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By Thomas C. Fitzhugh III, Fitzhugh & Elliott, P.C., Houston, Texas
The comment period for proposed new regulations for ALJ proceedings closed more than two years ago. For months we were promised that the new rules would be forthcoming “soon.” In May the final rules were published, and they became effective in June. While intended for all OALJ proceedings, they represent a significant change in pre-trial practice for longshore attorneys. Among these changes are changes to initial disclosures, changes to discovery, and enhanced requirements for expert testimony. The full regulations and discussion are found on the OALJ website at http://www.oalj.dol.gov/LIBRULES.HTM
In the docketing order, an ALJ may require parties to confer and submit a discovery plan upon notice of docketing by an ALJ. The ALJ can require this meeting to be in person, although most should occur by phone. Parties must submit a discovery plan within 14 days of the meeting. As with the Federal Rules of Civil Procedure, interrogatories are normally limited to 25 questions, and depositions are limited to seven (7) hours. Electronic filing of documents is permitted by ALJ order.
Within 21 days of a docketing notice from an ALJ, the parties must make initial disclosures, including expert witness information. Experts must now provide a report and include a list of all cases within the past four (4) years in which they have testified or given expert reports as well as disclose the cost of their work on the claim at issue. Parties have an ongoing duty to supplement disclosures as they obtain additional information.
Discovery can be done at any time by agreement of the parties. However, formal discovery cannot commence until receipt of the docketing (or similar) notice from an ALJ. This is a big change from prior practice, as it was possible to commence discovery upon receipt of the letter from a district director, OWCP, transmitting a claim to the OALJ for formal hearing.
Time limits are now computed as in the Federal Rules, and the “last day” for filing or doing any act is considered 4:30 p.m. where the act is to be done. This is a new provision for Longshore claims, as there has not been a time of day set for deadlines of any kind.
At least 30 days’ notice must be given prior to a medical examination, and depositions are generally to be taken only after giving 14 days notice to the other parties.
Formal hearings require personal attendance of witnesses within 100 miles of the hearing site, and use of a deposition of a lay witness cannot be substituted for live testimony unless (a) the parties agree, or (b) unavailability of the witness is proven. Expert depositions are allowed regardless of location.
Importantly, all deadlines and disclosure/discovery requests must be supplemented. A short summary of some of the major headings and requirements follow:
(Publisher’s Note: Citations link to Lexis Advance. If you subscribe to Lexis Advance, you can read the regulations.)
§ 18.10: Application – (a) If rules conflict with a governing statute or regulation, the latter controls. (c) Notice To All Parties: ALJ may waive, modify or suspend rules “when doing so will not prejudice a party and will serve the ends of justice.”
§ 18.13: Settlement Judge – Negotiations must be concluded within 60 days of appointment of settlement ALJ.
§ 18.22(b)(2): Representation – Non-attorneys may represent a subpoenaed witness or a party with ALJ’s approval.
§ 18.24: Amicus curiae – US or Agency (here, DOL) may file an amicus brief without consent of the parties or leave of the ALJ in any proceeding.
§ 18.30(b)(4): Electronic signing – ALJ may allow parties to file, sign, or verify papers by electronic means.
§ 18.32(a)(2): Computing time – “Last day” ends at 4:30 p.m. local time where event is to occur, unless different time set by statute, regulation or ALJ order.
§ 18.40(a): Notice of Hearing – Only requires 14-day notice. (LHWCA only requires 10!)
§ 18.50: Discovery – (a) Cannot begin discovery until ALJ issues initial notice or order, not, as was old practice, when case was referred for a formal hearing.
(a)(1)(ii) NO discovery until initial conference between parties held.
(c)(1)(i) Required disclosures: (A) name, address, and phone number of each individual “likely to have discoverable information;” (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; (C) A computation of each category of damages claimed by the disclosing party, and must make available for copying and inspection the documents upon which each computation is based, including materials bearing on the nature and extent of injuries suffered.
(c)(1)(iv) Disclosures must be made within 21 days after initial notice or order is entered by ALJ.
(c)(2) Disclosures of expert testimony include: (ii) for witness who submit a written report, (D) witness 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.
§ 18.53: Supplementing disclosures & responses – Parties MUST supplement discovery responses, and expert witnesses must supplement post-deposition information.
§ 18.54: Stipulation re depositions – Parties may stipulate that a deposition can be taken at ANY time (including before referral or notice of hearing).
§ 18.55: Use of depositions at hearings – Except for expert witnesses, use of depositions at the formal hearing may be subject to admissibility tests of “applicable rules of evidence,” meanings for lay witnesses, unavailability within 100 miles must be shown. Judge can allow depositions (but is not required to) on showing that all parties had notice and opportunity to attend the deposition. Deposition notice must give at least 14 days’ notice unless parties agree.
§ 18.57: Sanctions for failing to disclose or cooperate in discovery – ALJ allowed broad power including deeming facts be established, prohibiting submission of evidence to support or oppose claim, striking claims or defenses in whole or in part, staying proceedings, dismissing proceedings, or rendering default decision against disobedient party.
§ 18.60: Interrogatories – Limited to 25, including discrete subparts.
§ 18.62: Physical & mental exam – Must give 30 days notice.
§ 18.80: Prehearing statement – At least 21 days before the hearing, each party must file a prehearing statement.
§ 18.91: Post-hearing brief – ALJ may allow a post-hearing brief, but is not required to do so.
§ 18.93: Motion for Reconsideration – Must be filed within 10 days after service of decision on the moving party.
§ 18.94: Requests for ruling on motion for relief barred by pending petition of review. Once a petition for review is filed, ALJ loses jurisdiction to rule on otherwise timely motion.
© Copyright 2015 Fitzhugh & Elliott, P.C. All rights reserved. Reprinted by permission. This commentary appeared in the December 2015 issue of Benefits Review Board Service Longshore Reporter (LexisNexis).