29 CFR Part 18 — Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges

PART 18—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES Authority: 5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 571 note; E.O. 12778; 57 FR 7292. Source: 48 FR 32538, July 15, 1983, unless otherwise noted. Subpart A—General Source: 80 FR 28785, May 19, 2015, unless otherwise noted. General Provisions § 18.10 Scope and purpose. (a) In general. (b) Type of proceeding. (c) Waiver, modification, and suspension. § 18.11 Definitions. For purposes of these rules, these definitions supplement the definitions in the Administrative Procedure Act, 5 U.S.C. 551. Calendar call Chief Judge Docket clerk docket clerk Hearing Judge Order Proceeding Representative § 18.12 Proceedings before administrative law judge. (a) Designation. (b) Authority. (1) Regulate the course of proceedings in accordance with applicable statute, regulation or executive order; (2) Administer oaths and affirmations and examine witnesses; (3) Compel the production of documents and appearance of witnesses within a party's control; (4) Issue subpoenas authorized by law; (5) Rule on offers of proof and receive relevant evidence; (6) Dispose of procedural requests and similar matters; (7) Terminate proceedings through dismissal or remand when not inconsistent with statute, regulation, or executive order; (8) Issue decisions and orders; (9) Exercise powers vested in the Secretary of Labor that relate to proceedings before the Office of Administrative Law Judges; and (10) Where applicable take any appropriate action authorized by the FRCP. § 18.13 Settlement judge procedure. (a) How initiated. (b) Appointment. (c) Duration of settlement proceeding. (d) Powers of the settlement judge. (e) Stay of proceedings before presiding judge. (f) Settlement conferences. (g) Confidentiality. (h) Report. (i) Non-reviewable decisions. § 18.14 Ex parte communication. The parties, their representatives, or other interested persons must not engage in ex parte communications on the merits of a case with the judge. § 18.15 Substitution of administrative law judge. (a) Substitution during hearing. (b) Substitution following hearing. § 18.16 Disqualification. (a) Disqualification on judge's initiative. (b) Request for disqualification. § 18.17 Legal assistance. The Office of Administrative Law Judges does not appoint representatives, refer parties to representatives, or provide legal assistance. Parties and Representatives § 18.20 Parties to a proceeding. A party seeking original relief or action is designated a complainant, claimant or plaintiff, as appropriate. A party against whom relief or other action is sought is designated a respondent or defendant, as appropriate. When participating in a proceeding, the applicable Department of Labor's agency is a party or party-in-interest. § 18.21 Party appearance and participation. (a) In general. (b) Waiver of participation. (c) Failure to appear. § 18.22 Representatives. (a) Notice of appearance. (b) Categories of representation; admission standards Attorney representative. (i) Attorney in good standing. (A) The attorney is a member of a bar in good standing of the highest court of a State, Commonwealth, or Territory of the United States, or the District of Columbia where the attorney has been licensed to practice law; and (B) No disciplinary proceeding is pending against the attorney in any jurisdiction where the attorney is licensed to practice law. (ii) Attorney not in good standing. (iii) Disclosure of discipline. (2) Non-attorney representative. (c) Duties. (d) Prohibited actions. (1) Threaten, coerce, intimidate, deceive or knowingly mislead a party, representative, witness, potential witness, judge, or anyone participating in the proceeding regarding any matter related to the proceeding; (2) Knowingly make or present false or misleading statements, assertions or representations about a material fact or law related to the proceeding; (3) Unreasonably delay, or cause to be delayed without good cause, any proceeding; or (4) Engage in any other action or behavior prejudicial to the fair and orderly conduct of the proceeding. (e) Withdrawal of appearance. § 18.23 Disqualification of representatives. (a) Disqualification Grounds for disqualification. (i) Suspension of a license to practice law or disbarment from the practice of law by any court or agency of the United States, highest court of a State, Commonwealth, or Territory of the United States, or the District of Columbia; (ii) Disbarment from the practice of law on consent or resignation from the bar of a court or agency while an investigation into an allegation of misconduct is pending; or (iii) Committing an act, omission, or contumacious conduct that violates these rules, an applicable statute, an applicable regulation, or the judge's order(s). (2) Disqualification procedure. (b) Notification of disqualification action. (c) Application for reinstatement. § 18.24 Briefs from amicus curiae. The United States or an officer or agency thereof, or a State, Territory, Commonwealth, or the District of Columbia may file an amicus brief without the consent of the parties or leave of the judge. Any other amicus curiae may file a brief only by leave of the judge, upon the judge's request, or if the brief states that all parties have consented to its filing. A request for leave to file an amicus brief must be made by written motion that states the interest of the movant in the proceeding. The deadline for submission of an amicus brief will be set by the presiding judge. Service, Format, and Timing of Filings and Other Papers § 18.30 Service and filing. (a) Service on parties In general. (2) Service: how made Serving a party's representative. (ii) Service in general. (A) Handing it to the person; (B) Leaving it; ( 1 ( 2 (C) Mailing it to the person's last known address—in which event service is complete upon mailing; (D) Leaving it with the docket clerk if the person has no known address; (E) Sending it by electronic means if the person consented in writing—in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served; or (F) Delivering it by any other means that the person consented to in writing—in which event service is complete when the person making service delivers it to the agency designated to make delivery. (3) Certificate of service. (i) The title of the document; (ii) The name and address of each person or representative being served; (iii) The name of the party filing the paper and the party's representative, if any; (iv) The date of service; and (v) How the paper was served. (b) Filing with Office of Administrative Law Judges Required filings. (i) Notices of deposition, (ii) Depositions, (iii) Interrogatories, (iv) Requests for documents or tangible things or to permit entry onto land; (v) Requests for admission, and (vi) The notice (and the related copy of the subpoena) that must be served on the parties under rule 18.56(b)(1) before a “documents only” subpoena may be served on the person commended to produce the material. (2) Filing: when made—in general. (3) Filing how made. (i) Filing by facsimile When permitted. (B) Cover sheet. (C) Retention of the original document. (ii) Any party filing a facsimile of a document must maintain the original document and transmission record until the case is final. A transmission record is a paper printed by the transmitting facsimile machine that states the telephone number of the receiving machine, the number of pages sent, the transmission time and an indication that no error in transmission occurred. (iii) Upon a party's request or judge's order, the filing party must provide for review the original transmitted document from which the facsimile was produced. (4) Electronic filing, signing, or verification. § 18.31 Privacy protection for filings and exhibits. (a) Redacted filings and exhibits. (1) The last four digits of the social-security number and taxpayer-identification number; (2) The year of the individual's birth; (3) The minor's initials; and (4) The last four digits of the financial-account number. (b) Exemptions from the redaction requirement. (1) The record of an administrative or agency proceeding; (2) The official record of a state-court proceeding; (3) The record of a court or tribunal, if that record was not subject to the redaction requirement when originally filed; and (4) A filing or exhibit covered by paragraph (c) of this section. (c) Option for filing a reference list. (d) Waiver of protection of identifiers. (e) Protection of material. § 18.32 Computing and extending time. (a) Computing time. (1) When the period is stated in days or a longer unit of time: (i) Exclude the day of the event that triggers the period; (ii) Count every day, including intermediate Saturdays, Sundays, and legal holidays; and (iii) Include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday. (2) “Last day” defined. (3) “Next day” defined. (4) “Legal holiday” defined. (b) Extending time. (1) With or without motion or notice if the judge acts, or if a request is made, before the original time or its extension expires; or (2) On motion made after the time has expired if the party failed to act because of excusable neglect. (c) Additional time after certain kinds of service. [80 FR 28785, May 19, 2015, as amended at 80 FR 37539, July 1, 2015] § 18.33 Motions and other papers. (a) In general. (1) Be in writing, unless made during a hearing; (2) State with particularity the grounds for seeking the order; (3) State the relief sought; (4) Unless the relief sought has been agreed to by all parties, be accompanied by affidavits, declarations, or other evidence; and (5) If required by paragraph (c)(4) of this section, include a memorandum of points and authority supporting the movant's position. (b) Form. (c) Written motion before hearing. (i) When the motion may be heard ex parte; (ii) When these rules or an appropriate statute, regulation, or executive order set a different time; or (iii) When an order sets a different time. (2) A written motion served within 21 days before the hearing must state why the motion was not made earlier. (3) A written motion before hearing must state that counsel conferred, or attempted to confer, with opposing counsel in a good faith effort to resolve the motion's subject matter, and whether the motion is opposed or unopposed. A statement of consultation is not required with pro se litigants or with the following motions: (i) To dismiss; (ii) For summary decision; and (iii) Any motion filed as “joint,” “agreed,” or “unopposed.” (4) Unless the motion is unopposed, the supporting papers must include affidavits, declarations or other proof to establish the factual basis for the relief. For a dispositive motion and a motion relating to discovery, a memorandum of points and authority must also be submitted. A judge may direct the parties file additional documents in support of any motion. (d) Opposition or other response to a motion filed prior to hearing. (e) Motions made at hearing. (f) Renewed or repeated motions. (1) The earlier motion(s), (2) When the respective motion was made, (3) The judge to whom the motion was made, (4) The earlier ruling(s), and (5) The basis for the current motion. (g) Motion hearing. [80 FR 28785, May 19, 2015, as amended at 80 FR 37539, July 1, 2015] § 18.34 Format of papers filed. Every paper filed must be printed in black ink on 8.5 × 11-inch opaque white paper and begin with a caption that includes: (a) The parties' names, (b) A title that describes the paper's purpose, and (c) The docket number assigned by the Office of Administrative Law Judges. If the Office has not assigned a docket number, the paper must bear the case number assigned by the Department of Labor agency where the matter originated. If the case number is an individual's Social Security number then only the last four digits may be used. See § 18.35 Signing motions and other papers; representations to the judge; sanctions. (a) Date and signature. (b) Representations to the judge. (1) It is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of the proceedings; (2) The claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) The factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. (c) Sanctions In general. (2) Motion for sanctions. (3) On the judge's initiative. (4) Nature of a sanction. (5) Requirements for an order. (d) Inapplicability to discovery. § 18.36 Amendments after referral to the Office of Administrative Law Judges. The judge may allow parties to amend and supplement their filings. Prehearing Procedure § 18.40 Notice of hearing. (a) In general. (b) Date, time, and place. § 18.41 Continuances and changes in place of hearing. (a) By the judge. (b) By a party's motion. (1) Continuances. (2) Change in place of hearing. § 18.42 Expedited proceedings. A party may move to expedite the proceeding. The motion must demonstrate the specific harm that would result if the proceeding is not expedited. If the motion is granted, the formal hearing ordinarily will not be scheduled with less than 7 days notice to the parties, unless all parties consent to an earlier hearing. § 18.43 Consolidation; separate hearings. (a) Consolidation. (1) Join for hearing any or all matters at issue in the proceedings; (2) Consolidate the proceedings; or (3) Issue any other orders to avoid unnecessary cost or delay. (b) Separate hearings. § 18.44 Prehearing conference. (a) In general. (1) Expediting disposition of the proceeding; (2) Establishing early and continuing control so that the case will not be protracted because of lack of management; (3) Discouraging wasteful prehearing activities; (4) Improving the quality of the hearing through more thorough preparation; and (5) Facilitating settlement. (b) Scheduling. (c) Participation. (d) Matters for consideration. (1) Formulating and simplifying the issues, and eliminating frivolous claims or defenses; (2) Amending the papers that had framed the issues before the matter was referred for hearing; (3) Obtaining admissions and stipulations about facts and documents to avoid unnecessary proof, and ruling in advance on the admissibility of evidence; (4) Avoiding unnecessary proof and cumulative evidence, and limiting the number of expert or other witnesses; (5) Determining the appropriateness and timing of dispositive motions under §§ 18.70 and 18.72; (6) Controlling and scheduling discovery, including orders affecting disclosures and discovery under §§ 18.50 through 18.65; (7) Identifying witnesses and documents, scheduling the filing and exchange of any exhibits and prehearing submissions, and setting dates for further conferences and for the hearing; (8) Referring matters to a special master; (9) Settling the case and using special procedures to assist in resolving the dispute such as the settlement judge procedure under § 18.13, private mediation, and other means authorized by statute or regulation; (10) Determining the form and content of prehearing orders; (11) Disposing of pending motions; (12) Adopting special procedures for managing potentially difficult or protracted proceedings that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems; (13) Consolidating or ordering separate hearings under § 18.43; (14) Ordering the presentation of evidence early in the proceeding on a manageable issue that might, on the evidence, be the basis for disposing of the proceeding; (15) Establishing a reasonable limit on the time allowed to present evidence; and (16) Facilitating in other ways the just, speedy, and inexpensive disposition of the proceeding. (e) Reporting. Disclosure and Discovery § 18.50 General provisions governing disclosure and discovery. (a) Timing and sequence of discovery Timing. (i) The time to respond to any pending discovery requests is extended until the time agreed in the discovery plan, or that the judge sets in resolving disputes about the discovery plan, and (ii) No party may seek additional discovery from any source before the parties have conferred as required by paragraph (b) of this section, except by stipulation. (2) Sequence. (i) Methods of discovery may be used in any sequence; and (ii) Discovery by one party does not require any other party to delay its discovery. (b) Conference of the parties; planning for discovery In general. (2) Conference content; parties' responsibilities. (3) Discovery plan. (i) What changes should be made in the timing, form, or requirement for disclosures under paragraph (c) of this section, including a statement of when initial disclosures were made or will be made; (ii) The subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues; (iii) Any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced; (iv) Any issues about claims of privilege or of protection as hearing-preparation materials, including—if the parties agree on a procedure to assert these claims after production—whether to ask the judge to include their agreement in an order; (v) What changes should be made in the limitations on discovery imposed under these rules and what other limitations should be imposed; and (vi) Any other orders that the judge should issue under § 18.52 or § 18.44. (c) Required disclosures Initial disclosure In general. (A) The name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects 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—or a description by category and location—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; and (C) A computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under § 18.61 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered. (ii) Proceedings exempt from initial disclosure. (A) A proceeding under 29 CFR part 20 for review of an agency determination regarding the existence or amount of a debt, or the repayment schedule proposed by the agency; (B) A proceeding before the Board of Alien Labor Certification Appeals under the Immigration and Nationality Act; and (C) A proceeding under the regulations governing certification of H-2 non-immigrant temporary agricultural employment at 20 CFR part 655, subpart B; (D) A rulemaking proceeding under the Occupational Safety and Health Act of 1970; and (E) A proceeding for civil penalty assessments under Employee Retirement Income Security Act of 1974, 29 U.S.C. 1132. (iii) Parties exempt from initial disclosure. (A) In a Black Lung benefits proceeding under 30 U.S.C. 901 et seq., see (B) In a proceeding under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901-950, or an associated statute such as the Defense Base Act, 42 U.S.C. 1651-1654, the representative of the Office of Workers' Compensation Programs of the Department of Labor, unless the Solicitor of Labor or the Solicitor's designee has elected to participate in the proceeding under 20 CFR 702.333(b), or unless an employer or carrier has applied for relief under the special fund, as defined in 33 U.S.C. 908(f). (iv) Time for initial disclosures—in general. (v) Time for initial disclosures—for parties served or joined later. (vi) Basis for initial disclosure; unacceptable excuses. (2) Disclosure of expert testimony In general. (ii) Witnesses who must provide a written report. (A) A complete statement of all opinions the witness will express and the basis and reasons for them; (B) The facts or data considered by the witness in forming them; (C) Any exhibits that will be used to summarize or support them; (D) The witness's qualifications, including a list of all publications authored in the previous 10 years; (E) A list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial, a hearing, or by deposition; and (F) A statement of the compensation to be paid for the study and testimony in the case. (iii) Witnesses who do not provide a written report. (A) The subject matter on which the witness is expected to present expert opinion evidence; and (B) A summary of the facts and opinions to which the witness is expected to testify. (iv) Supplementing the disclosure. (3) Prehearing disclosures. (4) Form of disclosures. (d) Signing disclosures and discovery requests, responses, and objections Signature required; effect of signature. (i) With respect to a disclosure, it is complete and correct as of the time it is made; and (ii) With respect to a discovery request, response, or objection, it is: (A) Consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law; (B) Not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (C) Neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action. (2) Failure to sign. (3) Sanction for improper certification. § 18.51 Discovery scope and limits. (a) Scope in general. (b) Limitations on frequency and extent When permitted. (2) Specific limitations on electronically stored information. (3) Inadvertently disclosed privileged or protected information. (4) When required. (i) The discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) The party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) The burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. (c) Hearing preparation: Materials Documents and tangible things. (i) They are otherwise discoverable under paragraph (a) of this section; and (ii) The party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. (2) Protection against disclosure. (3) Previous statement. (i) A written statement that the person has signed or otherwise adopted or approved; or (ii) A contemporaneous stenographic, mechanical, electrical, or other recording—or a transcription of it—that recites substantially verbatim the person's oral statement. (d) Hearing preparation: Experts Deposition of an expert who may testify. (2) Hearing-preparation protection for draft reports or disclosures. (3) Hearing-preparation protection for communications between a party's representative and expert witnesses. (i) Relate to compensation for the expert's study or testimony; (ii) Identify facts or data that the party's representative provided and that the expert considered in forming the opinions to be expressed; or (iii) Identify assumptions that the party's representative provided and that the expert relied on in forming the opinions to be expressed. (4) Expert employed only for hearing preparation. (i) As provided in § 18.62(c); or (ii) On showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means. (e) Claiming privilege or protecting hearing-preparation materials Information withheld. (i) Expressly make the claim; and (ii) Describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. (2) Information produced. in camera [80 FR 28785, May 19, 2015, as amended at 80 FR 37539, July 1, 2015] § 18.52 Protective orders. (a) In general. (1) Forbidding the disclosure or discovery; (2) Specifying terms, including time and place, for the disclosure or discovery; (3) Prescribing a discovery method other than the one selected by the party seeking discovery; (4) Forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters; (5) Designating the persons who may be present while the discovery is conducted; (6) Requiring that a deposition be sealed and opened only on the judge's order; (7) Requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and (8) Requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the judge directs. (b) Ordering discovery. § 18.53 Supplementing disclosures and responses. (a) In general. (1) In a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or (2) As ordered by the judge. (b) Expert witness. [80 FR 28785, May 19, 2015, as amended at 80 FR 37540, July 1, 2015] § 18.54 Stipulations about discovery procedure. Unless the judge orders otherwise, the parties may stipulate that: (a) A deposition may be taken before any person, at any time or place, on any notice, and in the manner specified—in which event it may be used in the same way as any other deposition; and (b) Other procedures governing or limiting discovery be modified— but a stipulation extending the time for any form of discovery must have the judge's approval if it would interfere with the time set for completing discovery, for hearing a motion, or for hearing. § 18.55 Using depositions at hearings. (a) Using depositions In general. (2) Over objection. (i) The party was present or represented at the taking of the deposition or had reasonable notice of it; (ii) It is used to the extent it would be admissible under the applicable rules of evidence if the deponent were present and testifying; and (iii) The use is allowed by paragraphs (a)(3) through (9) of this section. (3) Impeachment and other uses. (4) Deposition of party, agent, or designee. (5) Deposition of expert, treating physician, or examining physician. (6) Unavailable witness. (i) That the witness is dead; (ii) That the witness is more than 100 miles from the place of hearing or is outside the United States, unless it appears that the witness's absence was procured by the party offering the deposition; (iii) That the witness cannot attend or testify because of age, illness, infirmity, or imprisonment; (iv) That the party offering the deposition could not procure the witness's attendance by subpoena; or (v) on motion and notice, that exceptional circumstances make it desirable—in the interests of justice and with due regard to the importance of live testimony in an open hearing—to permit the deposition to be used. (7) Limitations on use Deposition taken on short notice. (ii) Unavailable deponent; party could not obtain a representative. (8) Using part of a deposition. (9) Deposition taken in an earlier action. (b) Objections to admissibility. (c) Form of presentation. (d) Waiver of objections To the notice. (2) To the officer's qualification. (i) Before the deposition begins; or (ii) Promptly after the basis for disqualification becomes known or, with reasonable diligence, could have been known. (3) To the taking of the deposition Objection to competence, relevance, or materiality. (ii) Objection to an error or irregularity. (A) It relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party's conduct, or other matters that might have been corrected at that time; and (B) It is not timely made during the deposition. (iii) Objection to a written question. (4) To completing and returning the deposition. § 18.56 Subpoena. (a) In general. (2) Form and contents Requirements—in general. (A) State the title of the matter and show the case number assigned by the Office of Administrative Law Judges or the Office of Worker's Compensation Programs. In the event that the case number is an individual's Social Security number only the last four numbers may be used. See (B) Bear the signature of the issuing judge; (C) Command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control; or permit the inspection of premises; and (D) Set out the text of paragraphs (c) and (d) of this section. (ii) Command to attend a deposition—notice of the recording method. (iii) Combining or separating a command to produce or to permit inspection; specifying the form for electronically stored information. (iv) Command to produce; included obligations. (b) Service By whom; tendering fees; serving a copy of certain subpoenas. (2) Service in the United States. (3) Service in a foreign country. (4) Proof of service. (c) Protecting a person subject to a subpoena Avoiding undue burden; sanctions. (2) Command to produce materials or permit inspection Appearance not required. (ii) Objections. (A) At any time, on notice to the commanded person, the serving party may move the judge for an order compelling production or inspection. (B) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance. (3) Quashing or modifying a subpoena When required. (A) Fails to allow a reasonable time to comply; (B) Requires a person who is neither a party nor a party's officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person—except that, subject to paragraph (c)(3)(ii)(C) of this section, the person may be commanded to attend the formal hearing; (C) Requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (D) Subjects a person to undue burden. (ii) When permitted. (A) Disclosing a trade secret or other confidential research, development, or commercial information; (B) Disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party; or (C) A person who is neither a party nor a party's officer to incur substantial expense to travel more than 100 miles to attend the formal hearing. (iii) Specifying conditions as an alternative. (A) Shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and (B) Ensures that the subpoenaed person will be reasonably compensated. (d) Duties in responding to a subpoena Producing documents or electronically stored information. (i) Documents. (ii) Form for producing electronically stored information not specified. (iii) Electronically stored information produced in only one form. (iv) Inaccessible electronically stored information. (2) Claiming privilege or protection Information withheld. (A) Expressly make the claim; and (B) Describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim. (ii) Information produced. in camera (e) Failure to obey. § 18.57 Failure to make disclosures or to cooperate in discovery; sanctions. (a) Motion for an order compelling disclosure or discovery In general. (2) Specific motions To compel disclosure. (ii) To compel a discovery response. (A) A deponent fails to answer a question asked under §§ 18.64 and 18.65; (B) A corporation or other entity fails to make a designation under §§ 18.64(b)(6) and 18.65(a)(4); (C) A party fails to answer an interrogatory submitted under § 18.60; or (D) A party fails to respond that inspection will be permitted—or fails to permit inspection—as requested under § 18.61. (iii) Related to a deposition. (3) Evasive or incomplete disclosure, answer, or response. (b) Failure to comply with a judge's order For not obeying a discovery order. (i) Directing that the matters embraced in the order or other designated facts be taken as established for purposes of the proceeding, as the prevailing party claims; (ii) Prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) Striking claims or defenses in whole or in part; (iv) Staying further proceedings until the order is obeyed; (v) Dismissing the proceeding in whole or in part; or (vi) Rendering a default decision and order against the disobedient party; (2) For not producing a person for examination. (c) Failure to disclose, to supplement an earlier response, or to admit. (d) Party's failure to attend its own deposition, serve answers to interrogatories, or respond to a request for inspection In general Motion; grounds for sanctions. (A) A party or a party's officer, director, or managing agent—or a person designated under §§ 18.64(b)(6) and 18.65(a)(4)—fails, after being served with proper notice, to appear for that person's deposition; or (B) A party, after being properly served with interrogatories under § 18.60 or a request for inspection under § 18.61, fails to serve its answers, objections, or written response. (ii) Certification. (2) Unacceptable excuse for failing to act. (3) Types of sanctions. (e) Failure to provide electronically stored information. (f) Procedure. (1) A separately filed motion; or (2) Notice from the judge followed by a reasonable opportunity to be heard. Types of Discovery § 18.60 Interrogatories to parties. (a) In general Number. (2) Scope. (b) Answers and objections Responding party. (i) By the party to whom they are directed; or (ii) If that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who must furnish the information available to the party. (2) Time to respond. (3) Answering each interrogatory. (4) Objections. (5) Signature. (c) Use. (d) Option to produce business records. (1) Specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and (2) Giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries. § 18.61 Producing documents, electronically stored information, and tangible things, or entering onto land, for inspection and other purposes. (a) In general. (1) To produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: (i) Any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or (ii) Any designated tangible things; or (2) To permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. (b) Procedure Contents of the request. (i) Must describe with reasonable particularity each item or category of items to be inspected; (ii) Must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and (iii) May specify the form or forms in which electronically stored information is to be produced. (2) Responses and objections Time to respond. (ii) Responding to each item. (iii) Objections. (iv) Responding to a request for production of electronically stored information. (v) Producing the documents or electronically stored information. (A) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (B) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (C) A party need not produce the same electronically stored information in more than one form. (c) Nonparties. § 18.62 Physical and mental examinations. (a) Examination by notice In general. (2) Contents of the notice. (i) The legal basis for the examination; (ii) The time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it; and (iii) How the reasonable transportation expenses were calculated. (3) Service of notice. (4) Objection. (b) Examination by motion. (c) Examiner's report Delivery of the report. (2) Contents. § 18.63 Requests for admission. (a) Scope and procedure Scope. (i) Facts, the application of law to fact, or opinions about either; and (ii) The genuineness of any described documents. (2) Form; copy of a document. (3) Time to respond; effect of not responding. (4) Answer. (5) Objections. (6) Motion regarding the sufficiency of an answer or objection. (b) Effect of an admission; withdrawing or amending it. § 18.64 Depositions by oral examination. (a) When a deposition may be taken Without leave. (2) With leave. (i) If the parties have not stipulated to the deposition and: (A) The deposition would result in more than 10 depositions being taken under this section or § 18.65 by one of the parties; (B) The deponent has already been deposed in the case; or (C) The party seeks to take the deposition before the time specified in § 18.50(a), unless the party certifies in the notice, with supporting facts, that the deponent is expected to leave the United States and be unavailable for examination in this country after that time; or (ii) If the deponent is confined in prison. (b) Notice of the deposition; other formal requirements Notice in general. (2) Producing documents. (3) Method of recording Method stated in the notice. (ii) Additional method. (4) By remote means. (5) Deposition officer's duties Before the deposition. (A) The officer's name and business address; (B) The date, time, and place of the deposition; (C) The deponent's name; (D) The officer's administration of the oath or affirmation to the deponent; (E) The identity of all persons present; and (F) The date and method of service of the notice of deposition. (ii) Conducting the deposition; avoiding distortion. (iii) After the deposition. (6) Notice or subpoena directed to an organization. (c) Examination and cross-examination; record of the examination; objections; written questions Examination and cross-examination. (2) Objections. (3) Participating through written questions. (d) Duration; sanction; motion to terminate or limit Duration. (2) Sanction. (3) Motion to terminate or limit Grounds. (ii) Order. (e) Review by the witness; changes Review; statement of changes. (i) To review the transcript or recording; and (ii) If there are changes in form or substance, to sign a statement listing the changes and the reasons for making them. (2) Changes indicated in the officer's certificate. (f) Certification and delivery; exhibits; copies of the transcript or recording; filing Certification and delivery. (2) Documents and tangible things Originals and copies. (A) Offer copies to be marked, attached to the deposition, and then used as originals—after giving all parties a fair opportunity to verify the copies by comparing them with the originals; or (B) Give all parties a fair opportunity to inspect and copy the originals after they are marked—in which event the originals may be used as if attached to the deposition. (ii) Order regarding the originals. (3) Copies of the transcript or recording. (4) Notice of filing. (g) Failure to attend a deposition or serve a subpoena. (1) Attend and proceed with the deposition; or (2) Serve a subpoena on a nonparty deponent, who consequently did not attend. § 18.65 Depositions by written questions. (a) When a deposition may be taken Without leave. (2) With leave. (i) If the parties have not stipulated to the deposition and: (A) The deposition would result in more than 10 depositions being taken under this section or § 18.64 by a party; (B) The deponent has already been deposed in the case; or (C) The party seeks to take a deposition before the time specified in § 18.50(a); or (ii) If the deponent is confined in prison. (3) Service; required notice. (4) Questions directed to an organization. (5) Questions from other parties. (b) Delivery to the deposition officer; officer's duties. (1) Take the deponent's testimony in response to the questions; (2) Prepare and certify the deposition; and (3) Send it to the party, attaching a copy of the questions and of the notice. (c) Notice of completion or filing Completion. (2) Filing. Disposition Without Hearing § 18.70 Motions for dispositive action. (a) In general. (b) Motion to remand. (c) Motion to dismiss. (d) Motion for decision on the record. § 18.71 Approval of settlement or consent findings. (a) Motion for approval of settlement agreement. (b) Motion for consent findings and order. (1) A statement that the order has the same effect as one made after a full hearing; (2) A statement that the order is based on a record that consists of the paper that began the proceeding (such as a complaint, order of reference, or notice of administrative determination), as it may have been amended, and the agreement; (3) A waiver of any further procedural steps before the judge; and (4) A waiver of any right to challenge or contest the validity of the order entered into in accordance with the agreement. § 18.72 Summary decision. (a) Motion for summary decision or partial summary decision. (b) Time to file a motion. (c) Procedures Supporting factual positions. (i) Citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (ii) Showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. (2) Objection that a fact is not supported by admissible evidence. (3) Materials not cited. (4) Affidavits or declarations. (d) When facts are unavailable to the nonmovant. (1) Defer considering the motion or deny it; (2) Allow time to obtain affidavits or declarations or to take discovery; or (3) Issue any other appropriate order. (e) Failing to properly support or address a fact. (1) Give an opportunity to properly support or address the fact; (2) Consider the fact undisputed for purposes of the motion; (3) Grant summary decision if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it; or (4) Issue any other appropriate order. (f) Decision independent of the motion. (1) Grant summary decision for a nonmovant; (2) Grant the motion on grounds not raised by a party; or (3) Consider summary decision on the judge's own after identifying for the parties material facts that may not be genuinely in dispute. (g) Failing to grant all the requested relief. (h) Affidavit or declaration submitted in bad faith. Hearing § 18.80 Prehearing statement. (a) Time for filing. (b) Required conference. (1) Stipulate to the facts to the fullest extent possible; and (2) Revise exhibit lists, eliminate duplicative exhibits, prepare joint exhibits, and attempt to resolve any objections to exhibits. (c) Contents. (1) The party's name; (2) The issues of law to be determined with reference to the appropriate statute, regulation, or case law; (3) A precise statement of the relief sought; (4) The stipulated facts that require no proof; (5) The facts disputed by the parties; (6) A list of witnesses the party expects to call; (7) A list of the joint exhibits; (8) A list of the party's exhibits; (9) An estimate of the time required for the party to present its case-in-chief; and (10) Any additional information that may aid the parties' preparation for the hearing or the disposition of the proceeding, such as the need for specialized equipment at the hearing. (d) Joint prehearing statement. (e) Signature. § 18.81 Formal hearing. (a) Public. (b) Taking testimony. (c) Party participation. § 18.82 Exhibits. (a) Identification. (b) Electronic data. (c) Exchange of exhibits. (d) Authenticity. (e) Substitution of copies for original exhibits. (f) Designation of parts of documents. (g) Records in other proceedings. § 18.83 Stipulations. (a) The parties may stipulate to any facts in writing at any stage of the proceeding or orally on the record at a deposition or at a hearing. These stipulations bind the parties unless the judge disapproves them. (b) Every stipulation that requests or requires a judge's action must be written and signed by all affected parties or their representatives. Any stipulation to extend time must state the reason for the date change. (c) A proposed form of order may be submitted with the stipulation; it may consist of an endorsement on the stipulation of the words, “Pursuant to stipulation, it is so ordered,” with spaces designated for the date and the signature of the judge. § 18.84 Official notice. On motion of a party or on the judge's own, official notice may be taken of any adjudicative fact or other matter subject to judicial notice. The parties must be given an adequate opportunity to show the contrary of the matter noticed. § 18.85 Privileged, sensitive, or classified material. (a) Exclusion. (b) Sealing the record. (2) An order that seals material must state findings and explain why the reasons to seal adjudicatory records outweigh the presumption of public access. Sealed materials must be placed in a clearly marked, separate part of the record. Notwithstanding the judge's order, all parts of the record remain subject to statutes and regulations pertaining to public access to agency records. § 18.86 Hearing room conduct. Participants must conduct themselves in an orderly manner. The consumption of food or beverage, and rearranging courtroom furniture are prohibited, unless specifically authorized by the judge. Electronic devices must be silenced and must not disrupt the proceedings. Parties, witnesses and spectators are prohibited from using video or audio recording devices to record hearings. § 18.87 Standards of conduct. (a) In general. (b) Exclusion for misconduct. (c) Review of representative's exclusion. § 18.88 Transcript of proceedings. (a) Hearing transcript. (b) Corrections to the transcript. Post Hearing § 18.90 Closing the record; subsequent motions. (a) In general. (b) Motion to reopen the record. (2) If the record is reopened, the other parties must have an opportunity to offer responsive evidence, and a new evidentiary hearing may be set. (c) Motions after the decision. § 18.91 Post-hearing brief. The judge may grant a party time to file a post-hearing brief with proposed findings of fact, conclusions of law, and the specific relief sought. The brief must refer to all portions of the record and authorities relied upon in support of each assertion. § 18.92 Decision and order. At the conclusion of the proceeding, the judge must issue a written decision and order. § 18.93 Motion for reconsideration. A motion for reconsideration of a decision and order must be filed no later than 10 days after service of the decision on the moving party. § 18.94 Indicative ruling on a motion for relief that is barred by a pending petition for review. (a) Relief pending review. (1) Defer considering the motion; (2) Deny the motion; or (3) State either that the judge would grant the motion if the reviewing body remands for that purpose or that the motion raises a substantial issue. (b) Notice to reviewing body. (c) Remand. § 18.95 Review of decision and review by the Secretary. (a) Review. (b) Finality. (1) In any case for which administrative review is sought or handled in accordance with 20 CFR 655.171(a) or 20 CFR 655.461, at any point from when the BALCA receives a request for review until the passage of 10 business days after the date on which BALCA has issued its decision. (2) In any case for which a de novo hearing is sought or handled under 20 CFR 655.171(b), at any point within 15 business days after the date on which the BALCA has issued its decision. (3) In any case for which review is sought or handled in accordance with 20 CFR 656.26 and 20 CFR 656.27, at any point from when the BALCA receives a request for review until the passage of 30 business days after the BALCA has issued its decision. (c) Review by the Secretary Transmission of information. (ii) Within 3 business days of when the BALCA issues a decision, the Chair of the BALCA, or his or her designee, shall transmit to the Deputy Secretary a copy of the decision and a concise recommendation as to whether the decision involves an issue or issues of such exceptional importance that review by the Secretary is warranted. (2) Review. (ii) When the Secretary assumes jurisdiction over a case, the Secretary shall promptly notify the BALCA. The BALCA shall promptly notify the parties to the case of such action and shall submit the Appeal File and any briefs filed to the Secretary. (iii) In any case the Secretary decides, the Secretary's decision shall be stated in writing and transmitted to the BALCA, which shall promptly publish the decision and transmit it to the parties to the case. Such decision shall constitute final action by the Department and shall serve as binding precedent on all Department employees and in all Department proceedings involving the same issue or issues. (iv) The Solicitor of Labor, or his or her designee, shall have the responsibility for providing legal advice to the Secretary with respect to the Secretary's exercise of review under this section, except that no individual involved in the investigation or prosecution of a case shall advise the Secretary on the exercise of review with respect to such case or a case involving a common nucleus of operative fact. [85 FR 30617, May 20, 2020] Subpart B—Rules of Evidence Source: 55 FR 13219, Apr. 9, 1990, unless otherwise noted. General Provisions § 18.101 Scope. These rules govern formal adversarial adjudications of the United States Department of Labor conducted before a presiding officer. (a) Which are required by Act of Congress to be determined on the record after opportunity for an administrative agency hearing in accordance with the Administrative Procedure Act, 5 U.S.C. 554, 556 and 557, or (b) Which by United States Department of Labor regulation are conducted in conformance with the foregoing provisions, to the extent and with the exceptions stated in § 18.1101. Presiding officer, the judge, § 18.102 Purpose and construction. These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined. § 18.103 Rulings on evidence. (a) Effect of erroneous ruling. (1) Objection. (2) Offer of proof. (b) Record of offer and ruling. (c) Plain error. § 18.104 Preliminary questions. (a) Questions of admissibility generally. (b) Relevance conditioned on fact. (c) Weight and credibility. § 18.105 Limited admissibility. When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the judge, upon request, shall restrict the evidence to its proper scope. § 18.106 Remainder of or related writings or recorded statements. When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. Official Notice § 18.201 Official notice of adjudicative facts. (a) Scope of rule. (b) Kinds of facts. (1) Generally known within the local area, (2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, or (3) Derived from a not reasonably questioned scientific, medical or other technical process, technique, principle, or explanatory theory within the administrative agency's specialized field of knowledge. (c) When discretionary. (d) When mandatory. (e) Opportunity to be heard. (f) Time of taking notice. (g) Effect of official notice. Presumptions § 18.301 Presumptions in general. Except as otherwise provided by Act of Congress, or by rules or regulations prescribed by the administrative agency pursuant to statutory authority, or pursuant to executive order, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. § 18.302 Applicability of state law. The effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule of decision is determined in accordance with State law. Relevancy and Its Limits § 18.401 Definition of relevant evidence. Relevant evidence § 18.402 Relevant evidence generally admissible; irrelevant evidence inadmissible. All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, pursuant to executive order, by these rules, or by other rules or regulations prescribed by the administrative agency pursuant to statutory authority. Evidence which is not relevant is not admissible. § 18.403 Exclusion of relevant evidence on grounds of confusion or waste of time. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of confusion of issues, or misleading the judge as trier of fact, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. § 18.404 Character evidence not admissible to prove conduct; exceptions; other crimes. (a) Character evidence generally. (b) Other crimes, wrongs, or acts. § 18.405 Methods of proving character. (a) Reputation of opinion. (b) Specific instances of conduct. § 18.406 Habit; routine practice. Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. § 18.407 Subsequent remedial measures. When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. § 18.408 Compromise and offers to compromise. Evidence of furnishing or offering or promising to furnish, or of accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, or negativing a contention of undue delay. § 18.409 Payment of medical and similar expenses. Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury. § 18.410 Inadmissibility of pleas, plea discussion, and related statements. Except as otherwise provided in this rule, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions: (a) A plea of guilty which was later withdrawn; (b) A plea of nolo contendere; (c) Any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or (d) Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. However, such a statement is admissible in any proceeding wherein another statement made in the course of the same plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it. § 18.411 Liability insurance. Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness. Privileges § 18.501 General rule. Except as otherwise required by the Constitution of the United States, or provided by Act of Congress, or by rules or regulations prescribed by the administrative agency pursuant to statutory authority, or pursuant to executive order, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law. Witnesses § 18.601 General rule of competency. Every person is competent to be a witness except as otherwise provided in these rules. However with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law. § 18.602 Lack of personal knowledge. A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of § 18.703, relating to opinion testimony by expert witnesses. § 18.603 Oath or affirmation. Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so. § 18.604 Interpreters. An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation. § 18.605 Competency of judge as witness. The judge presiding at the hearing may not testify in that hearing as a witness. No objection need be made in order to preserve the point. § 18.606 [Reserved] § 18.607 Who may impeach. The credibility of a witness may be attacked by any party, including the party calling the witness. § 18.608 Evidence of character and conduct of witness. (a) Opinion and reputation evidence of character. (1) The evidence may refer only to character for truthfulness or untruthfulness, and (2) Evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (b) Specific instances of conduct. The giving of testimony by any witness does not operate as a waiver of the witness' privilege against self-incrimination when examined with respect to matters which relate only to credibility. § 18.609 Impeachment by evidence of conviction of crime. (a) General rule. (b) Time limit. (c) Effect of pardon, annulment, or certificate of rehabilitation. (1) The conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) The conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. (d) Juvenile adjudications. (e) Pendency of appeal. [55 FR 13219, Apr. 9, 1990; 55 FR 14033, Apr. 13, 1990] § 18.610 Religious beliefs or opinions. Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced. § 18.611 Mode and order of interrogation and presentation. (a) Control by judge. (1) Make the interrogation and presentation effective for the ascertainment of the truth, (2) Avoid needless consumption of time, and (3) Protect witnesses from harassment or undue embarrassment. (b) Scope of cross-examination. (c) Leading questions. § 18.612 Writing used to refresh memory. If a witness uses a writing to refresh memory for the purpose of testifying, either while testifying, or before testifying if the judge in the judge's discretion determines it is necessary in the interest of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the judge shall examine the writing in camera, excise any portion not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available in the event of review. If a writing is not produced or delivered pursuant to order under this rule, the judge shall make any order justice requires. § 18.613 Prior statements of witnesses. (a) Examining witness concerning prior statement. (b) Extrinsic evidence of prior inconsistent statement of witness. § 18.614 Calling and interrogation of witnesses by judge. (a) Calling by the judge. (b) Interrogation by the judge. (c) Objections. § 18.615 Exclusion of witnesses. At the request of a party the judge shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and the judge may make the order of the judge's own motion. This rule does not authorize exclusion of a party who is a natural person, or an officer or employee of a party which is not a natural person designated as its representative by its attorney, or a person whose presence is shown by a party to be essential to the presentation of the party's cause. Opinions and Expert Testimony § 18.701 Opinion testimony by lay witnesses. If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally based on the perception of the witness and helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. § 18.702 Testimony by experts. If scientific, technical, or other specialized knowledge will assist the judge as trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. § 18.703 Bases of opinion testimony by experts. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. § 18.704 Opinion on ultimate issue. Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the judge as trier of fact. § 18.705 Disclosure of facts or data underlying expert opinion. The expert may testify in terms of opinion or inference and give reasons therefor without prior disclosure of the underlying facts or data, unless the judge requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. § 18.706 Judge appointed experts. (a) Appointment. (b) Compensation. (c) Parties' experts of own selection. Hearsay § 18.801 Definitions. (a) Statement. statement (b) Declarant. declarant (c) Hearsay. Hearsay (d) Statements which are not hearsay. (1) Prior statement by witness. (i) Inconsistent with the declarant's testimony, or (ii) Consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (iii) One of identification of a person made after perceiving the person; or (2) Admission by party-opponent. (i) The party's own statement in either an individual or a representative capacity, or (ii) A statement of which the party has manifested an adoption or belief in its truth, or (iii) A statement by a person authorized by the party to make a statement concerning the subject, or (iv) A statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (v) A statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. § 18.802 Hearsay rule. Hearsay is not admissible except as provided by these rules, or by rules or regulations of the administrative agency prescribed pursuant to statutory authority, or pursuant to executive order, or by Act of Congress. § 18.803 Hearsay exceptions; availability of declarant immaterial. (a) The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (1) Present sense impression. (2) Excited utterance. (3) Then existing mental, emotional, or physical condition. (4) Statements for purposes of medical diagnosis or treatment. (5) Recorded recollection. (6) Records of regularly conducted activity. business (7) Absence of entry in records kept in accordance with the provisions of paragraph (6). (8) Public records and reports. (i) The activities of the office or agency, or (ii) Matters observed pursuant to duty imposed by law as to which matters there was a duty to report, or (iii) Factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. (9) Records of vital statistics. (10) Absence of public record or entry. (11) Records of religious organizations. (12) Marriage, baptismal, and similar certificates. (13) Family records. (14) Records of documents affecting an interest in property. (15) Statements in documents affecting an interest in property. (16) Statements in ancient documents. (17) Market reports, commercial publications. (18) Learned treatises. (19) Reputation concerning personal or family history. (20) Reputation concerning boundaries or general history. (21) Reputation as to character. (22) Judgment of previous conviction. (23) Judgment as to personal, family, or general history, or boundaries. (24) Other exceptions. (25) Self-authentication. (26) Bills, estimates and reports. (i) Hospital bills on the official letterhead or billhead of the hospital, when dated and itemized. (ii) Bills of doctors and dentists, when dated and containing a statement showing the date of each visit and the charge therefor. (iii) Bills of registered nurses, licensed practical nurses and physical therapists, or other licensed health care providers when dated and containing an itemized statement of the days and hours of service and charges therefor. (iv) Bills for medicine, eyeglasses, prosthetic device, medical belts or similar items, when dated and itemized. (v) Property repair bills or estimates, when dated and itemized, setting forth the charges for labor and material. In the case of an estimate, the party intending to offer the estimate shall forward with his notice to the adverse party, together with a copy of the estimate, a statement indicating whether or not the property was repaired, and, if so, whether the estimated repairs were made in full or in part and by whom, the cost thereof, together with a copy of the bill therefore. (vi) Reports of past earnings, or of the rate of earnings and time lost from work or lost compensation, prepared by an employer on official letterhead, when dated and itemized. The adverse party may not dispute the authenticity, the value or reasonableness of such charges, the necessity therefore or the accuracy of the report, unless the adverse party files and serves written objection thereto sufficiently in advance of the hearing stating the objections, and the grounds thereof, that the adverse party will make if the bill, estimate, or reports is offered at the time of the hearing. An adverse party may call the author of the bill, estimate, or report as a witness and examine the witness as if under cross-examination. (27) Medical reports. (28) Written reports of expert witnesses. (29) Written statements of lay witnesses. (30) Deposition testimony. (b) [Reserved] § 18.804 Hearsay exceptions; declarant unavailable. (a) Definition of unavailability. Unavailability as a witness (1) Is exempted by ruling of the judge on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or (2) Persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the judge to do so; or (3) Testifies to a lack of memory of the subject matter of the declarant's statement; or (4) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (5) Is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under paragraph (b) (2), (3), or (4) of this section, the declarant's attendance or testimony) by process or other reasonable means. A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. (b) Hearsay exceptions. (1) Former testimony. (2) Statement under belief of impending death. (3) Statement against interest. (4) Statement of personal or family history. (ii) A statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared. (5) Other exceptions. (i) The statement is offered as evidence of a material fact; (ii) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (iii) The general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant. § 18.805 Hearsay within hearsay. Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules. § 18.806 Attacking and supporting credibility of declarant. When a hearsay statement, or a statement defined in § 18.801(d)(2), (iii), (iv), or (v), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination. Authentication and Identification § 18.901 Requirement of authentication or identification. (a) General provision. (b) Illustrations. (1) Testimony of witness with knowledge. (2) Nonexpert opinion on handwriting. (3) Comparison by judge or expert witness. (4) Distinctive characteristics and the like. (5) Voice identification. (6) Telephone conversations. (i) In the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (ii) In the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone. (7) Public records or reports. (8) Ancient documents or data compilation. (i) Is in such condition as to create no suspicion concerning its authenticity, (ii) Was in a place where it, if authentic, would likely be, and (iii) Has been in existence 20 years or more at the time it is offered. (9) Process or system. (10) Methods provided by statute or rule. § 18.902 Self-authentication. (a) Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: (1) Domestic public documents under seal. (2) Domestic public documents not under seal. (3) Foreign public documents. (i) Of the executing or attesting person, or (ii) Of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of embassy or legation, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the judge may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification. (4) Certified copies of public records. (5) Official publications. (6) Newspapers and periodicals. (7) Trade inscriptions and the like. (8) Acknowledged documents. (9) Commercial paper and related documents. (10) Presumptions under Acts of Congress or administrative agency rules or regulations. (11) Certified records of regularly conducted activity. (i) Was made, at or near the time of the occurrence of the matters set forth, by, or from information transmitted by, a person with knowledge of those matters, (ii) Is kept in the course of the regularly conducted activity, and (iii) Was made by the regularly conducted activity as a regular practice, unless the sources of information or the method or circumstances of preparation indicate lack of trustworthiness. A record so certified is not self-authenticating under this paragraph unless the proponent makes an intention to offer it known to the adverse party and makes it available for inspection sufficiently in advance of its offer in evidence to provide the adverse party with a fair opportunity to object or meet it. As used in this subsection, certifies (12) Bills, estimates, and reports. (i) Hospital bills on the official letterhead or billhead of the hospital, when dated and itemized. (ii) Bills of doctors and dentists, when dated and containing a statement showing the date of each visit and the charge therefor. (iii) Bills of registered nurses, licensed practical nurses and physical therapists or other licensed health care providers, when dated and containing an itemized statement of the days and hours of service and the charges therefor. (iv) Bills for medicine, eyeglasses, prosthetic devices, medical belts or similar items, when dated and itemized. (v) Property repair bills or estimates, when dated and itemized, setting forth the charges for labor and material. In the case of an estimate, the party intending to offer the estimate shall forward with his notice to the adverse party, together with a copy of the estimate, a statement indicating whether or not the property was repaired, and, if so, whether the estimated repairs were made in full or in part and by whom, the cost thereof, together with a copy of the bill therefor. (vi) Reports of past earnings, or of the rate of earnings and time lost from work or lost compensation, prepared by an employer on official letterhead, when dated and itemized. The adverse party may not dispute the authenticity, therefor, unless the adverse party files and serves written objection thereto sufficiently in advance of the hearing stating the objections, and the grounds therefor, the adverse party will make if the bill, estimate, or report is offered at the time of the hearing. An adverse party may call the authors of the bill, estimate, or report as a witness and examine the witness as if under cross-examination. (13) Medical reports. (14) Written reports of expert witnesses. (15) Written statements of lay witnesses. (i) A copy of the written statement has been filed and served upon the adverse party sufficiently in advance of the hearing to provide the adverse party with a fair opportunity to prepare to object or meet it, and (ii) If the declarant is reasonably available as a witness, as determined by the judge, no adverse party has sufficiently in advance of the hearing filed and served upon the noticing party a written demand that the declarant be produced in person to testify at the hearing. An adverse party may call the declarant as a witness and examine the witness as if under cross-examination. (16) Deposition testimony. (b) [Reserved] § 18.903 Subscribing witness' testimony unnecessary. The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing. Contents of Writings, Recordings, and Photographs § 18.1001 Definitions. (a) For purposes of this article the following definitions are applicable: (1) Writings and recordings. Writings recordings (2) Photographs. Photographs (3) Original. original original original. (4) Duplicate. duplicate (b) [Reserved] § 18.1002 Requirement of original. To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules, or by rule or regulation prescribed by the administrative agency pursuant to statutory authority, or pursuant to executive order, or by Act of Congress. § 18.1003 Admissibility of duplicates. A duplicate is admissible to the same extent as an original unless a genuine question is raised as to the authenticity of the original, or in the circumstances it would be unfair to admit the duplicate in lieu of the original. § 18.1004 Admissibility of other evidence of contents. (a) The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if: (1) Originals lost or destroyed. (2) Original not obtainable. (3) Original in possession of opponent. (4) Collateral matters. (b) [Reserved] § 18.1005 Public records. The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with § 18.902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given. § 18.1006 Summaries. The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined at the hearing may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The judge may order that they be produced at the hearing. § 18.1007 Testimony or written admission of party. Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party's written admission, without accounting for the nonproduction of the original. § 18.1008 Functions of the judge. When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the judge to determine in accordance with the provisions of § 18.104(a). However, when an issue is raised whether the asserted writing ever existed; or whether another writing, recording, or photograph produced at the hearing is the original; or whether other evidence of contents correctly reflects the contents, the issue is for the judge as trier of fact to determine as in the case of other issues of fact. Applicability § 18.1101 Applicability of rules. (a) General provision. (1) Which are required by Act of Congress to be determined on the record after opportunity for an administrative agency hearing in accordance with the Administrative Procedure Act, 5 U.S.C. 554, 556 and 557, or (2) Which by United States Department of Labor regulation are conducted in conformance with the foregoing provisions. Presiding officer, the judge, (b) Rules inapplicable. (1) Preliminary questions of fact. (2) Longshore, black lung, and related acts. (c) Rules inapplicable in part. § 18.1102 [Reserved] § 18.1103 Title. These rules may be known as the United States Department of Labor Rules of Evidence and cited as 29 CFR 18.__ (1989). § 18.1104 Effective date. These rules are effective thirty days after date of publication with respect to formal adversarial adjudications as specified in § 18.1101 except that with respect to hearings held following an investigation conducted by the United States Department of Labor, these rules shall be effective only where the investigation commenced thirty days after publication. Appendix to Subpart B of Part 18—Reporter's Notes Reporter's Introductory Note The Rules of Evidence for the United States Department of Labor modify the Federal Rules of Evidence for application in formal adversarial adjudications conducted by the United States Department of Labor. The civil nonjury nature of the hearings and the broad underlying values and goals of the administrative process are given recognition in these rules. Reporter's Note to § 18.102 In all formal adversarial adjudications of the United States Department of Labor governed by these rules, and in particular such adjudications in which a party appears without the benefit of counsel, the judge is required to construe these rules and to exercise discretion as provided in the rules, see, e.g., § 18.403, to secure fairness in administration and elimination of unjustifiable expense and delay to the end that the truth may be ascertained and the proceedings justly determined, § 18.102. The judge shall also exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment, § 18.611(a). Reporter's Note to § 18.103 Section 18.103(a) provides that error is not harmless, i.e., a substantial right is affected, unless on review it is determined that it is more probably true than not true that the error did not materially contribute to the decision or order of the court. The more probably true than not true test is the most liberal harmless error standard. See Haddad Lockheed California Corp., The purpose of a harmless error standard is to enable an appellate court to gauge the probability that the trier of fact was affected by the error. See R. Traynor, [The Riddle of Harmless Error] at 29-30. Perhaps the most important factor to consider in fashioning such a standard is the nature of the particular fact-finding process to which the standard is to be applied. Accordingly, a crucial first step in determining how we should gauge the probability that an error was harmless is recognizing the distinction between civil and criminal trials. See Kotteakos United States, Valle-Valdez, Kotteakos, supra, The second facet of the distinction between errors in civil and criminal trials involves the differing degrees of certainty owed to civil and criminal litigants. Whereas a criminal defendant must be found guilty beyond a reasonable doubt, a civil litigant merely has a right to a jury verdict that more probably than not corresponds to the truth. The term materially contribute substantially swayed, Kotteakos United States, material effect. Holloway Arkansas, contribute Schneble Florida, United States Hastings, Error will not be considered in determining whether a substantial right of a party was affected if the evidence was admitted in error following a properly made objection, § 18.103(a)(1), and the judge explicitly states that he or she does not rely on such evidence in support of the decision or order. The judge must explicitly decline to rely upon the improperly admitted evidence. The alternative of simply assuming nonreliance unless the judge explicitly states reliance, goes too far toward emasculating the benefits flowing from rules of evidence. The question addressed in Richardson Perales, substantial evidence substantial evidence Reporter's Note to § 18.104 As to the standard on review with respect to questions of admissibility generally, section 18.104(a), see In re Japanese Electronic Products Antitrust Litigation, United States Wilson, As to the standard on review with respect to relevancy, conditional relevancy and the exercise of discretion, see, e.g., United States Abel, Alford United States, Hill Bache Halsey Stuart Shields Inc., Beacham Lee-Norse, Id. Reporter's Note to § 18.201 A.P.A. section 556(e) provides that “when an agency decision rests on official notice of a material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the contrary.” No definition of “official notice” is provided. An administrative agency may take official notice of any adjudicative fact that could be judicially noticed by a court. In addition “the rule is now clearly emerging that an administrative agency may take official notice of any generally recognized technical or scientific facts within the agency's specialized knowledge, subject always to the proviso that the parties must be given adequate advance notice of the facts which the agency proposes to note, and given adequate opportunity to show the inaccuracy of the facts or the fallacy of the conclusions which the agency proposes tentatively to accept without proof. To satisfy this requirement, it is necessary that a statement of the facts noticed must be incorporated into the record. The source material on which the agency relies should, on request, be made available to the parties for their examination.” 1 Cooper, State Administrative Law 412-13 (1965). Accord, Uniform Law Commissioners' Model State Administrative Procedure Act section 10(4) (1961) (“Notice may be taken of judicially cognizable facts. In addition, notice may be taken of generally recognized technical or scientific facts within the agency's specialized knowledge. Parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the material noticed, including any staff memoranda or data, and they shall be afforded an opportunity to contest the material so noticed. The agency's experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence.”); Schwartz, Administrative Law § 7.16 at 375 (2d ed. 1984) (“Clearly an agency may take notice of the same kinds of fact of which a court takes judicial notice. It has, however, been recognized that the differences between agencies and courts * * * may justify a broader approach. Under it, an agency may be permitted to take ‘official notice’ not only of facts that are obvious and notorious to the average man but also of those that are obvious and notorious to an expert in the given field.” “A commission that regulates gas companies may take notice of the fact that a well-managed gas company loses no more than 7 percent of its gas through leakage, condensation, expansion, or contraction, where its regulation of gas companies, over the years has made the amount of ‘unaccounted for gas’ without negligence obvious and notorious to it as the expert in gas regulation. A workers' compensation commission may similarly reject a claim that an inguinal hernia was traumatic in origin where the employee gave no indication of pain and continued work for a month after the alleged accident. The agency had dealt with numerous hernia cases and was as expert in diagnosing them as any doctor would be. Its experience taught it that where a hernia was traumatic in origin, there was immediate discomfort, outward evidences of pain observable to fellow employees, and at least temporary suspension from work. The agency could notice this fact based upon its knowledge as an expert and reject uncontradicted opinion testimony that its own expertise renders unpersuasive.”). Compare Uniform Law Commissioners' Model State Administrative Procedure Act section 4-212(f) (1981) (“Official notice may be taken of (i) any fact that could be judicially noticed in the courts of this State, (ii) the record of other proceedings before the agency, (iii) technical or scientific matters within the agency's specialized knowledge, and (iv) codes or standards that have been adopted by an agency of the United States, of this State or of another state, or by a nationally recognized organization or association. Parties must be notified before or during the hearing, or before the issuance of any initial or final order that is based in whole or in part on facts or materials noticed, of the specific facts or material noticed and the source thereof, including any staff memoranda and data, and be afforded an opportunity to contest and rebut the facts or materials so noticed.”). Contra Davis, Official Notice, 62 Harv. L. Rev. 537, 539 (1949) (“To limit official notice to facts which are beyond the realm of dispute would virtually emasculate the administrative process. The problem of official notice should not be one of drawing lines between disputable and indisputable facts. Nor should it even be one of weighing the importance of basing decisions upon all available information against the importance of providing full and fair hearings in the sense of permitting parties to meet all materials that influence decision. The problem is the intensely practical one of devising a procedure which will provide both informed decisions and fair hearings without undue inconvenience or expense.”). Section 18.201 adopts the philosophy of Federal Rule of Evidence 201. The Advisory Committee's Note to Fed.R.Evid. 201 (b) states: With respect to judicial notice of adjudicative facts, the tradition has been one of caution in requiring that the matter be beyond reasonable controversy. This tradition of circumspection appears to be soundly based, and no reason to depart from it is apparent. As Professor Davis says: “The reason we use trial-type procedure, I think, is that we make the practical judgment, on the basis of experience, that taking evidence, subject to cross-examination and rebuttal, is the best way to resolve controversies involving disputes of adjudicative facts, that is, facts pertaining to the parties. The reason we require a determination on the record is that we think fair procedure in resolving disputes of adjudicative facts calls for giving each party a chance to meet in the appropriate fashion the facts that come to the tribunal's attention, and the appropriate fashion for meeting disputed adjudicative facts includes rebuttal evidence, cross-examination, usually confrontation, and argument (either written or oral or both). The key to a fair trial is opportunity to use the appropriate weapons (rebuttal evidence, cross-examination, and argument) to meet adverse materials that come to the tribunal's attention.” A System of Judicial Notice Based on Fairness and Convenience, in Perspectives of Law 69, 93 (1964). The rule proceeds upon the theory that these considerations call for dispensing with traditional methods of proof only in clear cases. Compare Professor Davis' conclusion that judicial notice should be a matter of convenience, subject to requirements of procedural fairness. Id., Accordingly, notice that items (ii) and (iv) of the Uniform Law Commissioners' Model State Administrative Procedure Act quoted above are not included as separate items in § 18.201. However codes and standards, (iv), to the extent not subject to reasonable question fall within § 18.201(b)(2). To the extent such codes and standards do not so fall, proof should be required. Official notice of records of other proceedings before the agency would “permit an agency to notice facts contained in its files, such as the revenue statistics contained in the reports submitted to it by a regulated company.” Schwartz, supra Reporter's Note to § 18.301 Section 18.301 does not prevent an administrative agency by either rule, regulation, or common law development from allocating burdens of production and burdens of persuasion in an otherwise permissible manner. See N.L.R.B. Transportation Management Corp., In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. The Rule merely defines the term ‘presumption.’ It in no way restricts the authority of a court or an agency to change the customary burdens of persuasion in a manner that otherwise would be permissible. Indeed, were respondent correct, we could not have assigned to the defendant the burden of persuasion on one issue in Mt. Healthy City Board of Education Doyle, Reporter's Note to § 18.302 The Advisory Committee's Note to Federal Rule of Evidence 302, 56 F.R.D. 118, 211 states: A series of Supreme Court decisions in diversity cases leaves no doubt of the relevance of Erie Railroad Co. Tompkins, Cities Service Oil Co. Dunlap, Palmer Hoffman, Dick New York Life Ins. Co., The situations in which the state law is applied have been tagged for convenience in the preceding discussion as “diversity cases.” The designation is not a completely accurate one since Erie Vestal, Erie R. R. Tompkins: A Projection, The Federal Courts and the Federal System, It is anticipated that § 18.302 will very rarely come into play. Reporter's Note to § 18.403 Rule 403 of the Federal Rules of Evidence provides for the exclusion of relevant evidence on the grounds of unfair prejudice. Since all effective evidence is prejudicial in the sense of being damaging to the party against whom it is offered, prejudice which calls for exclusion is given a more specialized meaning: An undue tendency to suggest decision on an improper basis, commonly but not necessarily an emotional one, such as bias, sympathy, hatred, contempt, retribution or horror. Unfair prejudice is not, however, a proper ground for the exclusive of relevant evidence under these rules. Judges have shown over the years the ability to resist deciding matters on such an improper basis. Accord Gulf States Utilities Co. Ecodyne Corp., While § 18.403, like Rule 403 of the Federal Rules of Evidence, does speak in terms of both confusion of the issues and misleading of the trier of fact, the distinction between such terms is unclear in the literature and in the cases. McCormick, Evidence section 185 at 546 (3d ed. 1984), refers to the probability that certain proof and the answering evidence that it provokes might unduly distract the trier of fact from the main issues. 2 Wigmore, Evidence section 443 at 528-29 (Chadbourn rev. 1979), describes the concept as follows: In attempting to dispute or explain away the evidence thus offered, new issues will arise as to the occurrence of the instances and the similarity of conditions, new witnesses will be needed whose cross-examination and impeachment may lead to further issues; and that thus the trial will be unduly prolonged, and the multiplicity of minor issues will be such that the jury will lose sight of the main issue, and the whole evidence will be only a mass of confused data from which it will be difficult to extract the kernel of controversy. Both commentators are clearly describing the notion of confusion of the issues. The notion of confusion of the issues of course applies as well to a reviewing body considering a record in such condition. While a trier of fact or reviewing body confused in the foregoing manner can also be said to have been misled, it is suggested that the concept of misleading refers primarily to the possibility of the trier of fact overvaluing the probative value of a particular item of evidence for any reason other than the emotional reaction associated with unfair prejudice. To illustrate, evidence of the results of a lie detector, even where an attempt is made to explain fully the significance of the results, is likely to be overvalued by the trier of fact. Similarly, the test of Frye United States, Occasionally evidence is excluded not because distracting side issues will be created but rather because an unsuitable amount of time would be consumed in clarifying the situation. Concerns associated with the proper use of trial time also arise where the evidence being offered is relevant to a fact as to which substantial other evidence has already been introduced, including evidence bearing on the question of credibility, where the evidence itself possesses only minimal probative value, such as evidence admitted as background, or where evidence is thought by the court to be collateral. In recognition of the legitimate concern of the court with expenditures of time, § 18.403 provides for exclusion of evidence where its incremental probative value is substantially outweighed by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Roughly speaking undue delay can be argued to refer to delay caused by the failure of the party to be able to produce the given evidence at the appropriate time at trial but only at some later time. Waste of time may be taken to refer to the fact that the evidence possesses inadequate incremental probative value in light of the time its total exploration will consume. Cumulative refers to multiple sources of different evidence establishing the same fact of consequence as well as multiple same sources, such as ten witnesses all testifying to the same speed of the car or the same character of a witness. Reporter's Note to § 18.501 The Conference Report to Federal Rule of Evidence 501, 1975 U.S. Code Cong. & Ad. News 7098, 7100 states: Rule 501 deals with the privilege of a witness not to testify. Both the House and Senate bills provide that federal privilege law applies in criminal cases. In civil actions and proceedings, the House bill provides that state privilege law applies “to an element of a claim or defense as to which State law supplies the rule of decision.” The Senate bill provides that “in civil actions and proceedings arising under 28 U.S.C. 1332 or 28 U.S.C. 1335, or between citizens of different States and removed under 28 U.S.C. 1441(b) the privilege of a witness, person, government, State or political subdivision thereof is determined in accordance with State law unless with respect to the particular claim or defense, Federal law supplies the rule of decision.” The wording of the House and Senate bills differs in the treatment of civil actions and proceedings. The rule in the House bill applies to evidence that relates to “an element of a claim or defense.” If an item of proof tends to support or defeat a claim or defense, or an element of a claim or defense, and if state law supplies the rule of decision for that claim or defense, then state privilege law applies to that item of proof. Under the provision in the House bill, therefore, state privilege law will usually apply in diversity cases. There may be diversity cases, however, where a claim or defense is based upon federal law. In such instances, federal privilege law will apply to evidence relevant to the federal claim or defense. See Sola Electric Co. Jefferson Electric Co., In nondiversity jurisdiction civil cases, federal privilege law will generally apply. In those situations where a federal court adopts or incorporates state law to fill interstices or gaps in federal statutory phrases, the court generally will apply federal privilege law. As Justice Jackson has said: A federal court sitting in a nondiversity case such as this does not sit as a local tribunal. In some cases it may see fit for special reasons to give the law of a particular state highly persuasive or even controlling effect, but in the last analysis its decision turns upon the law of the United States, not that of any state. D'Oench, Duhme & Co. Federal Deposit Insurance Corp., Holmberg Armbrecht, DeSylva Ballentine, In civil actions and proceedings, where the rule of decision as to a claim or defense or as to an element of a claim or defense is supplied by state law, the House provision requires that state privilege law apply. The Conference adopts the House provision. It is anticipated that the proviso in § 18.501 will very rarely come into play. Reporter's Note to § 18.601 The Conference Report to Federal Rule of Evidence 601, 1975 U.S. Code Cong. & Ad. News 7051, 7059 states: Rule 601 deals with competency of witnesses. Both the House and Senate bills provide that federal competency law applies in criminal cases. In civil actions and proceedings, the House bill provides that state competency law applies “to an element of a claim or defense as to which State law supplies the rule of decision.” The Senate bill provides that “in civil actions and proceedings arising under 28 U.S.C. 1332 or 28 U.S.C. 1335, or between citizens of different States and removed under 28 U.S.C. 1441(b) the competency of a witness, person, government, State or political subdivision thereof is determined in accordance with State law, unless with respect to the particular claim or defense, Federal law supplies the rule of decision.” The wording of the House and Senate bills differs in the treatment of civil actions and proceedings. The rule in the House bill applies to evidence that relates to “an element of a claim or defense.” If an item of proof tends to support or defeat a claim or defense, or an element of a claim or defense, and if state law supplies the rule of decision for that claim or defense, then state competency law applies to that item of proof. For reasons similar to those underlying its action on Rule 501, the Conference adopts the House provision. It is anticipated that the proviso to § 18.601 will very rarely come into play. Reporter's Note to § 18.609 Consistent with the position taken in § 18.403, unfair prejudice is not felt to be a proper reason of the exclusion of relevant evidence in a hearing where the judge is the trier of fact. Sections 18.609 (a) and (b) provide for the use of every prior conviction punishable by death or imprisonment in excess of one year under the law under which the witness was convicted and every prior conviction involving dishonesty or false statement, regardless of punishment, provided not more than ten years has elapsed since the date of the conviction or the release of the witness from the confinement imposed for that conviction, whichever is the later date. Convictions more than ten years old are felt to be too stale to be admitted to impeach the credibility of a witness testifying in any hearing to which these rules apply. Reporter's Note to § 18.801 Rule 801(d)(1)(A) of the Federal Rules of Evidence has been revised in § 18.801(d)(1)(A) to permit the substantive admissibility of all prior inconsistent statements. The added protection of certainty of making and circumstances conducive to trustworthiness provided by the restriction that the prior inconsistent statement be “given under oath subject to the penalty of perjury at a trial, hearing, in other proceeding, or in a deposition” were added by Congress to Federal Rule of Evidence 801(d)(1)(A) for the benefit of the criminal defendant. See Graham, Employing Inconsistent Statements for Impeachment and as Substantive Evidence: A Critical Review and Proposed Amendments of Federal Rules of Evidence 801(d)(1)(A), Reporter's Note to § 18.802 An “administrative file” is admissible as such to the extent so provided by rule or regulation of the administrative agency prescribed pursuant to statutory authority, or pursuant to executive order, or by Act of Congress. If a program provides for the creation of an “administrative file” and for the submission of an “administrative file” to the judge presiding at a formal adversarial adjudication governed by these rules, see section 18.1101, the “administrative file” would fall outside the bar of the hearsay rule. Similarly, such “administrative file” is self-authenticating, section 18.902(10). Reporter's Note to § 18.803 Section 18.803(24) provides that the “equivalent circumstantial guarantees of trustworthiness” required to satisfy the “other [reliable] hearsay” exception is that possessed solely by the “aforementioned hearsay exceptions,” i.e., §§ 18.803(1)-18.803(24). The hearsay exceptions which follow, i.e., §§ 18.803(25)-18.803(30), rely too greatly upon necessity and convenience to serve as a basis to judge “equivalent circumstantial guarantees of trustworthiness.” Section 18.803(25) provides a hearsay exception for the self-authenticating aspect of documents and other items as provided in § 18.902. Out of court statements admitted under § 18.902 for the purpose of establishing that the document or other item offered into evidence is as purported to be are received in evidence to establish the truth of the matter stated, §§ 18.801(a)-(c). Section 18.802 provides that “hearsay is not admissible except as provided by these rules * * *” Section 18.902 thus operates as a hearsay exception on the limited question of authenticity. Section 18.902 does not, however, purport to create a hearsay exception for matters asserted to be true in the self-authenticated exhibit itself. As a matter of drafting consistency, it is preferable to have a specific hearsay exception in § 18.803 for statements of self-authentication under § 18.902 than to have a hearsay exception exist in these rules not bearing an 18.800 number. Sections 18.803(26) and 18.803(27) are derived from Rules 4(e) and (f) of the Arizona Uniform Rules of Procedure for Arbitration. Section 18.803(26)(f) is derived from Illinois Supreme Court Rule 90(c)(4). Sections 18.803(27) and 18.803(28) maintain the common law distinction between a treating physician, i.e., medical treatment, and an examining or nontreating physician, i.e., medical diagnosis. A treating physician provides or acts with a view toward providing medical treatment. An examining physician is one hired with a view toward testifying on behalf of a party and not toward treating a patient. As such, written reports of the examining physician are not felt to be sufficiently trustworthy to be given the preferred treatment of § 18.803(27). Thus a report of a physician made for the purpose of medical treatment, i.e., treating physician, is admissible if the requirements of § 18.803(27) are satisfied. A report of physician prepared with a view toward litigation, i.e., examining physician, satisfying the requirements of § 18.802(28) is also admissible. The reports of a given physician may, of course, fall within either or both categories. Reports of any medical surveillance test the purpose of which is to detect actual or potential impairment of health or functional capacity and autopsy reports fall within § 18.803(28). Section 18.803(28) is derived from Rule 1613(b)(1) of the California Rules of Court. A summary of litigation experience of the expert is required to assist the evaluation of credibility. Section 18.803(29) is derived from Rule 1613(b)(2) of the California Rules of Court. Section 18.803(30) is derived from Rule 1613(b)(3) of the California Rules of Court. Sections 18.803(26)-18.803(30) each provide that the adverse party may call the declarant of the hearsay statement, if available, as a witness and examine the witness as if under cross-examination. The proviso relating to the calling of witnesses is derived from Rule 1305(b) of the Pennsylvania Rules of Court Procedure Governing Compulsory Arbitration. See also §§ 18.902(12)-18.902(16) infra. These rules take no position with respect to which party must initially bear the cost of lay witness and expert witness fees nor as to the ultimate disposition of such fees. Ordinarily, however, it is anticipated that the adverse party calling the witness should initially pay statutory witness fees, mileage, etc., and reasonable compensation to an expert witness in whatever sum and at such time as the judge may allow. Such witness fees, mileage, etc., and reasonable expert witness compensation should thereafter be charged to the same extent and in like manner as other such costs. Reporter's Note to § 18.902 Section 18.902(11) is modeled upon Uniform Rule of Evidence 902(11). The requirement of a final certification with respect to a foreign record has been deleted as unnecessary in accordance with the position adopted in 18 U.S.C. 3505 which governs the self-authentication of a foreign record offered in a federal criminal proceeding. The “Comment” to Uniform Rule of Evidence 902(11) states: Subsection 11 is new and embodies a revised version of the recently enacted federal statute dealing with foreign records of regularly conducted activity, 18 U.S.C. 3505. Under the federal statute, authentication by certification is limited to foreign business records and to use in criminal proceedings. This subsection broadens the federal provision so that it includes domestic as well as foreign records and is applicable in civil as well as criminal cases. Domestic records are presumably no less trustworthy and the certification of such records can more easily be challenged if the opponent of the evidence chooses to do so. As to the federal statute's limitation to criminal matters, ordinarily the rules are more strictly applied in such cases, and the rationale of trustworthiness is equally applicable in civil matters. Moreover, the absence of confrontation concerns in civil actions militates in favor of extending the rule to the civil side as well. The rule requires that the certified record be made available for inspection by the adverse party sufficiently in advance of the offer to permit the opponent a fair opportunity to challenge it. A fair opportunity to challenge the offer may require that the proponent furnish the opponent with a copy of the record in advance of its introduction and that the opponent have an opportunity to examine, not only the record offered, but any other records or documents from which the offered record was procured or to which the offered record relates. That is a matter not addressed by the rule but left to the discretion of the trial judge. Sections 18.902 (12) and (13) are derived from Rule 4 (e) and (f) of the Arizona Uniform Rules of Procedure for Arbitration. Section 18.902(12)(f) is derived from Illinois Supreme Court Rule 90(c)(4). Section 18.902(14) is derived from Rule 1613(b)(1) of the California Rules of Court. A summary of litigation experience of the expert is required to assist the evaluation of credibility. With respect to §§ 18.902(13) and 18.902(14) as applied to a treating or examining physician, see Reporter's Note to §§ 18.803(27) and 18.803(28) supra. Section 18.902(15) is derived from Rule 1613(b)(2) of the California Rules of Court. Section 18.902(16) is derived from Rule 1613(b)(3) of the California Rules of Court. Sections 18.902 (12)-(16) each provide that the adverse party may call the declarant of the hearsay statement, if available, as a witness and examine the witness as if under cross-examination. The proviso relating to the calling of witnesses is derived from Rule 1305(b) of the Pennsylvania Rules of Civil Procedure Governing Compulsory Arbitration. These rules take no position with respect to which party must initially bear the cost of lay witness and expert witness fees nor as to the ultimate disposition of such fees. Ordinarily, however, it is anticipated that the adverse party calling the witness should initially pay statutory witness fees, mileage, etc., and reasonable compensation to an expert witness in whatever sum and at such time as the judge may allow. Such witness fees, mileage, etc., and reasonable expert witness compensation should thereafter be charged to the same extent and in like manner as other such costs. See also §§ 18.803 (25)-(30) supra. Reporter's Note to § 18.1001 Section 18.1001(3) excludes prints made from X-ray film from the definition of an original. A print made from X-ray film is not felt to be equivalent to the X-ray film itself when employed for purposes of medical treatment or diagnosis. Reporter's Note to § 18.1101 Section 23(a) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 922, provides as follows: In making an investigation or inquiry or conducting a hearing the deputy commissioner or Board shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure, except as provided by this chapter; but may make such investigation or inquiry or conduct such hearing in such manner as to best ascertain the rights of the parties. Declarations of a deceased employee concerning the injury in respect of which the investigation or inquiry is being made or the hearing conducted shall be received in evidence and shall, if corroborated by other evidence, be sufficient to establish the injury. Other acts such as the Defense Base Act, 42 U.S.C. 1651, adopt section 23(a) of the Longshore and Harbor Workers' Compensation Act by reference. In addition 20 CFR 725.455(b) provides as follows with respect to the Black Lung Benefits Act, 30 U.S.C. 901: Evidence. Section 18.1101(c) provides that these rules do not apply to the extent inconsistent with, in conflict with, or to the extent a matter is otherwise specifically provided for by an Act of Congress or by a rule or regulation of specific application prescribed by the United States Department of Labor pursuant to statutory authority. Whether section 23(a) and § 725.455(b) are in fact incompatible with these rules, while unlikely for various reasons including their lack of specificity, is nevertheless arguable. Without regard to section 23(a) and § 725.455(b), various other considerations support the conclusion to exclude hearings under Longshore, Black Lung, and related acts from coverage of these rules at this time. Longshore, Black Lung, and related acts involve entitlements. Claimants in such hearings benefit from proceeding pursuant to the most liberal evidence rules that are consistent with the orderly administration of justice and the ascertainment of truth. Claimants in such hearings on occasion appear pro se. [55 FR 13229, Apr. 9, 1990; 55 FR 24227, June 15, 1990]

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