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Practice and procedure before the Office of Administrative Law Judges: discovery tools available to the parties.

I. INTRODUCTION

Discovery practice in Longshore and Defense Base Act claims before the Office of Administrative Law Judges is in many respects more complicated than in federal district court tort cases. The Federal Rules of Civil Procedure provide the basic framework for navigating the discovery process in federal district court. In a Longshore or Defense Base Act case the practitioner must apply various statutory guidelines including those contained in the Rules of Practice and Procedure for Administrative Hearing Before the Office of Administrative Law Judges, 29 CFR 18, Subpart A, the Federal Rules of Civil Procedure, and Employment Standards Administration Regulations under the Longshore and Harbor Workers' Compensation Act, as extended, 20 CFR [section]701.

The current OALJ Rules of Practice and Procedure were published on July 15, 1983. (1) When published, the OALJ Rules closely tracked the Federal Rules of Civil Procedure. An attorney wishing to conduct discovery in a Longshore case circa 1983 would have found it very similar to practicing a tort case in federal district court. The Federal Rules of Civil Procedure were amended on numerous occasions since 1983 including 1987, 1993, 2000, 2006, 2007, 2009 & 2010. (2) Discovery practice in federal district court has significantly changed since 1983. However, the OALJ Rules of Practice and Procedure have not been amended. (3)

Amendments to the OALJ rules occurred in 1994 to eliminate the routine filing of documents relating to discovery and to modify regulations requiring filing or service of documents. (4) The OALJ Rules were amended in 1999 to extend use of settlement judges in Longshore, Defense Base Act, Outer Continental Shelf Lands Act and Nonappropriated Fund Instrumentalities Act cases. (5) They have not been amended since 1999. (6)

Currently, the OALJ Rules do not provide clear-cut direction as to when a litigant may rely on the Federal Rules of Civil Procedure. (7) This is problematic because Administrative Law Judges often cite the Federal Rules of Civil Procedure when ruling on Longshore or Defense Base Act discovery issues. (8)

29 CFR [section]18.1(a) [hereafter [section]18.1(a)] dictates that OALJ Rules cannot supercede statutes, executive orders or regulations. (9) [section]18.1(a) further provides the Federal Rules of Civil Procedure shall apply in any situation not provided for or controlled by the OALJ Rules or by statute, executive order or regulation. (10) An Administrative Law Judge may modify any rule upon a finding that no party will be prejudiced and that the ends of justice will be served. (11)

The Department of Labor is attempting to clarify when to rely upon the Federal Rules of Civil Procedure in the proposed amendments to the OALJ Rules. (12) Even with the proposed amendments, it is likely that discovery practice in a Longshore or Defense Base Act case will continue to apply directives set forth in both the OALJ Rules and the Federal Rules of Civil Procedure.

II. TIMING OF DISCOVERY

Longshore and Defense Base Act claims are frequently litigated within the District Director's jurisdiction for substantial periods of time. (13) District Directors and Department of Labor Claims Examiners typically instruct parties to exchange Longshore forms and medical records. (14) The process is voluntary and informal. Parties typically cooperate in voluntarily exchanging information. If opposing counsel is not forthcoming, an attorney must pursue formal discovery.

In Maine vs. Brady-Hamilton Stevedore Co., (15) the employer requested the District Director issue a subpoena compelling claimant to appear for deposition and produce certain documents. (16) The District Director denied these requests. (17) The employer appealed the District Director's decision to the Benefit Review Board. (18) The employer argued Sections 19(a), 23(a) and 27(a) of the Longshore Act gives the District Director full power and authority to hear and determine all questions pertaining to claims, conducting investigations and compelling discovery. The Benefits Review Board held that prior to the 1972 amendment, these provisions reflected the dual roles of the Deputy Commissioner as adjudicator and administrator. (19) Sections 19, 23 and 27 of the Longshore Act cannot be read in isolation because they were significantly affected by the 1972 amendments. (20) The Benefits Review Board held "[t]hese amendments added Section 19(d) which transferred to [Administrative Law Judges] the adjudicative functions formerly held by the Deputy Commissioner." (21) The Board further held Section 19(d) makes it clear that all adjudicatory functions reside only in the ALJ. (22) The touchstone of the informal nature of the proceeding before the District Director is voluntary, complete and open cooperation in the resolution of the dispute between the parties. (23) The ruling confirmed that if evidence is sought by compulsory process, it may be produced only through the authority of an Administrative Law Judge. (24) The Board held the subpoena power is solely an adjunct of the Administrative Law Judge's authority to conduct formal adjudication. (25)

If a party refuses to produce evidence at the District Director level, the requesting party can apply to the Chief Administrative Law Judge for a subpoena. (26) The case remains at the District Director level pending issuance of the subpoena. (27) Once the Administrative Law Judge has issued the subpoena, the informal proceeding can continue. (28) The Board indicated this procedure should be necessary only in a few cases where the informal nature of the pre-hearing investigatory process breaks down. (29)

It is the position of the Office of Administrative Law Judges that in LHWCA cases, the OALJ has the exclusive authority to issue subpoenas regardless of whether the case is before the OWCP or before them. (30) All requests for subpoenas in cases pending before the OALJ should be directed to their National Office in Washington, D.C. or to the appropriate OALJ District Office. (31)

Notwithstanding the Board's ruling in Maine, it is not uncommon for District Directors to issue subpoenas. (32) While these subpoenas are regularly issued without objection, the Maine case offers practitioners a reasonable basis for opposing a District Director's subpoena request.

In Armani vs. Global Linguist Solutions, the court further explored an ALJ's authority to issue a subpoena when a claim is pending before the District Director, specifically in a case involving a Defense Base Act claim. (33) There was no dispute in the DBA claim but the employer believed the facts may have supported coverage under the War Hazards Compensation Act. (34) Claimant was unwilling to be deposed during the informal phase. (35) As a result, the employer filed a motion with the OALJ to compel claimant's deposition. (36) "Claimant objected contending the ALJ lacked jurisdiction to issue a subpoena while the case was pending before the District Director." (37) Claimant volunteered to attend an informal conference and give a statement without resorting to a formal deposition. (38) The OALJ rejected this compromise and issued the subpoena. (39) Consequently, claimant appealed to the Benefits review Board. (40)

The Board quashed the subpoena, albeit on narrower grounds than those advanced by claimant. (41) The Board ruled that an ALJ did not lack authority to issue a pre-referral subpoena. (42) Instead, they cited the language in Maine that provides "if a party refuses to produce requested evidence, the other party may apply for a subpoena with the OALJ." (43) Therefore, under both Maine and Armani, should an opponent attempt to frustrate pre-hearing discovery and the issuance of a subpoena be necessary, the parties may apply to the OALJ for the subpoena. (44)

Armani stands for the proposition that an ALJ may issue a subpoena upon application from a party whose case is still at the informal level before the OWCP only when it is necessary to do so. (45) To be "necessary" a party must refuse to produce the requested evidence. (46) The Board ruled that Armani is "not one of few cases where the informal nature of the pre-hearing investigatory process [has broken down] as contemplated by Maine." (47) Moreover, since the information sought by the employer related solely to ascertaining its eligibility for reimbursement of compensation under the War Hazards Compensation Act, the information was not relevant to the Defense Base Act claim. (48)

When a litigant files a Longshore form LS-18/Pre-Hearing Statement, the District Director prepares a transmittal letter transferring jurisdiction to the Office of Administrative Law Judges in Washington, D.C. (49) The completed LS-18's are sent by the District Director to the OALJ in Washington for processing. Several months may pass until the claim is docketed and assigned to a specific Administrative Law Judge. In most areas of the country formal discovery starts when the District Director transfers the claim to the OALJ. (50) Perfunctory discovery motions may be handled by the Associate Chief Judge for Longshore (Judge Johnson) before the case is assigned. (51) More substantive matters such as a motion to deem facts admitted tend to be reserved until after the case is assigned. (52) Judges disfavor receiving case assignments in which substantive rulings have been made.

OALJ Rule 18.13 allows parties to obtain discovery through depositions, interrogatories, production of documents or other evidence for inspection and other purposes; and requests for admission. The frequency or sequence of these discovery methods is not limited unless ordered by the ALJ. (53)

Some ALJ pre-hearing orders incorporate Fed. R. Civ. P. 26(d)(1). This rule dictates that a party may not seek discovery from any source before the parties have conducted a Fed. R. Civ. P. 26(f)-type discovery conference. (54) The proposed amendments to the OALJ Rules include provisions that conform to Fed. R. Civ. P. 26. (55) Under the proposed rules, discovery practice before the OALJ will be more uniform throughout the country and less dependent on the preferences of the specific ALJ to whom the case is assigned.

Under proposed OALJ Rule 18.50, a party may seek discovery at any time after a Judge issues an initial notice or order. (56) This rule permits a party to file a motion seeking earlier discovery. (57) Since cases and motions frequently are pending for several months before assigned to an ALJ, under the proposed rule the parties may be denied a meaningful opportunity to obtain early discovery.

III. SCOPE OF DISCOVERY

Unless limited by an ALJ, parties may obtain discovery regarding any nonprivileged matter that is relevant to the subject matter of the proceeding or reasonably calculated to lead to the discovery of admissible evidence. (58) The ALJ has broad discretion to direct and authorize discovery in support of the adjudicative process. (59) A discovery ruling constitutes reversible error only if it is so prejudicial as to result in the denial of due process. (60)

The proposed OALJ rule 18.51 is fashioned after Fed R. Civ. P. 26(b). (61) The amended rule limits parties to discovery of unprivileged matters "relevant to a party's claim or defense." (62) This standard reduces the scope of discoverable materials. (63)

IV. MANDATORY DISCLOSURES AND DISCOVERY PLANS

The current OALJ Rules do not provide for mandatory disclosures. Most Administrative Law Judges incorporate Fed. R. Civ. P. 26 disclosure requirements into a pre-hearing order. The proposed changes to the OALJ Rules would bring them in line with the Federal Rules of Civil Procedure. Initial Disclosure requirements set forth in pre-hearing orders typically require parties to provide (even before discovery requests are issued): (a) the names and telephone numbers of each person likely to have discoverable information along with the subject(s) of that information - that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment; (b) a copy of all documents, electronically stored information and tangible things that the disclosing party has in its possession, custody or control and may use to support its claims or defenses, unless the use would be solely for impeachment; (c) a computation of each category of damages claimed by the disclosing party; (d) any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. (64) The proposed amendments to the OALJ Rules require the same type of disclosures included in ALJ pre-hearing orders and in Fed. R. Civ. P. 26; except the proposed OALJ Rules do not require initial disclosure of any insurance agreement. (65)

V. WRITTEN INTERROGATORIES TO PARTIES

[section]18.18 allows a party to serve written interrogatories, unless opposing counsel objects within thirty days of service. The current OALJ Rules do not include a limitation on the number of interrogatories. Since written interrogatories are controlled by the OALJ Rules and not countermanded by statute, executive order or regulation, one could argue that the Fed. R. Civ. P. 33 limit on interrogatories is not controlling in a Longshore or Defense Base Act case.

20 CFR [section] 702.341 allows a party to obtain witness testimony through an interrogatory in accordance with the Federal Rules of Civil Procedure. These rules must be supplemented by local rules of practice for the federal district court for the judicial district in which the case is pending.

The proposed OALJ Rule tracks Fed. R. Civ. P. 33, which limits a party to twenty-five written interrogatories that include discrete subparts. Leave to propound additional interrogatories may be granted by the assigned Judge. (66)

The proposed amendment to Fed. R. Civ. P. 33 further limits interrogatories from twenty-five to fifteen. Unless the OALJ Rules are amended to remain in synch with the Federal Rules of Civil Procedure, inconsistencies are likely to arise.

VI. [section]18.20 ADMISSIONS

Pursuant to [section] 18.20(a) a party may serve another party a written request to verify the genuineness and authenticity of any relevant document identified by the request, or to admit the truth of any relevant fact. The current OALJ Rule contains the same limitation found in the pre-1970 version of Fed. R. Civ. P. 36. (67) The present Fed. R. Civ. P. 36 allows for a much broader use of admissions because any matters within the scope of Rule 26(b)(1) may be the subject of a request for admission. For this reason the two standards are dissimilar.

Pursuant to the pre-1970 version of Fed. R. Civ. P. Rule 36(a), requests "that were regarded as involving opinions or conclusions or a mixture of law and fact" were generally held improper. (68) Fed. R. Civ. P. Rule 36 was amended to avoid this limitation. (69) Under the current OALJ rule 18.20, Requests for admission that call for conclusions of law or requests that constitute mixed questions of law and fact are improper according to [section]18.20 and are subject to written objection pursuant to [section]18.20(b)(3).

Proposed OALJ Rule 18.63 permits a party to serve any other party a written request to admit the truth of any matters within the scope of discovery relating to facts, application of law, a party's opinion as to either or the genuineness of any described documents. This brings the OALJ rule into conformity with the scope of Fed. R. Civ. P. 36. (70)

Currently, the OALJ Rules and the Federal Rules of Civil Procedure do not place a limit on the number of requests for admission. (29 CFR 18.20; Fed. R. Civ. P. 36). However, the proposed amendments to the Federal Rules of Civil Procedure would, for the first time, place a limit on the number of requests for admission.

VII. [section]18.19 PRODUCTION OF DOCUMENTS AND OTHER EVIDENCE, ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSE; AND PHYSICAL AND MENTAL EXAMS.

A party may serve on any other party a request to:

"(a) Inspect and copy, test or sample any tangible things which are in the possession, custody or control of the party upon whom the request is served." (71)

The OALJ Rules and Federal Rules of Civil Procedure do not place a limit on the number of requests for production of documents. (72) The proposed amendments to the OALJ Rules follow Fed. R. Civ. P. 34(a)(1) and do not include a limit on requests for production of documents. (73) The proposed amendments to the Federal Rules of Civil Procedure limit a party to twenty-five requests for production of documents. (74)

Further, a party may request from another party to:

"(b) Permit entry upon land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection, measuring, photographing or testing;" or

"(c) Submit to a physical or mental examination by a physician." (75)

[section]18.19((d) provides a 30 day notice requirement for a party seeking a physical or mental examination of another party. (76) For good cause, a court may order a party whose physical or mental condition is in controversy to submit to an examination under Fed. R. Civ. P. 35. (77) Neither [section]18.19 nor the proposed amendments to the OALJ Rules require the party seeking the examination to establish good cause. [section]18.19 requires a report of the examination to be made in accordance with Fed. R. Civ. P. 35(b).78 Pursuant to Fed R. Civ. P. 35(b), the party who moved for the examination must, on request, deliver to the requester a copy of the examiner's report, together with like reports of all earlier examinations of the same condition. (79)

The proposed OALJ Rule 18.62 would reduce the thirty day notice requirement for a mental or physical examination to fourteen days. (80) The person to be examined must serve any objection within seven days. (81)

Public comments to the proposed OALJ Rules support limiting the scope of the evaluation to the mental or physical condition in controversy. (82) Comments also suggest the revised timelines give claimants inadequate time to consult their treating physicians regarding particular elements of potential objections and Judges inadequate time to evaluate objections. (83) The proposed amendments specifically require the requesting party to provide a copy of the report to the party examined, together with like reports of all earlier examinations of the same condition. (84)

VIII. SUBPOENA OF RECORDS AND WITNESSES

[section] 18.24(a) provides the Chief Administrative Law Judge or the presiding Administrative Law Judge may issue subpoenas as authorized by statute or law upon written application of a party requiring attendance of witnesses and production of documents. The OALJ web site has subpoena forms specific to the intended use of the subpoena and instructions on practice and procedure. (85) Forms include a Subpoena to Appear and Testify at a Hearing, Subpoena to Appear and Testify at a Deposition and Subpoena to Produce Documents, Information or Objects, or to Permit Inspection of Premises. [section]18.24(c) sets forth the procedure for filing a motion to quash or limit subpoena. (86)

To obtain a subpoena, a litigant may download the subpoena form off the web site, complete the applicable information, print the subpoena and send it to the appropriate Judge with a request for issuance of the subpoena. (87) The other option is to contact the presiding Judge's office in writing to request blank subpoenas. (88) The request must specify which type of subpoena is being sought. (89) At the presiding Judge's discretion, up to ten blank subpoenas may be issued. (90)

Notice must be given pursuant to [section] 18.22(c) when using a subpoena to direct appearance at a deposition. In addition, the party requesting the deposition must give reasonable notice in writing to every other party to the action. (91) Use of a subpoena on a third party to obtain production of documents or inspection of premises before the hearing requires prior notice to all parties prior to service of the subpoena on the nonparty. (92)

The proposed OALJ rule [section]18.56 does not include any procedural changes to the subpoena rule. Attorneys are not granted the authority to issue subpoenas in the current or the proposed OALJ rules. Public comments to the proposed rules support a procedure similar to the Federal Rules of Civil Procedure and most state rules which allow the clerk of court to issues subpoenas upon the request of an attorney. (93) The proposed amendment to the OALJ rules would permit subpoenas to be issued by an attorney only when authorized by the presiding judge. (94) Public comments to the proposed OALJ Rules also support providing expanded notice to all parties of the intent to serve a subpoena and protections for use of materials obtained by a subpoena. (95)

IX. DEPOSITIONS

[section]18.22 provides the deposition of any witness may be taken at any stage of the proceeding at reasonable times. Depositions may be taken by oral examination or upon written interrogatories. (96) [section]18.23 provides at the hearing, any part of or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof. Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. (97) The deposition of any expert witnesses, particularly physicians, may be used by any party for any purpose, unless the Administrative Law Judge rules that such use would be unfair or a violation of due process. (98) The deposition of a party or anyone who at the time of the taking of a deposition was an officer, director or duly authorized agent of a corporation or partnership may be used by any other party for any purpose. (99) The deposition of a witness may be used by any party if the witness died, is out of the United States, more than 100 miles from the place of the hearing, sick, or imprisoned. (100) Public comments to the proposed rules have supported expanding the use of lay witness depositions at Formal Hearings by removing the showing of unavailability requirement. (101)

The proposed OALJ rules limit the number of depositions a litigant may take to ten per side, unless conducted by agreement of the parties or with leave of Court. (102) Under the proposed amendments, depositions may be taken at any time after the OALJ issues an order or notice docketing the claim. (103) The ALJ has the option of directing the parties to agree upon a deposition schedule. (104) The proposed rule conforms to the 7-hour time limit set forth in Fed. R. Civ. P. 30(d). (105)

The proposed amendments to the Federal Rules of Civil Procedure would reduce the number of permissible depositions (absent Court approval) from ten to five and reduce the limit on the length of depositions from seven hours to four. (106)

X. CONCLUSION

Litigants before the Office of Administrative Law Judges have multiple discovery tools at their disposal. Discovery procedures are set forth in various sources including the OALJ Rules of Practice and Procedure, the Federal Rules of Civil

Procedure and case law interpreting both. An Administrative Law Judge has great discretion regarding the scope and timing of discovery. Coordination of discovery guidelines presented by the OALJ Rules and the Federal Rules of Civil Procedure will likely continue to present a challenge to attorneys practicing Longshore and Defense Base Act cases.

(1.) Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, 48 Fed. Reg. 32538-01, (July 15, 1983) (to be codified at 29 C.F.R. pt. 18).

(2.) See generally FED. R. CIV. P., References & Annotations.

(3.) See generally Rules of Practice and Procedure For Hearings Before the Office of Administrative Law Judges, 77 Fed. Reg. 72142-01, (proposed Dec. 4, 2012) (to be codified at 29 C.F.R. pt. 18).

(4.) Amendment of Filing and Service Requirements in Proceedings Before the Office of Administrative Law Judges, 59 Fed. Reg. 41874-01, (Aug. 15, 1994) (to be codified 20 C.F.R. pt. 65529, 18, 24).

(5.) Use of Settlement Judges in Longshore and Related Proceedings Before the Office of Administrative Law Judges, 64 Fed. Reg. 47087-01, (Aug. 27, 1999) (to be codified 20 C.F.R. pt. 18).

(6.) See Rules of Practice and Procedure For Hearings Before the Office of Administrative Law Judges, 77 Fed. Reg. 72142-01, (proposed Dec. 4, 2012) (to be codified at 29 C.F.R. pt. 18).

(7.) See id.

(8.) See L.V. v. Pac. Operations Offshore, LLP, 41 Ben. Rev. Bd. Serv. 795, 798(ALJ) (ALJ cited FED. R. CIV. P. 36(a) to support dismissing claim based upon Claimant's failure to timely respond to Requests for Admission).

(9.) 29 C.F.R. [section] 18.1(a) (2014).

(10.) Id.

(11.) See 29 C.F.R. [section] 18.1(b) (2014).

(12.) See Rules of Practice and Procedure For Hearings Before the Office of Administrative Law Judges, 77 Fed. Reg. 72142-01, (proposed Dec. 4, 2012) (to be codified at 29 C.F.R. pt. 18).

(13.) See, e.g, Charles Clark vs. Consol. Grain and Barge and Nationwide Agribusiness, OWCP No. 08-124941 (Claim pending before the District Director from December 17, 2004 through August 13, 2012).

(14.) These forms include the LS-1 Request for Examination and/or Treatment, LS-200 Report of Earnings, and LS-204 Attending Physician's Supplementary Report.

(15.) Maine v. Brady-Hamilton Stevedore Co., 18 Ben. Rev. Bd. Serv. (MB) 129 (DOL Ben. Rev. Bd. 1986).

(16.) Id.

(17.) Id.

(18.) Id.

(19.) Id. at 131.

(20.) Maine v. Brady-Hamilton Stevedore Co., 18 Ben. Rev. Bd. Serv. (MB) 129, 131 (DOL Ben. Rev. Bd. 1986).

(21.) Id. at 131.

(22.) Id. at 131.

(23.) Id. at 132.

(24.) Id.

(25.) Maine v. Brady-Hamilton Stevedore Co., 18 Ben. Rev. Bd. Serv. (MB) 129, 134 (DOL Ben. Rev. Bd. 1986).

(26.) Id. at 132-33; see Armani v. Global Linguist Solutions, BRB No. 12-0196, 2012 WL 6764253, at *1, 2 (DOL Ben. Rev. Bd. Dec. 19, 2012); 29 C.F.R. [section] 18.24 (2014).

(27.) See Maine, 18 Ben. Rev. Bd. Serv. (MB) at 133 n.6; Armani, 2012 WL 6764253, at *3.

(28.) See Maine, 18 Ben. Rev. Bd. Serv. (MB) at 133 n.6.

(29.) Id. at 133; Armani, 2012 WL 6764253, at *3.

(30.) Butler v. Ingalls Shipbuilding, Inc., 28 Ben. Rev. Bd. Serv. (MB) 114 (DOL Ben. Rev. Bd. 1994).

(31.) Subpoenas: Rules and Procedures, United States Department of Labor, Office of Administrative Law Judges, http://www.oalj.dol.gov/SUBPOENAS.HTM.

(32.) Division of Longshore and Harbor Workers' Compensation Longshore Procedure Manual, United States Department of Labor, Office of Workers' Compensation Programs, http://www.dol.gov/owcp/dlhwc/lspm/lspm4-400.htm.

(33.) See Armani v. Global Linguist Solutions, BRB No. 12-0196, 2012 WL 6764253, at *1 (DOL Ben. Rev. Bd. Dec. 19, 2012).

(34.) Id.

(35.) Id.

(36.) Id.

(37.) Id.

(38.) Armani v. Global Linguist Solutions, BRB No. 12-0196, 2012 WL 6764253, at *1, 2 (DOL Ben. Rev. Bd. Dec. 19, 2012).

(39.) Id. at *3; Maine v. Brady-Hamilton Stevedore Co., 18 Ben. Rev. Bd. Serv. (MB) 129, 132 (DOL Ben. Rev. Bd. 1986).

(40.) Armani, 2012 WL 6764253, at *1.

(41.) See id. at *5.

(42.) See id.

(43.) Armani v. Global Linguist Solutions, BRB No. 12-0196, 2012 WL 6764253, at *1, 3 (DOL Ben. Rev. Bd. Dec. 19, 2012); Maine, 18 Ben. Rev. Bd. Serv. (MB) at 134.

(44.) Armani, 2012 WL 6764253, at *3; see Maine, 18 Ben. Rev. Bd. Serv. (MB) at 132.

(45.) See Armani, 2012 WL 6764253, at *5.

(46.) Id. at *3.

(47.) Id.

(48.) Armani v. Global Linguist Solutions, No. 12-0196, 2012 WL 6764253, at *1, *5 (DOL Ben. Rev. Bd. Dec. 19, 2012).

(49.) 20 C.F.R. [section] 702.317(c) (2014).

(50.) 20 C.F.R. [section] 702.311 (2014); 29 C.F.R. [section][section] 18.13, 18.14 (2014).

(51.) See, e.g., Armani v. Global Linguist Solutions, No. 12-0196, 2012 WL 6764253, at *1 (DOL Ben. Rev. Bd. Dec. 19, 2012).

(52.) See, e.g., In the Matter of: L.V. As Widow of J.V. (Deceased), 41 Ben. Rev. Bd. Serv. (MB) 795 (DOL Ben. Rev. Bd. Aug. 15, 2007).

(53.) 29 C.F.R. [section] 18.13(2014).

(54.) FED. R. CIV. P. 26(d) 1.

(55.) Rules of Practice and Procedure for Hearings Before the Office of Administrative Law Judges, 77 Fed. Reg. 72142-01 (proposed Dec. 7, 2012) (to be codified at 29. C.F.R. pt. 18).

(56.) Id.

(57.) Id.

(58.) 29 C.F.R. [section] 18.14 (2014); Newton v. P&O Ports La., Inc., 38 Ben. Rev. Bd. Serv. (MB) 23, 24 (DOL Ben. Rev. Bd. Mar. 11, 2004).

(59.) 33 U.S.C. [section] 927(a) (2006); 5 U.S.C. [section] 556(c) (2006); see generally 20 C.F.R. [section][section] 702.338-341 (2014); 29 C.F.R. [section] 18.14 et seq. (2014).

(60.) Martiniano v. Gotten Marine Co., 23 Ben. Rev. Bd. Serv. (MB) 363, 366 (DOL Ben. Rev. Bd. Apr. 30, 1990).

(61.) Rules of Practice and Procedure for Hearings Before the Office of Administrative Law Judges, 77 Fed. Reg. 72142-01, at *72160 (proposed Dec. 7, 2012) (to be codified at 29. C.F.R. pt. 18).

(62.) 2000 Amendments to FED. R. CIV. P. 26(b)(1) Advisory Committee's Notes.

(63.) Rules of Practice and Procedure for Hearings Before the Office of Administrative Law Judges, 77 Fed. Reg. 72142-01, at *72144 (proposed Dec. 7, 2012) (to be codified at 29. C.F.R. pt. 18).

(64.) FED. R. CIV. P. 26(a) 1.

(65.) See Rules of Practice and Procedure for Hearings Before the Office of Administrative Law Judges, 77 Fed. Reg. 72142-01 (proposed Dec. 7, 2012) (to be codified at 29. C.F.R. pt. 18).

(66.) Rules of Practice and Procedure for Hearings Before the Office of Administrative Law Judges, 77 Fed. Reg. 72142-01 (proposed Dec. 7, 2012) (to be codified at 29. C.F.R. pt. 18); FED. R.CIV. P. 33.

(67.) See 8B Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure [section] 2255, at 332 n.1 (3d ed. 2010).

(68.) See Id. at 333.

(69.) 1970 Amendments to FED. R. CIV. P. 36 Advisory Committee's Notes.

(70.) Rules of Practice and Procedure for Hearings Before the Office of Administrative Law Judges, 77 Fed. Reg. 72142-01, at *72167 (proposed Dec. 7, 2012) (to be codified at 29. C.F.R. pt. 18); FED. R. CIV. P. 36.

(71.) 29 C.F.R. pt. 18.19(a)(1)

(72.) 29 C.F.R. pt 18.19; FED.R.CIV.P.34

(73.) Rules of Practice and Procedure for Hearings Before the Office of Administrative Law Judges, 77 Fed. Reg. 72142-01, at *72166 (proposed Dec. 7, 2012) (to be codified at 29. C.F.R. pt. 18)

(74.) Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy and Civil Procedure, proposed amendment to Federal Rule of Civil Procedure 34, (August 15, 2013) can be found at: http://www.uscourts.gov/uscourts/rules/preliminary-draft-proposedamendments.pdf.

(75.) 29 C.F.R. pt. 18.19 (a)(2), 29 C.F.R. pt. 18.19 (a) (3)

(76.) 29 C.F.R. pt. 18.19(d)

(77.) FED.R.CIV.P.35

(78.) 29 C.F.R. pt. 18.19 (c)(4)

(79.) FED. R. CIV. P. 35(b).

(80.) Rules of Practice and Procedure for Hearings Before the Office of Administrative Law Judges, 77 Fed. Reg. 72142-01, at *72142, *72166 (proposed Dec. 7, 2012) (to be codified at 29. C.F.R. pt. 18).

(81.) Rules of Practice and Procedure for Hearings Before the Office of Administrative Law Judges, 77 Fed. Reg. 72142-01, at *72166 (proposed Dec. 7, 2012) (to be codified at 29. C.F.R. pt. 18).

(82.) Amie Peters, Comment from Workers' Injury Law & Advocacy Group (Feb. 2, 2013), http://www.regulations.gov/#!documentDetail;D=DOL-2012-0007-0006.

(83.) Id.

(84.) Rules of Practice and Procedure for Hearings Before the Office of Administrative Law Judges, 77 Fed. Reg. 72142-01, at *72142, *72166 (proposed Dec. 7, 2012) (to be codified at 29. C.F.R. pt. 18).

(85.) Office of Admin. Law Judges, Subpoenas: Rules and Procedures, U.S. DEP'T of LABOR, (Feb. 24. 2014) http://www.oalj.dol.gov/SUBPOENAS.HTM.

(86.) 29 C.F.R.pt. 18.24(c)

(87.) Office of Admin. Law Judges, Subpoenas: Rules and Procedures, U.S. DEP'T of LABOR, (Feb. 24. 2014) http://www.oalj.dol.gov/SUBPOENAS.HTM.

(88.) Id.

(89.) Id.

(90.) Id.

(91.) FED. R. CIV. P. 30(b)(1), as made applicable by 20 C.F.R. [section]18.1(a).

(92.) FED. R. CIV. P. 45(b)(1), as made applicable by 20 C.F.R. [section]18.1(a); Butler v . Biocore Med. Techs., Inc., 348 F.3d 1163, 1173 (10th Cir. 2003).

(93.) Amie Peters, Comment from Workers' Injury Law & Advocacy Group (Feb. 2, 2013), http://www.regulations.gov/#!documentDetail;D-DOL-2012-0007-0006.

(94.) Rules of Practice and Procedure for Hearings Before the Office of Administrative Law Judges, 77 Fed. Reg. 72142-01 (proposed Dec. 7, 2012) (to be codified at 29. C.F.R. pt. 18).

(95.) Amie Peters, Comment from Workers' Injury Law & Advocacy Group (Feb. 2, 2013), http://www.regulations.gov/#!documentDetail;D=DOL-2012-0007-0006.

(96.) 29 C.F.R. [section] 18.22 (a) (2014).

(97.) 29 C.F.R. [section] 18.23(a)(1) (2014).

(98.) 29 C.F.R. [section] 18.23 (a)(2) (2014).

(99.) 29 C.F.R. [section] 18.23(a)(3) (2014).

(100.) 29 C.F.R. [section] 18.23(a)(4) (2014).

(101.) Amie Peters, Comment from Workers' Injury Law & Advocacy Group (Feb. 2, 2013), http://www.regulations.gov/#!documentDetail;D=DC)L-2012-0007-0006.

(102.) Rules of Practice and Procedure for Hearings Before the Office of Administrative Law Judges, 77 Fed. Reg. 72142-01, at *72188 (proposed Dec. 7, 2012) (to be codified at 29. C.F.R. pt. 18).

(103.) Id. at *72181.

(104.) Id.

(105.) Id. at *72188.

(106.) Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy and Civil Procedure, proposed amendment to Federal Rule of Civil Procedure 30, (August 15, 2013) can be found at: http://www.uscourts.gov/uscourts/rules/preliminary-draft-proposed-amendments.pdf.

By Steven C. Schletker, Attorney at Law 50 E. RiverCenter Boulevard Suite 220 Covington, Kentucky 41011. (859) 491-3999
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Date:Mar 22, 2014
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