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IV. DISCOVERY, PRETRIAL AND DEPOSITIONS

RULE 26. CALLS ON GOVERNMENT DEPARTMENTS OR AGENCIES

(a) By the Court on its Own Motion: On its own motion the Court may at any time call upon any department or agency of the United States for any information or papers it deems

necessary.

(b) Motion by Plaintiffs: A motion for call may be filed by plaintiff at any time after the expiration of the time within which defendant is required to file its answer, except that plaintiff may file such a motion at any time after the filing of the petition in the circumstances provided for in Rule 13.

Every such motion shall show with reasonable particularity (1) the papers, documents, or information desired; (2) what is sought to be pleaded or proved thereby; and (3) how or in what respect they are relevant and material to the issues of the case. Such motion shall also state that such papers, documents, and information are not in possession of plaintiff.

Papers and documents shall be deemed to be defined with reasonable particularity to the extent that each such paper or document is so identified that its extraction from the files of the department or agency is a clerical function.

If information is desired concerning (1) the existence or identity of any paper or document not identified as above, (2) relevant facts believed to be within the knowledge of the department or agency, its officers or employees, or (3) the identity and location of persons having knowledge of relevant facts, the motion shall contain specific questions in the form of written interrogatories which the Court may address to the head of the department or agency to elicit such information.

(c) Use of Replies to Calls: Papers, documents, and information furnished by any department or agency in response to a call shall be filed with the Clerk but shall not become evidence in a

case until offered by a party and received in response thereto or unless included by express direction of the Court or the Commissioner. The introduction of such papers, documents, and information shall be subject to the same objections by any party as might be made to the introduction of other evidence.

(d) Calls by Third-Party Plaintiffs: The procedure provided by this rule for calls by plaintiff shall be available to any thirdparty plaintiff.

RULE 27. CALLS ON PARTIES PLAINTIFF

(a) Motion by Defendant: A motion for call upon any party plaintiff for books, papers, documents, or information may be filed by defendant at any time after the filing of plaintiff's petition.

Every such motion shall show with reasonable particularity (1) the books, papers, documents, or information desired; (2) what is sought to be pleaded or proved thereby; and (3) how and in what respect they are relevant and material to the issues of the case. Such motion shall also state that such books, papers, documents, and information are not in possession of defendant.

Books, papers, and documents shall be deemed to be defined with reasonable particularity to the extent that each such book, paper, or document is so identified that its extraction from the files of the plaintiff is a clerical function.

If information is desired concerning (1) the existence or identity of any book, paper, or document not identified as above, (2) relevant facts believed to be within the knowledge of the plaintiff, his or its officers or employees, or (3) the identity and location of persons having knowledge of relevant facts, the motion shall contain specific questions in the form of written interrogatories which the Court may address to the plaintiff to elicit such information.

(b) Replies to Calls: Any party plaintiff upon whom a call is made pursuant to subsection (a) of this rule shall reply with answers responsive to the questions propounded and by produc

tion of any books, papers, or documents demanded and identified, except that in lieu of filing such books, papers, or documents with the Clerk the plaintiff may tender to defendant reasonable opportunity to examine such books, papers, or documents at the place where custody thereof is customarily maintained.

(c) Use of Replies: The reply furnished by any plaintiff in response to a call shall be filed with the Clerk but shall not become evidence in a case until offered by a party and received in response thereto or unless included by express direction of the Court or the Commissioner. The introduction of such replies shall be subject to the same objections by any party as might be made to the introduction of other evidence.

(d) Calls by Third-Party Defendants: The procedure outlined by this rule for calls by defendant shall be available to any third-party defendant.

RULE 28. REFUSAL TO REPLY; CONSEQUENCES

(a) Failure to Produce Books, Papers or Documents: If any book, paper, or document, called for and not produced, is thereafter offered in evidence by the party to whom the call was directed, the Court or the Commissioner may deny the offer.

(b) Refusal of Plaintiff to Reply to Call: If any plaintiff to whom a call has been directed shall refuse to reply thereto in whole or in material part, the Court or the Commissioner may order that the case shall not proceed until the call has been fully answered.

RULE 29. PRETRIAL PROCEDURE

(a) Conferences: In any action, the Commissioner to whom the case is referred may in his discretion direct the attorneys for the parties to appear before him to consider

(1) The simplification of the issues;

(2) The necessity or desirability of amendments to the pleadings;

(3) The possibility of avoiding unnecessary proof (a) by admissions of fact and (b) by the reception of documents in evidence;

(4) The limitation of the number of expert witnesses;

(5) Such other matters as may aid in the disposition of the action.

(b) Submission of Statements Looking Toward Stipulation: The Commissioner may, in lieu of or in addition to the procedure provided in (a) above, direct a party to submit within a fixed time to the other party a statement of the facts, properly separated and numbered, which such party considers to be not subject to controversy. The adverse party shall submit his written response thereto within a reasonable time fixed by the Commissioner, agreeing to the separate items of fact or setting forth a statement modifying or rejecting the same. If the rejection is based upon lack of information, the response shall so state. his response the responding party may expressly reserve an objection on the grounds of immateriality or irrelevancy to any fact agreed to or modified. In all instances copies of the statements and responses shall be furnished to the Commissioner.

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Any fact not so rejected or modified shall be deemed admitted, and the failure of either party to file within the time specified by the Commissioner, a response to such proposed agreed statement shall be taken as an admission of all of the facts set forth therein, provided that when justice requires the Commissioner shall permit a response to be made after the expiration of the time specified or proof in relation thereto to be adduced at the time of the trial.

(c) Examination of Books and Records: Where the claim of either party is based in any part on books of account or other records, the Commissioner may in advance of the trial require the party whose claim is so based to furnish to the adverse party a statement showing the items and figures intended to be proved, with adequate reference to the books or records from which such figures were taken. The Commissioner may then require the

party asserting such claim to make all books and records pertinent or material to the claim or any part thereof available for examination by the adverse party in advance of the trial and fix a reasonable time for such examination.

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If, as a result of such examination, such adverse party finds that the claimant's books and records do not support the figures contained in the statement submitted by him, or if such adverse party arrives at results and figures different from those contained in the claimant's statement, such adverse party shall, within the time fixed by the Commissioner, furnish the claimant with a schedule or schedules showing the results of such examination, with specific references to the books and records from which such figures were taken.

(d) Taking of Evidence: After the matters referred to in (a), (b), and (c) above have been disposed of, the Commissioner shall proceed with the taking of such evidence as is necessary to close proof. Whenever practicable, such proof shall be taken in one continuous session or a series of consecutive sessions with a view to avoiding unnecessary intervening delays.

(e) Incorporation of Pretrial Proceedings Into Record: The Commissioner may make a memorandum reciting the action taken pursuant to the provisions of (a), (b), and (c) above, and when such memorandum is made a copy thereof shall be furnished to each party. Except when otherwise modified by the Commissioner or by the Court, on timely application by either party, such memorandum shall control the subsequent course of the trial. The memorandum shall be filed with the Clerk and become a part of the record.

(f) Noncompliance by Party: In the event either of the parties fails or refuses to comply with the provisions of this rule, such matters shall be reported by the Commissioner to the Court for appropriate action.

(g) Rule to Be Liberally Construed: This rule shall be construed liberally to afford the parties a reasonable opportunity for reaching an agreement on undisputed facts and to expedite

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