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 Code.

HISTORY

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, No. 28).

5. Amendment of subsections (a) and (b)-(e) filed 8-16-99; operative 9-15-99 (Register 99, No. 34).