discussions that could result in the withdrawal of the petition for a hearing. 
Discovery Procedures
  1. Start Early.  Discovery may begin after a petition for hearing has been filed or after the Commissioner, in the exercise of discretion, has scheduled a hearing on an application.  Parties, after reviewing the DEEP application file, are encouraged to plan for their discovery needs and exchange information voluntarily.  Even if voluntary efforts are unsuccessful in completing full discovery, parties may obtain sufficient information to enable them to have meaningful discussions regarding limitation of issues for hearing, stipulations of facts, settlement, or withdrawal of petitions for hearing.
  2. Schedule for discovery.  If discovery is proceeding on a voluntary basis but is not yet complete or if the parties have determined that voluntary discovery is possible but has not yet started, they should advise the Hearing Officer at the status conference.  A schedule for completing voluntary discovery may be established at that time.  At any time that the parties demonstrate that voluntary efforts have been unsuccessful, the parties may request, or the Hearing Officer may require, a discovery conference to identify the issues to be adjudicated and to establish the proper scope of discovery.
When voluntary attempts have failed, or where the complexity of the case makes informal discovery impracticable, discovery will be conducted in accordance with the procedures and schedules set forth in the DEEP Rules of Practice and the Office of Adjudications Standing Order on Discovery.  The Hearing Officer will issue a scheduling order that will advise the parties of the date for serving discovery requests, the time for filing objections, the date by which discovery must be completed, and any limitations on the extent and scope of discovery.  Written objections must be submitted to the Hearing Officer, with copies to all parties.  The Hearing Officer will issue a ruling on the objections and set any additional deadlines for compliance.  
 
A formal discovery process may require several months to complete.  Where appropriate, the Hearing Officer and the parties may expedite the process.  In lieu of filing written objections, an objecting party may advise the Hearing Officer and all other parties that it intends to request a discovery conference after verifying to the Hearing Officer that the parties have used their best efforts to resolve the objections.  The verification will include the specific requests that have been the subject of objections.  Once notified, the Hearing Officer will schedule a conference on the objections as soon as possible.  During the conference, the Hearing Officer will hear all arguments on the objections, will sustain or overrule each objection and establish any new compliance deadlines.  The Hearing Officer will also issue a written confirmation of the rulings. 
  1. Prompt responses.  Discovery can occur efficiently and expeditiously through voluntary efforts or by prompt responses, swift resolution of disputes, and prompt action by the Hearing Officer, when needed.  In this regard, parties are encouraged to agree to use expedited means to comply with discovery such as email or facsimile.  Documents that are not easily scanned should be mailed separately or made available for inspection in a timely manner.
The parties should make good faith and timely efforts to resolve any disputes over discovery requests and should file the verification of any unsuccessful attempts with the Hearing Officer as soon as practicable.  When a conference is required, the Hearing Officer will advise the parties of the earliest meeting date available. 
Compliance and Sanctions
If formal discovery is proceeding, a responding party must comply with a request for documents within fourteen days of service of the written request or by any other deadline established by the Hearing Officer.  Compliance with a request or an objection to a request must be in accordance with the DEEP Rules of Practice and the Office of Adjudications Standing Order on Discovery.   When producing documents, a party must provide responsive, non-privileged documents to the requesting party or  allow the requesting party access to the documents for inspection and copying.  Standard objections to discovery requests are provided in the Standing Order on Discovery
If a party fails to object to a request for documents or to comply with the request in good faith, the Hearing Officer is authorized to impose sanctions that the Hearing Officer considers just and appropriate under the circumstances.  Sanctions can include, but are not limited to, continuing the proceeding, excluding testimony or other evidence and drawing an adverse inference against the noncomplying party.  Sanctions may be imposed on the Hearing Officer’s own initiative or on motion of the requesting party.
View a sample format for a request for production of documents.