| (a) Parties to SOAH proceedings shall have reasonable
opportunity and methods of discovery as described in the APA, §164.005
and §164.007(d) of the Act, and SOAH rules.
(b) Testifying expert witnesses. Unless otherwise agreed
in writing by the parties or ordered by the ALJ, the Board shall file
a designation of testifying expert witnesses, if any, no later than
90 days before the end of the discovery period. Other parties shall
file a designation of testifying expert witnesses, if any, no later
than 45 days after the Board's designation or 60 days before the end
of the discovery period, whichever date is earlier. A party shall
not be allowed to present a testifying expert witness who has not
been timely designated, except by a pre-hearing order of the ALJ.
(1) A designation of testifying expert witnesses shall
include:
(A) the name, address, and telephone number of each
expert witness and, unless the party shows that the testifying expert
witness is not retained by, employed by, testifying as a courtesy,
or otherwise in the control of the party,
(B) a current curriculum vitae, résumé,
and bibliography of each expert witness.
(2) Unless a party shows that a testifying expert witness
is not retained by, employed by, testifying as a courtesy, or otherwise
in the control of the party, the party shall make the testifying expert
witness available for deposition reasonably promptly after the expert
witness is designated.
(c) Remedies and Sanctions. Upon the failure to comply
with a discovery request to the extent required by the APA, §164.005
of the Act, SOAH rules or SOAH Order, or as agreed to between the
parties in a discovery agreement, the presiding ALJ should, after
notice and hearing, make such orders in regard to the failure as are
just, and such orders may include one or more of the following:
(1) an order granting a continuance;
(2) an order limiting or restricting the admissibility
and use of evidence, to include exclusion of evidence or testimony;
(3) an order for payment by a party of the actual travel,
lodging, discovery expenses; hearing and court reporter costs; but
not attorney fees, incurred by an opposing party as a result of the
failure to comply with the discovery requirements;
(4) an order imposing a scheduling order providing
for discovery deadlines necessary to remedy the failure to comply
discovery requirements;
(5) an order for remedies and sanctions agreed to by
the parties in writing or on the record;
(6) an order disallowing further discovery of any kind
or of a particular kind by the offending party;
(7) an order holding that designated facts be considered
admitted for purposes of the proceeding;
(8) an order refusing to allow the offending party
to support or oppose a designated claim or defense or prohibiting
the party from introducing designated matters into evidence;
(9) an order disallowing in whole or in part requests
for relief by the offending party and excluding evidence in support
of those requests; or
(10) an order striking pleadings or testimony, or both,
in whole or in part.
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| Source Note: The provisions of this §187.28 adopted to be effective November 7, 2004, 29 TexReg 10113; amended to be effective January 25, 2006, 31 TexReg 394; amended to be effective January 4, 2007, 31 TexReg 10799; amended to be effective August 3, 2014, 39 TexReg 5749 |
