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Chapter 3.3. Occupational Safety and Health Appeals Board
Article 3. Prehearing Procedure Discovery, and Motions
§372.6. Proceeding to Compel Discovery.
(a) A party claiming that its request for discovery pursuant to Sections 372 and
372.1 has not been complied with may serve and file with the Administrative Law
Judge or the Appeals Board, if the Appeals Board is hearing the case, a motion
to compel discovery naming as respondent the party refusing to comply. The motion
shall comply with Section 11507.7 of the Government Code and shall state:
(1) Facts showing that respondent refused or failed to comply with Section 372
or Section 372.1;
(2) A description of the matters sought to be discovered;
(3) The reason or reasons why such matter is discoverable under these rules; and
(4) A reasonable and good faith attempt to contact the respondent for an informal
resolution of the issue has been made; and
(5) The ground or grounds of respondent's refusal so far as known.
(b) The motion to compel discovery shall be served upon respondent and filed within
15 days after respondent first evidenced a refusal or failure to comply with Sections
372 and 372.1, or within 30 days after the discovery request was made and respondent
has failed to reply to the request, or within another time stipulated by the parties
with the approval of the Administrative Law Judge or the Appeals Board, whichever
period is longer. The motion shall comply with Section 371(a) and (b).
(c) The hearing on the motion to compel discovery shall be held within 15 days
after the motion is made, or a later time that the Administrative Law Judge or
the Appeals Board may, on its own motion for good cause determine. Respondent
shall have the right to serve and file a written answer or other response to the
motion before or at the time of hearing. The answer must comply with Section 371(a)
and (b). The hearing may be conducted by telephone or other electronic means as
provided in Government Code Section 11140.30. The parties may stipulate, with
the approval of the Administrative Law Judge or the Appeals Board, to waive a
hearing on the motion to compel discovery, provided that the stipulation provides
a date by which respondent shall file its response and requires that the order
on the motion shall issue within 30 days of the date the motion was filed.
(d) Where the matter sought to be discovered is under the custody or control of
respondent and respondent asserts that the matter is not a discoverable matter
under the provisions of Section 372.1(a) through (d), or is privileged against
disclosure under (f), the Administrative Law Judge or the Appeals Board may order
that the matter be lodged with it and examined in accordance with the provisions
of Subdivision (b) of Section 915 of the Evidence Code. The Administrative Law
Judge or the Appeals Board shall decide the motion based upon the matters examined
in camera, the papers filed by the parties, and such oral argument and additional
evidence as the Administrative Law Judge or the Appeals Board may allow.
(e) Unless otherwise stipulated by the parties with the approval of the Administrative
Law Judge or the Appeals Board, the Administrative Law Judge or the Appeals Board
shall, no later than 15 days after the hearing, issue a written order denying
or granting the motion. The Administrative Law Judge or the Appeals Board shall
promptly serve a copy of the order to each party or representative. Where the
order grants the motion, in whole or in part, the order shall set forth the matters
the moving party is entitled to discover under Sections 372 and 372.1. The order
shall not become effective until 10 days after the date the order is served. Where
the order denies the motion in its entirety, the order shall be effective on the
date it is served.
NOTE: Authority cited: Sections 148.7, 149.5 and 6603(a), Labor Code. Reference:
Section 11507.7, Government Code; and Sections 148.7, 149.5 and 6603(a), Labor
1. Amendment of subsection (b) filed 2-1-84; effective thirtieth day thereafter
(Register 84, No. 5).
2. Change without regulatory effect of subsection (a) and (b) filed 6-23-86;
effective thirtieth day thereafter (Register 86, No. 26).
3. Amendment filed 6-23-97; operative 7-1-97 (Register 97, No. 26). This interim
regulation is exempt from most of the procedural requirements of the Administrative
Procedure Act (specifically, from Articles 5 and 6 of Chapter 3.5, Division
3, Title 2, Government Code) and from review by the Office of Administrative
Law pursuant to Government Code sections 11400.20 and 11400.21 and will expire
on December 31, 1998, unless earlier terminated or replaced by, or readopted
as, permanent following the procedures of the Administrative Procedure Act.
4. Permanent adoption of amended section, including new subsection (a)(4), subsection
renumbering, and additional amendment of subsections (c) and (d), filed 7-11-97;
operative 7-11-97 pursuant to Government Code section 11343.4(d) (Register 97,
5. Amendment of subsections (a) and (b)-(e) filed 8-16-99; operative 9-15-99
(Register 99, No. 34).
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