SECTION 1.86. Discovery Orders

(a) Commission to take deposition. The hearings officer is authorized to issue a commission to take deposition, which shall authorize the issuance of any subpoenas necessary to require that the witness appear and produce, at the time the deposition is taken, books, records, papers, or other objects that may be necessary and proper for the purposes of the proceeding.

(b) Other discovery orders. The hearings officer may issue protective orders and orders compelling discovery responses. Requests for orders compelling discovery shall contain a statement that, after due diligence, the desired information cannot be obtained through informal means, good faith efforts at negotiation have failed to produce the requested discovery, and that good cause exists for requiring discovery. The hearings officer may conduct in camera inspections of materials when requested by a party or when necessary to determine facts required to issue appropriate discovery orders, including protective orders. The request for a discovery order may be denied if the request is untimely or unduly burdensome in light of the complexity of the proceeding, if the requesting party has failed to exercise due diligence, if the discovery would result in undue cost to the parties or unnecessary delay in the proceeding, or for other good cause in the interest of justice.

(c) Sanctions. After notice and opportunity for hearing, an order imposing sanctions, as are just, may be issued by the commissioner or the hearings officer for failure to comply with a discovery order, or subpoena issued pursuant to a commission for deposition or production of books, records, papers, or other objects. The order imposing sanctions may:

(1) disallow any further discovery of any kind or of a particular kind by the disobedient party;

(2) require the party, the party's representative, or both to obey the discovery order;

(3) require the party, the party's representative, or both to pay reasonable expenses, including attorney fees, incurred by reason of the party's noncompliance;

(4) direct that the matters regarding which the discovery order was made shall be deemed established in accordance with the claim of the party obtaining the order;

(5) refuse to allow the disobedient party to support or oppose designated claims or defenses or prohibit the party from introducing designated matters into evidence;

(6) strike pleadings or parts thereof or abate further proceedings until the order is obeyed; or, if entered by the commissioner;

(7) dismiss the action or proceeding or any part thereof or render a decision by default against the disobedient party.

(d) Appellate review. Any discovery order or subpoena and any order imposing sanctions issued by the hearings officer is subject to review by an appeal to the commissioner or the board, according to the stage of the action or proceeding. The appeal shall be filed with the commissioner or board within five days of the action that is the subject of the appeal. The appeal may be carried with the underlying case provided the commissioner does not act upon the appeal within 15 days after the appeal was filed.

Source Note: The provisions of this §1.86 adopted to be effective May 21, 1993, 18 TexReg 2954.