49 CFR Part 1114 — Evidence; Discovery

PART 1114—EVIDENCE; DISCOVERY Authority: 5 U.S.C. 559; 49 U.S.C. 1321. Source: 47 FR 49562, Nov. 1, 1982, unless otherwise noted. Subpart A—General Rules of Evidence § 1114.1 Admissibility. Any evidence which is sufficiently reliable and probative to support a decision under the provisions of the Administrative Procedure Act, or which would be admissible under the general statutes of the United States, or under the rules of evidence governing proceedings in matters not involving trial by jury in the courts of the United States, will be admissible in hearings before the Board. The rules of evidence will be applied in any proceeding to the end that necessary and proper evidence will be conveniently, inexpensively, and speedily produced, while preserving the substantial rights of the parties. [47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996] § 1114.2 Official records. An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by a deputy, and accompanied with a certificate that such officer has the custody. If the office in which the record is kept is within the United States or within a territory or insular possession subject to the dominion of the United States, the certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office. If the office in which the record is kept is in a foreign state or country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by officer in the foreign service of the United States stationed in the foreign state or country in which the record is kept, and authenticated by the seal of his office. A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of this office contain no such record or entry. This section does not prevent the proof of official records or of entry or lack of entry therein or official notice thereof by a method authorized by any applicable statute or by the rules of evidence. § 1114.3 Admissibility of business records. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, will be admissible as evidence thereof if it appears that it was made in the regular course of business, and that it was the regular course of business to make such memorandum or record at the time such record was made, or within a reasonable time thereafter. § 1114.4 Documents in Board's files. If a party offers in evidence any matter contained in a report or other document open to public inspection in the files of the Board, such report or other document need not be made available at the hearing. [47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996] § 1114.5 Records in other Board proceedings. If any portion of the record before the Board in any proceeding other than the proceeding at issue is offered in evidence, a true copy will be presented for the record. [47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996] § 1114.6 Official notice of corroborative material. The Board or a hearing officer may take notice of official records, records in other Board proceedings, or other materials which are otherwise subject to specific rules governing admissibility regardless of compliance with the full technical provisions of such rules, where the admissibility of the evidence is for purposes of corroboration of testimony presented or to evaluate the credibility of testimony or allegations made in proceedings where the public interest is not otherwise adequately represented by counsel capable of fully complying with such rules. [47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996] § 1114.7 Exhibits. Whenever practical the sheets of each exhibit and the lines of each sheet should be numbered. If the exhibit consists of five or more sheets, the first sheet or title-page should be confined to a brief statement of what the exhibit purports to show with reference by sheet and line to illustrative or typical examples contained therein. The exhibit should bear an identifying number, letter, or short title which will readily distinguish it from other exhibits offered by the same party. It is desirable that, whenever practicable, evidence should be condensed into tables. Whenever practicable, especially in proceedings in which it is likely that many documents will be offered, all the documents produced by a single witness should be assembled and bound together, suitably arranged and indexed, so that they may be identified and offered as one exhibit. Exhibits should not be argumentative and should be limited to statements of facts, and be relevant and material to the issue, which can better be shown in that form than by oral testimony. [47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996] Subpart B—Discovery § 1114.21 Applicability; general provisions. (a) When discovery is available. (2) It is not grounds for objection that the information sought will be inadmissible as evidence if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. (3) In cases using the simplified standards Three-Benchmark method, the number of discovery requests that either party can submit is limited as set forth in §§ 1114.22, 1114.26, and 1114.30, absent advance authorization from the Board. (b) How discovery is obtained. (c) Protective conditions. (1) That the discovery not be had; (2) That the discovery may be had only on specified terms and conditions, including a designation of the time and place; (3) That the discovery may be had only upon such terms and conditions as the Board may impose to insure financial responsibility indemnifying the party or person against whom discovery is sought to cover the reasonable expenses incurred; (4) That the discovery may be had only by a method other than that selected by the party seeking discovery; (5) That certain matters not be inquired into or that the scope of discovery be limited to certain matters; (6) That discovery be conducted with no one present except persons designated in the protective order; (7) That a deposition after being sealed be opened only by order of the Board; (8) That a trade secret or other confidential research development or commercial information not be disclosed or be disclosed only in a designated way; and (9) That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened only upon direction or order of the Board. If the motion for a protective order is denied in whole or in part, the Board may, on such terms and conditions as it deems just, enter an order requiring any party or person to provide or permit discovery. A protective order under this paragraph may only be sought after, or in conjunction with, an effort by any party to obtain relief under § 1114.24(a), § 1114.26(a), or § 1114.31. (d) Sequence and timing of discovery. (e) Stipulations regarding discovery. (1) Provide that depositions be taken before any person, at any time or place, upon sufficient notice, and in any manner and when so taken may be used like other depositions; and (2) Modify the procedures provided by these rules for other methods of discovery. (f) Service of discovery materials. [47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996; 72 FR 51377, Sept. 7, 2007; 81 FR 8854, Feb. 23, 2016; 82 FR 57381, Dec. 5, 2017; 88 FR 319, Jan. 4, 2023; 90 FR 24080, June 6, 2025] § 1114.22 Deposition. (a) Purpose. (b) Request. (1) Should notify all parties to the proceeding and the person sought to be deposed; and (2) Should set forth the name and address of the witness, the place where, the time when, the name and office of the officer before whom, and the cause or reason why such deposition will be taken. (c) Limitation under simplified standards. [61 FR 52713, Oct. 8, 1996, as amended at 72 FR 51377, Sept. 7, 2007] § 1114.23 Depositions; location, officer, time, fees, absence, disqualification. (a) Where deposition should be taken. (b) Officer before whom taken. (c) Fees. (d) Failure to attend or to serve subpoena; expenses. (2) If the party who filed a petition for discovery fails to serve a subpoena upon the witness and the witness because of such failure does not attend, and if another party attends in person or by representative because he expects the deposition of the witness to be taken, the Board may order the party who filed the petition to pay to such other party the reasonable expenses incurred by him and his representative in so attending, including reasonable attorney's fees. (e) Disqualification for interest. [47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996] § 1114.24 Depositions; procedures. (a) Examination. (b) Use of depositions. (1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. (2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated to testify on behalf of a public or private corporation, partnership, association or governmental agency (other than this Board, except in those instances where the Board itself is a party to the proceeding) which is a party, may be used by an adverse party for any purpose. (3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the presiding officer or Board finds: (i) That the witness is dead; or (ii) That the witness is at a greater distance than 100 miles from the place of hearing or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition; or (iii) That the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or (iv) That the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (v) Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witness orally at public hearing, to allow the deposition to be used. (4) If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts. Substitution of parties does not affect the right to use depositions previously taken. (c) Effect of taking or using depositions. (d) Motions to protect. (e) Recordation. (f) Signing. (g) Attestation. (h) Return. (i) Notice. (j) Copies. [47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996; 74 FR 52908, Oct. 15, 2009; 81 FR 8854, Feb. 23, 2016; 88 FR 319, Jan. 4, 2023; 91 FR 4854, Feb. 3, 2026] § 1114.25 Effect of errors and irregularities in depositions. (a) As to disqualification of officer. (b) As to taking of deposition. (2) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless reasonable objection thereto is made at the taking of the deposition. (c) As to completion and return of deposition. [47 FR 49562, Nov. 1, 1982, as amended at 81 FR 8854, Feb. 23, 2016] § 1114.26 Written interrogatories to parties. (a) Availability; procedures for use. (b) Option to produce business records. (c) Service of interrogatories in those proceedings not requiring a petition. (d) Limitation under simplified standards. [47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996; 72 FR 51377, Sept. 7, 2007; 81 FR 8855, Feb. 23, 2016] § 1114.27 Request for admission. (a) Availability; procedures for use. (b) Effect of admission. (c) Service of written requests for admission in those proceedings not requiring a petition. [47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996; 81 FR 8855, Feb. 23, 2016] § 1114.28 Depositions, requests for admission, written interrogatories, and responses thereto: inclusion in record. At the oral hearing, or upon the submission of statements under the modified procedure, depositions, requests for admission and written interrogatories, and respective responses may be offered in evidence by the party at whose instance they were taken. If not offered by such party, they may be offered in whole or in part by any other party. If only part of a deposition, request for admission or written interrogatory, or response thereto is offered in evidence by a party, any other party (where the matter is being heard orally) may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts. Such depositions, requests for admission and written interrogatories, and responses thereto should be admissible in evidence subject to such objections as to competency of the witness, or competency, relevancy, or materiality of the testimony as were noted at the time of their taking or are made at the time they are offered in evidence. § 1114.29 Supplementation of responses. A party who has responded to a request for discovery with a response that was complete when made is under a duty to supplement his response to include information thereafter acquired in the following instances: (a) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to: (1) The identity and locations of persons having knowledge of discoverable matters, and (2) The identity of each person expected to be called as an expert witness at the hearing, the subject matter on which he is expected to testify, and the substance of his testimony. (b) A party who knows or later learns that his response is incorrect is under a duty seasonably to correct his response. (c) A duty to supplement responses may be imposed by order, agreement of the parties, or at any time prior to the hearing or the submission of verified statements under the modified procedure through new requests for supplementation of prior responses. § 1114.30 Production of documents and records and entry upon land for inspection and other purposes. (a) Scope. (1) To produce and permit the party making the request to inspect any designated documents (including writings, drawings, graphs, charts, photographs, phonograph records, tapes, and other data compilations from which information can be obtained, translated, if necessary, with or without the use of detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which are in the possession, custody, or control of the party upon whom the request is served, but if the writings or data compilations include privileged or proprietary information or information the disclosure of which is proscribed by the Act, such writings or data compilations need not be produced under this rule but may be provided pursuant to § 1114.26(b) of this part; or (2) To permit, subject to appropriate liability releases and safety and operating considerations, entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspecting and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon. (b) Procedure. (c) Limitation under simplified standards. (d) Agreements containing interchange commitments. [61 FR 52713, Oct. 8, 1996, as amended at 72 FR 51377, Sept. 7, 2007; 73 FR 31034, May 30, 2008] § 1114.31 Failure to respond to discovery. (a) Failure to answer. (1) Reply to motion to compel generally. (2) Motions to compel in stand-alone cost and simplified standards rate cases. (ii) In a rate case to be considered under the stand-alone cost or simplified standards methodologies, a reply to a motion to compel must be filed with the Board within 10 days of when the motion to compel is filed. (3) Conference with parties on motion to compel. (4) Ruling on motion to compel in stand-alone cost and simplified standards rate cases. (b) Failure to comply with order. (2) If any party or an officer, director, managing agent, or employee of a party or person refuses to obey an order made under paragraph (a) of this section requiring him to answer designated questions, or an order made under § 1114.30 requiring him to produce any document or other thing for inspection, copying, testing, sampling, or photographing or to permit it to be done, or to permit entry upon land or other property, the Board may make such orders in regard to the refusal as are just, and among others the following: (i) An order that the matters regarding which questions were asked, or the character or description of the thing or land, or the contents of the paper, or any other designated facts should be taken to be established for the purposes of the proceeding in accordance with the claim of the party obtaining the order: (ii) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing in evidence designated documents or things or items of testimony: (iii) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the proceedings or any party thereof. (iv) In lieu of any of the foregoing orders, or in addition thereto, the Board shall require the party failing to obey the order or the attorney advising that party, or both, to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the Board finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. (c) Expenses on refusal to admit. (d) Failure of party to attend or serve answers. (e) Expenses against United States. [47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996; 68 FR 17313, Apr. 9, 2003; 69 FR 58366, Sept. 30, 2004; 72 FR 51377, Sept. 7, 2007; 74 FR 52908, Oct. 15, 2009; 82 FR 57381, Dec. 5, 2017; 83 FR 15079, Apr. 9, 2018; 88 FR 319, Jan. 4, 2023; 90 FR 24080, June 6, 2025; 91 FR 4854, Feb. 3, 2026]

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