SECTION 165:5-11-1. Deposition and discovery

(a)   Depositions.

(1)   Deposition of a witness for use at a hearing may be taken only when ordered upon motion by the Commission or of a person. The order may direct that the deposition of a witness be taken inside or outside the State of Oklahoma.

(2)   The order shall state the time and place the deposition shall be taken, and the person taking the deposition shall serve a copy of the order by regular mail on each party of record at least five (5) days prior to the date scheduled for taking the deposition.

(3)   The manner of taking depositions shall otherwise be governed by the laws relating to taking of depositions for use in the District Courts of Oklahoma. Attendance of a witness for taking of his deposition shall be governed by OAC 165:5-11-3, except that the attendance of a witness for deposition shall be required only in the county of his residence.

(4)   A deposition may be offered in evidence at the hearing by any person.

(b)   Production of documents.

(1)   Upon motion, the Commission may make an order requiring a person to produce designated documents or tangible objects for inspection by respondents or parties of record to the cause, or for copying at the expense of the applicant, or to be offered into evidence. The order shall direct production thereof at the hearing or at a prehearing conference, and production shall be at the principal office of the Commission unless some other place is stated in the order. An order hereunder may be directed to a person not yet a party of record, conditioned that if such person appears at the hearing, the order thereupon will be complied with.

(2)   The person applying therefore shall serve a copy of the order by regular mail on each party of record at least five (5) days prior to the date upon which production is required. In proceedings on the PUD docket, service of an order shall be made at least ten (10) business days prior to the date upon which production is required unless otherwise agreed by the applicant, respondent and intervenors.

(3)   An order pursuant to this subsection may require production of any document not privileged which constitutes or contains evidence relevant to the subject matter of the cause, or may reasonably lead to such evidence. Business records shall not be deemed privileged as such; but confidential business records and information will be protected from disclosure except where directly relevant to the issues in the cause.

(4)   The order shall identify the documents or object to be produced individually or by categories, with sufficient particularity to permit easy identification thereof by the person ordered to make production.

(5)   An exact photographic copy of a document may be substituted for the original, at the expense of the person producing the instrument.

(c)   Interrogatories.

(1)   Upon motion of the Commission or of a person, an order may be entered requiring a person to answer in writing under oath certain written interrogatories attached to the order. The answers shall be submitted at the hearing or at a prehearing conference.

(2)   The person applying for the order shall serve a copy thereof, with interrogatories attached, by regular mail, upon each respondent at least ten (10) days prior to the date upon which answer is required. In proceedings on the PUD docket, service of an order shall be made at least ten (10) business days prior to the date upon which answer is required unless otherwise agreed by the applicant, respondent and intervenors.

(d)   Protective orders.

(1)   The Commission, upon motion, may make such orders relating to discovery as may be necessary or appropriate for the protection of and to prevent hardship to and excessive burden upon a person. Such orders may, among other subjects, limit the scope of depositions, prohibit questions or subjects of inquiry, require or excuse answers to questions on deposition, limit or excuse, in whole or in part, production of documents or answers to interrogatories, and shorten or extend the time within which any act shall be performed.

(2)   The Commission may make appropriate orders, including dismissal of a proceeding or denial of relief, as may be warranted for failure or refusal to comply with an order issued pursuant to this subsection.

(e)   Discovery in proceedings on the PUD docket.

(1)   Except as otherwise directed by the Commission, in proceedings on the PUD docket, the parties of record may also obtain discovery by document request, data request or interrogatory without filing a motion for an order of the Commission. When discovery is sought without a prior order, the provisions of (b) (3), (4) and (5) of this Section shall apply, and the references to orders therein shall be deemed to mean requests for discovery.

(2)   In a proceeding filed pursuant to 17 O.S. § 152(B), 17 O.S. § 137, or 18 O.S. § 438.31 et seq., discovery by document request, data request or interrogatory shall be governed by the provisions of OAC 165:5-7-61. In a proceeding requesting relief pursuant to the Oklahoma Telecommunications Act of 1997, discovery by document request, data request or interrogatory shall be in accordance with (e)(3) below.

(3)   In a proceeding requesting relief pursuant to the Oklahoma Telecommunications Act of 1997, discovery by document request, data request or interrogatory by the OUSF Administrator shall be answered within ten (10) business days, unless an objection is filed within five (5) business days and a ruling is made establishing a different response time or the applicant and the Administrator agree to a different response time. The filing of an objection shall toll the time to respond pending the ruling on the objection.

(4)   In all other proceedings on the PUD docket, responses to any document request, data request or interrogatory shall be due twenty (20) calendar days after receipt of the same, unless:

(A)   An objection is filed within ten (10) business days and a ruling is made establishing a different response time. The attorney filing such objection must attest that the objection is not frivolous or for the purpose of delay. The objecting party is not required to respond until an objection is ruled upon. The ruling shall state the time in which to respond; or,

(B)   The party requesting discovery and the producing/responding party agree in writing to a different response time.

(5)   The Commission may allow a shorter or longer time for response for good cause shown, but in no event may the Commission order a response to be served in less than ten (10) business days, except as otherwise agreed by the person ordered to respond.

(6)   Any document request, data request, or interrogatory received after 3:00 p.m. shall be deemed received the next regular business day.

(7)   A copy of all data requests and/or answers to data requests shall be submitted to all counsel of record by regular mail, facsimile, electronic mail or in person at the same time they are issued or answered.

(8)   Objections to a document request, data request, interrogatory, or the time in which to respond may be presented to the Administrative Law Judge unless otherwise ordered by the Commission en banc. Any ruling by the Administrative Law Judge on an objection may be orally referred to the Commission en banc in accordance with the provisions of OAC 165:5-13-5(a)(1).

(9)   Any objection(s) relating to a discovery request or the time in which to respond shall be set on the next PUD motion docket unless the Administrative Law Judgeand the requesting and responding parties of record agree to a different date and time.

(10)   The responding party shall promptly supplement any prior discovery response or deposition answer by disclosing to the requesting party any known information the existence of which materially affects the accuracy or completeness of the response previously provided. The duty of disclosure extends beyond any discovery deadline unless otherwise ordered.

(f)   This Section shall not be interpreted to limit the Commission's authority pursuant to Article IX, Sections 18, 19, and 28 of the Oklahoma Constitution.

(g)   Pursuant to 17 O.S. § 330, discovery for proceedings on the Petroleum Storage Tank docket shall be conducted under the provisions of the Oklahoma Discovery Code, 12 O.S. §§ 3224 through 3237. See also OAC 165:5-21-7.

[Source: Amended at 12 Ok Reg 2015, eff 7-1-95; Amended at 16 Ok Reg 829, eff 1-25-99 (emergency); Amended at 16 Ok Reg 2807, eff 7-15-99; Amended at 27 Ok Reg 2098, eff 7-11-10; Amended at 31 Ok Reg 959, eff 9-12-14]