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Discovery Process in Agency Adjudications

Administrative agencies enjoy considerable discretion in determining the extent of discovery to which a party in an administrative proceeding is entitled.  An administrative agency may also reject a discovery request when material facts are not disputed[i].

The purpose of discovery is to facilitate adequate preparation of the party’s case and courts give utmost importance to disclosure of charges and adverse statements with identification of sources, while reviewing administrative proceedings.  This approach guarantees fairness, which is of paramount important in administrative proceedings[ii]. The right of a party to avail a particular mode of discovery in administrative proceedings is same as that of judicial proceedings and the agency does not formulate special discovery rules for individual cases[iii]. Administrative law judges are entitled to deviate from conventional modes of discovery only in situations demanding fair and impartial hearings or to avoid delay in disposition of proceedings[iv].

For instance, in Feliciano v. Chater, 901 F. Supp. 50 (D.P.R. 1995), the administrative law judge denied plaintiff’s subpoena request to medical consultants on her case, because there was no rule entitling all disability claimants to subpoena for purpose of cross-examining non-testifying experts in disability determination hearings before the administrative law judge.  However, the administrative law judge has discretion to subpoena such witnesses under 5 USCS § 556(d).  The court held that plaintiff was not entitled to relief since there was no evidence the administrative law judge had abused that discretion.
Law stipulates that all parties to administrative proceedings should be permitted access to “whatever materials may be available for uncovering of relevant probative evidence for use at hearing” including production of internal agency records[v].

The Government has a privilege to withhold documents and testimony in cases in which it is a party.  Thus, the government has the option of holding back confidential material and can prevent the material to be subject of direct and cross-examination. Courts will not generally force government to reveal information it seeks to keep confidential.
The party has no absolute right to discovery and the production of evidence is subject to the discretion of the hearing examiner, who may deny request for production which is merely cumulative, irrelevant or immaterial to issues presented[vi] Further, there is no unlimited privilege under 5 USCS § 556 to examine each and every file and to subpoena every witness of the party’s choice.  Thus, a government’s expert witness is examinable by adversary prior to hearing only upon showing of exceptional circumstances and that it was the only means of obtaining discovery of the matter in dispute.
The scope of discovery in administrative hearings is governed by statute as well as the agency’s discretion.  Due process is yet another determinant factor regarding scope of discovery[vii]. All the requirements under the Federal Administrative Procedure Act relating to evidence or procedure apply equally to agencies and persons[viii]. Hence a discovery request made by agency cannot be denied on the ground that records in issue contain evidence that the agency should have acquired during pre-complaint investigation.

The hearing officer has discretion to sanction a party disobeying legitimate discovery requests.  Willful non compliance of discovery requests, bad faith, fault, or persistent dilatory tactics frustrating the adjudicative process are some of the grounds for imposing sanctions [ix].

[i] Pacific Gas & Electric Co. v. Federal Energy Regulatory Com., 746 F.2d 1383 (9th Cir. 1984)

[ii] Grimm v. Brown, 291 F. Supp. 1011 (N.D. Cal. 1968)

[iii] In re Exxon Corp. (1975, FTC) 85 FTC 404

[iv] In re Exxon Corp. (1977, FTC) 90 FTC 450

[v] In re Coca-Cola Co. (1975, FTC) 85 FTC 398.

[vi] Fried v. United States, 212 F. Supp. 886 (S.D.N.Y. 1962)

[vii] Pacific Gas & Electric Co.,46 F.2d 1383

[viii] 5 U.S.C.A. § 559

[ix] Joseph v. Salt Lake City Civil Service Com’n, 2002 UT App 254, (Utah Ct. App. 2002)

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