Office of Adjudications - Standing Order on Discovery

Discovery is governed by the DEEP Rules of Practice , Regulations of Connecticut State Agencies §§22a-3a-6(n)(1) through (9).  Any party seeking discovery must comply with the requirements of this section.

Requests for Production of Documents

• Discovery is limited to documents.¹    Documents may include but are not limited to the types specified in §22a-3a-6n(3)(A).  Non-privileged documents that are responsive or contain information that is responsive must be must be produced, provided such documents are in the possession, custody or control of the party, intervenor or person upon whom the request is served (party). 
• Documents are in the “possession, custody and control” of a party if that party has the right, authority or ability to obtain those documents on demand.  This includes documents such as a report or another product of a consultant or vendor that may not be authored by the party.
• Parties served with a discovery request are under a continuing obligation to produce non-privileged responsive documents in or coming into their possession or, custody or control.  This includes documents in existence at the time of the request or created after the initial discovery request.  A discovery request may not compel the creation of a document.
• Requests may not be served on anyone who is not represented by an attorney without the permission of the hearing officer.

Objections

• Clarification of definitions² and instructions and any objections, general or specific, must be discussed by the appropriate parties before filing with the Hearing Officer.  Parties must specifically note in their filed objections that attempts were made to resolve them.
• General objections to definitions or instructions, or to requests as “vague”, “ambiguous” and “unduly burdensome” are not necessary and will not be sustained in this administrative forum.  To the extent possible, objections should be limited to individual responses to specific requests and include a rationale for that particular objection.
• General objections that documents sought are privileged will not be upheld.  Responses to specific requests should indicate that some or all responsive documents are privileged and will be included in an attached “privilege log.” ³  Recognized claims of privilege include: attorney-client; attorney work product; agency deliberative process; or documents protected from disclosure pursuant to General Statutes §1-210.
• Objections that documents requested are or may be part of the prehearing exchange (i.e., exhibits, witnesses) will not be sustained.  Such documents must be produced if responsive and in the custody, control or possession of the person served with the request.
• Objections that documents are already in the possession of the requesting party or in DEEP files must include a list of those documents and their location.

Compliance

• Compliance with a request for production means that non-privileged responsive documents must be produced for inspection and copying (at the cost to the person seeking those documents) or the provision of clean and legible copies of those documents.
• Requests for production must specify a reasonable place and manner for production.  To the extent practicable, documents should be produced where they are located and in the order in which they are maintained in the ordinary course of business. 
• Compliance must be in accordance with the Hearing Officer’s scheduling order unless the Hearing Officer has granted a request for an extension of time to comply.  Any request for an extension of time should be served within forty-eight hours of the deadline for compliance and should include a certification that all other parties have been advised of the request and that the parties agree or object to the request.

¹ Requests for interrogatories, admissions or depositions are not permitted.
² Note Office of Adjudications Uniform Definitions attached.

³ Privilege logs must specify:  (1) the type of document; (2) the general subject matter of the document; (3) the date of the document; (4) the author of the document; (5) the intended recipient (s) of the document; and (6) what privilege applies.

Uniform Definitions

• The definitions set forth below may be incorporated by reference into all production requests.  These definitions do not preclude (i) the definition of terms specific to the matter at issue; (ii) the use of abbreviations; or (iii) a narrower definition of the term.
• The following definitions apply to all production requests unless otherwise determined by the Hearing Officer.

The Office of Adjudications encourages all parties to conduct prehearing discovery voluntarily and informally.  For additional information on discovery procedures, review the Office of Adjudications Guidelines for Discovery: Requesting the Production of Documents in Permit Application Hearings.