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dure Act, and agency rules, it is usually beneficial for the Judge to establish special procedural rules for the individual case, dealing with such problems as order of presentation, motions, 21 and cross-examination.22 These may be adaptations of rules commonly used by the agency's corps of Judges or they may be tailor-made for a particular case.2 Such rules may be unnecessary in relatively simple cases with experienced counsel.
9. Place of Hearing - If the place of hearing may be set by the Judge and a field hearing is requested, he should hear discussion on the point and announce the time and place of hearing either at the conference or in his report.
F. Conference Report A conference report consisting of a list of appearances, agreements reached, the Judge's rulings, and other matters decided should be prepared and served on all persons who entered appearances.24 In some agencies, the practice is to use the transcript of the prehearing conference as the conference report.
Any interested person should be permitted to file objections, which should be limited to errors of substance. Further argument of a point decided at the conference should not be considered. The Judge should deny the objections, or make modifications or corrections, in a supplemental report. Of course the report does not absolutely commit the Judge to the prescribed procedures; he may modify them later as justice may require.
20 See, p. 22 infra.
Appendix 5 is a sample report of a prehearing conference.
The report should include recommendations on any issues required to be referred to the agency. If they are not accepted, the Judge must decide whether the agency's changes are so substantial as to require a further conference or other action. Often he can make the necessary changes by a supplemental report.
G. Preliminary Motions and Rulings All motions within his jurisdiction should be addressed to the Judge. He should decide promptly. Unless his ruling is self-explanatory or the affirmance of a prior ruling, it should include a statement of the grounds.
Many motions, petitions, and requests may be disposed of without a formal order; a notice, letter, or other written communication which advises all interested persons of the disposition and the reasons is sufficient.
H. Other Prehearing Procedures A prehearing conference is not appropriate for every case. If the issues are simple and the parties few, it may be unnecessary; if the proceeding is to be held in the field, it may be inconvenient; and if the credibility of the witnesses will be at issue (as in enforcement proceedings), it may be unproductive.
When a conference is not feasible or desirable, other procedures to organize and expedite the proceeding are available. For example, the Judge may advise the parties by written notice on procedural matters and suggest the type of evidence needed. He may even direct them to submit prior to the hearing such material as a list of witnesses, a description of
Appendix 6 is a sample interlocutory order. 26 Appendix 7 is a sample prehearing instructions to the parties.
the documents to be offered in evidence, and proposed stipulations. If a prehearing conference is not held, the Judge should at least consult with counsel before officially opening the hearing, to discuss and decide on hearing procedures. This occurs frequently at the National Labor Relations Board and the Interstate Commerce Commission where the customary field hearing makes an earlier conference inconvenient.27
The Court of Claims has adopted a procedure by which information is developed by parties before the hearing without a prehearing conference. This procedure, which is described in the Court of Claims forms set forth in the Appendix,28 would appear to be readily adaptable to many administrative proceedings.
27 See p. 78 infra. 28 See Appendix 17.
If authorized by statute and agency rule, the Judge may require the parties to submit to discovery. This may consist of subpoenas ad testificandum and duces tecum, depositions, written interrogatories, inspections, examinations, requests for admissions, the production of documents or things, or the preparation of studies, summaries, forecasts, surveys, polls, and other relevant materials. Discovery rulings should be made at the prehearing conference if the Judge finds it necessary to apply compulsion to obtain the necessary information. Subsequent developments may require supplemental discovery orders.
In some agencies, the Judge must issue a subpoena upon request, subject to a motion to quash.90 In other agencies, the Judge has discretion to decline to issue a subpoena absent a showing of relevance and need. In either case the subpoena is granted ex parte and its signing is not disclosed until service or disclosure by the party who obtained the subpoena. Otherwise, possibilities for evading service are increased.
Even though the witness is compensated for his travel expenses and receives some compensation for his time, requiring him to leave his home area may constitute a severe hardship. Furthermore, subpoenas duces tecum may compel the transporation of documents of substantial weight and volume and may deprive a business of records and files needed for its daily operation. These inconveniences should not be lightly imposed. The Judge may in appropriate cases shift some of these burdens to the party seeking documents by permitting him to inspect and copy them only on the premises where they are regularly kept.
29 See also Recommendations 70-4, Discovery in Agency Adjudication, 1 C.F.R. & 305.70-4 (1974).
30 See, e.g., CAB, 14 C.F.R. 88 302.19(a)-(f) (1973).
31 See, 2.8., SEC, 17 C.F.R. § 201.14(b) (1) (1973) and FCC, 47 C.F.R. 8 1.333 (c) (1972).
Sometimes subpoenas will be requested for material the Judge has previously ruled need not be produced. If the Judge notices this, he should deny the request unless there is some reason to change the earlier ruling. It is not worthwhile, however, to search the record of a lengthy prehearing conference or hearing merely to determine whether the matter has already been considered. The subpoenaed witness can always move to quash on that ground.
B. Testimony of Agency Personnel and
Production of Agency Documents Testimony of agency staff and the production of documents in agency custody must sometimes be restricted in order to protect the agency's investigative or decisional processes. To insure such protection some agencies provide special procedures applicable to such requests for discovery, such as the requirement that they be referred to the agency either initially or upon interlocutory appeal by the agency staff.92 The Judge should assure that these procedures are not used frivolously or for clearly improper purposes.
32 See, e.8., FTC, 16 C.F.R. 8 8 3.23 (a), 3.36 (1973). 33 See Domestic Cargo-Mail Service Case, 30 C.A.B. 560, 561 (1960).