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DISCOVERY-THE KEY TO UNLOCKING THE "MYSTERY" BEHIND AN ADMINISTRATIVE HEARING

By Sondra J. Vanella, Administrative Law Judge
Vol. 21, October 2001

Discovery is a pre-hearing device that can be used by each party to obtain facts and information about the case from the opposing party, in order to prepare for an administrative hearing. There are no formal rules governing the discovery process in an administrative hearing. However, discovery should be calculated to lead to reliable and probative information. In some cases, parties may have another related matter pending in court. The administrative forum should not be viewed as an opportunity to obtain information solely for use in another court proceeding. Discovery must be relevant to the issues that will be addressed at the hearing.

Generally, discovery is limited in administrative proceedings. However, there are several methods accessible to both represented and unrepresented parties, which can facilitate the gathering of relevant information. Perhaps the easiest and most often overlooked tool is a review of the case file. Parties are encouraged to examine the case file forwarded to the Office of Administrative Hearings by the referring agency, prior to the hearing. This enables the parties to become familiar with the documents that the agency (assuming the agency is a party) or other party may use during the hearing, and affords the opportunity to gather whatever documentation the party feels is necessary in order to present the case to the Administrative Law Judge (“ALJ”). Parties may obtain copies of the case file at their own expense.

The most common form of discovery is the issuance of subpoenas to compel the attendance of witnesses and the production of documents. This may be requested by either or both parties without notifying the opposition of such request. Subpoenas for the production of documents may be issued by the ALJ if the party seeking documents demonstrates that they are relevant to the issues in dispute. The ALJ may require a brief statement supporting the necessity of a particular witness to appear, or the relevancy of the documents being sought. Documents may be subpoenaed from individuals, businesses, and governmental agencies.

The deposition is a limited discovery technique that can be exercised when a witness is unavailable to attend the hearing. Should a witness be unavailable to testify at the hearing, either party may petition the assigned ALJ to permit a deposition to be taken to be used as evidence at the hearing. This is because the person being deposed is under oath and subject to cross examination during the deposition.

The pre-hearing conference is not a discovery tool per se, but parties seeking assistance with discovery, or who seek clarification of issues, may request a pre-hearing conference. On occasion, an ALJ may order a pre-hearing conference without a request from either party. The pre-hearing conference may be used to clarify or limit procedural, legal, and factual issues, thereby alleviating a degree of uncertainty about the proceeding. The ALJ may order the parties to exchange documents and/or lists of witnesses and exhibits intended to be used during the hearing. It also affords the parties an opportunity to discuss settlement.

Discovery, if utilized appropriately, promotes a meaningful and efficient hearing, with both parties prepared to present and address relevant evidence and legal arguments.

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