tent and upon such terms as are provided by law or as otherwise may be deemed proper.

§ 3.15 Amendments and supplemental

pleadings.

(a) Amendments-(1) By leave. If and whenever determination of a controversy on the merits will be facilitated thereby, the hearing examiner may, upon such conditions as are necessary to avoid prejudicing the public interest and the rights of the parties, allow appropriate amendments to pleadings or notice of hearing: Provided, however, That a motion for amendment of a complaint or notice may be allowed by the hearing examiner only if the amendment is reasonably within the scope of the original complaint or notice. Motions for other amendments of complaints or notices shall be certified to the Commission.

(2) Conformance to evidence. When issues not raised by the pleadings or notice of hearing but reasonably within the scope of the original complaint or notice of hearing are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings or notice of hearing; and such amendments of the pleadings or notice as may be necessary to make them conform to the evidence and to raise such issues shall be allowed at any time.

(b) Supplemental pleadings. The hearing examiner may, upon reasonable notice and such terms as are just, permit service of a supplemental pleading or notice setting forth transactions, occurrences, or events which have happened since the date of the pleading or notice sought to be supplemented and which are relevant to any of the issues involved. Subpart C-Prehearing Procedures; Motions; Interlocutory Appeals

§ 3.21 Prehearing conferences.

(a) When appropriate. The hearing examiner in any case may, and upon motion of any party or where it appears probable that the hearing will extend for more than five (5) days he shall, direct counsel for all parties to meet with him for a conference to consider any or all of the following:

(1) Simplification and clarification of the issues;

(2) Necessity or desirability of amendments to pleadings, subject, however, to the provisions of §3.15;

(3) Stipulations, admissions of fact and of the contents and authenticity of documents;

(4) Expedition in the discovery and presentation of evidence, including, but not limited to, restriction of the number of expert, economic, or technical witnesses;

(5) Matters of which official notice will be taken and matters which may be resolved by reliance upon trade regulation rules pursuant to § 1.12(c) of this chapter; and

(6) Such other matters as may aid in the orderly and expeditious disposition of the proceeding, including disclosure of the names of witnesses and of documents or other physical exhibits which will be introduced in evidence in the course of the proceeding.

(b) Subpoenas. Prehearing conferences may be convened for the purpose of accepting returns on subpoenas duces tecum issued pursuant to the provisions of § 3.34(b).

(c) Reporting. Prehearing conferences, in the discretion of the hearing examiner, need not be stenographically reported as provided in § 3.44(b), and whether reported or not shall not be public unless all parties so agree.

(d) Order. The hearing examiner shall enter in the record an order which recites the results of the conference. Such order shall include the hearing examiner's rulings upon matters considered at the conference, together with appropriate directions to the parties. The hearing examiner's order shall control the subsequent course of the proceeding, unless modified to prevent manifest injustice. § 3.22

Motions.

(a) Presentation and disposition. During the time a proceeding is before a hearing examiner, all motions therein, except those filed under § 3.42(g), shall be addressed to the hearing examiner, and if within his authority shall be ruled upon by him. Any motion upon which the hearing examiner has no authority to rule shall be certified by him to the Commission with his recommendation. All written motions shall be filed with the Secretary of the Commission and all motions addressed to the Commission shall be in writing.

(b) Content. All written motions shall state the particular order, ruling, or action desired and the grounds therefor.

(c) Answers. Within ten (10) days after service of any written motion, or

within such longer or shorter time as may be designated by the hearing examiner or the Commission, the opposing party shall answer or shall be deemed to have consented to the granting of the relief asked for in the motion. The moving party shall have no right to reply, except as permitted by the hearing examiner or the Commission.

(d) Motions for extensions. As a matter of discretion, the hearing examiner or the Commission may waive the requirements of this section as to motions for extensions of time, and may rule upon such motions ex parte.

(e) Rulings on motions for dismissal. When a motion to dismiss a complaint or for other relief is granted with the result that the proceeding before the hearing examiner is terminated, the hearing examiner shall file an initial decision in accordance with the provisions of § 3.51. If such a motion is granted as to all charges of the complaint in regard to some, but not all, of the respondents, or is granted as to any part of the charges in regard to any or all of the respondents, the hearing examiner shall enter his ruling on the record and take it into account in his initial decision. When a moton to dismiss is made at the close of the evidence offered in support of the complaint based upon an alleged failure to establish a prima facie case, the hearing examiner may, if he so elects, defer ruling thereon until the close of the case for the reception of evidence.

§ 3.23 Interlocutory appeals.

(a) Request for permission. Except as provided in §§ 3.35(b) and 3.42(d), interlocutory appeals from rulings of a hearing examiner may be filed only after permission is first obtained from the Commission. Any request for such permission shall be in writing, not to exceed ten (10) pages in length, and shall be filed within five (5) days after notice of the ruling complained of. Permission will not be granted except upon a showing that the ruling complained of involves substantial rights and will materially affect the final decision, and that a determination of its correctness before conclusion of the hearing is essential to serve the interests of justice.

(b) Form of appeal. Interlocutory appeals shall be in the form of a brief, not to exceed thirty (30) pages in length, and shall be filed within five (5) days after notice of permission to file. An

swer thereto may be filed within five (5) days after service of the appeal brief. The appeal shall not operate to suspend the hearing unless otherwise ordered by the hearing examiner or the Commission. Subpart D-Discovery; Compulsory Process

§ 3.31 Admissions as to facts and docu

ments.

(a) At any time after answer has been filed or after publication of notice of an adjudicative hearing in a rulemaking proceeding under §3.13, any party may serve upon any other party a written request for the admission of the genuineness of any relevant documents described therein, or the admission of the truth of any relevant matters of fact set forth in such request. A copy of any such request shall be filed with the Secretary of the Commission. Copies of the documents described shall be delivered with the request unless copies have already been furnished or are known to be and in the request are stated as being in the possession of the other party.

(b) Each requested admission shall be deemed made unless, within ten (10) days after service of the request, or within such shorter or longer time as the hearing examiner may allow, the party so served serves upon the party making the request, with a copy to the Secretary of the Commission, either (1) a sworn statement denying specifically the relevant matters of which an admission is requested or setting forth in detail the reasons why he can neither truthfully admit nor deny them, or (2) written objections on the ground that some or all of the matters involved are privileged or irrelevant or that the request is otherwise improper in whole or in part, together with a copy of a request to the hearing examiner for a hearing on the objections at the earliest practicable time. Answers on matters to which such objections are made may be deferred until the objections are determined, but if written objections are made to only a part of a request, the remainder of the request shall be answered within the period designated.

(c) Admissions obtained pursuant to this procedure may be used in evidence to the same extent and subject to the same objections as other admissions. § 3.32 Orders requiring access.

Application for issuance of an order requiring any corporation. being pro

ceeded against to grant access to files for the purpose of examination and the right to copy documentary evidence shall be made in writing to the hearing examiner, and shall specify as exactly as possible the files to which access is requested, showing the general relevancy of the files and the reasonableness of the scope of the proposed order. Any motion to limit or quash an order requiring such access shall be filed within ten (10) days after service thereof, or, if the date for compliance is less than ten (10) days after service of the order, within such other time as the hearing examiner may allow. § 3.33

Depositions.

(a) When justified. At any time during the course of a proceeding, whether or not issue has been joined, the hearing examiner, in his discretion, may order the taking of a deposition and the production of documents by the deponent. Such order may be entered upon a showing that the deposition is necessary for purposes of discovery, and that such discovery could not be accomplished by voluntary methods. Such order may also be entered in extraordinary circumstances to preserve relevant evidence upon a showing that there is substantial reason to believe that such evidence could not be presented through a witness at the hearing. Insofar as consistent with considerations of fairness and the requirements of due process and the rules in this part, a deposition should not be ordered when it appears that it will result in undue burden to any other party or in undue delay of the proceeding, and it should not be ordered to obtain evidence from a person relating to matters with regard to which he is expected to testify at the hearing, or to obtain evidence which there is reason to believe can be presented at a hearing without the need for deposition, or to circumvent the orderly presentation of evidence at the hearing. Depositions may be taken orally

or

upon written interrogatories and cross-interrogatories before any person having power to administer oaths who may be designated by the hearing examiner.

(b) Form of application. Any party desiring to take a deposition shall make application in writing to the hearing examiner, setting forth the justification therefor, the time when, the place where, and the name and address of the officer before whom the deposition is desired.

The application shall include also the name and address of each proposed deponent and the subject matter concerning which each is expected to depose, and shall be accompanied by an application for any subpoenas desired.

(c) Ruling on application. Such order as the hearing examiner may issue for taking a deposition shall state the circumstances warranting its being taken, and shall designate the time when, the place where, and the officer before whom it will be taken, and shall show the name and address of each person who is expected to appear and the subject matter with regard to which each is expected to depose. The time designated shall allow not less than five (5) days from date of service of the order when the deposition is to be taken within the United States, and not less than fifteen (15) days when the deposition is to be taken elsewhere.

(d) Modification of ruling. After an order is served for taking a deposition, upon motion timely made by any party or by the person to be deposed and for good cause shown, the hearing examiner may order that the deposition shall not be taken, or that it may be taken only at some designated place other than that stated in the order, or that it may be taken only on written interrogatories, or that certain matters shall not be inquired into, or that the scope of the examination shall be limited to certain matters, or that the examination shall be held with no one present except the parties to the action and their officers or counsel, or that trade secrets or names of customers need not be disclosed; or the hearing examiner may make any other order which justice requires to protect the party or deponent from annoyance, embarrassment, or oppression, or to prevent the unnecessary disclosure or publication of information contrary to the public interest and beyond the requirements of justice in the particular proceeding.

(e) Taking of deposition. Each deponent shall be duly sworn, and any adverse party shall have the right to crossexamine. Objections to questions or documents shall be in short form, stating the grounds of objections relied upon. The questions propounded and the answers thereto, together with all objections made (but not including argument or debate), shall be reduced to writing and certified by the officer before whom the deposition was taken. Thereafter, the officer shall forward the deposition and one (1) copy thereof to the party at whose instance

the deposition was taken, and shall forward one (1) copy thereof to the representative of each other party who was present or represented at the taking of the deposition.

(f) Deposition to preserve evidence. (1) A deposition taken to preserve relevant evidence which any party intends to offer in evidence may be corrected in the manner provided by § 3.44 (b). Any such deposition shall, in addition to the other required procedures, be read to or by the deponent and subscribed by him if the party intending to offer it in evidence so notifies the officer before whom the deposition was taken.

(2) Subject to appropriate rulings on such objections to the questions and answers as were noted at the time the deposition was taken or as may be valid when it is offered, a deposition taken to preserve relevant evidence, or any part thereof, may be used or offered in evidence as against any party who was present or represented at the taking of the deposition or who had due notice thereof, if the hearing examiner finds: (i) That the deponent is dead; or (ii) that the deponent is out of the United States or is located at such a distance that his attendance would be impractical, unless it appears that the absence of the deponent was procured by the party offering the deposition; or (iii) that the deponent is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (iv) that the party offering the deposition has been unable to procure the attendance of the deponent by subpoena; or (v) that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open hearing, to allow the deposition to be used.

[32 F.R. 8449, June 13, 1967; 32 F.R. 9158, June 28, 1967]

§ 3.34 Subpoenas.

(a) Subpoenas ad testificandum. Application for issuance of a subpoena requiring a person to appear and depose or testify (other than as provided in §§ 3.36 and 3.37) at the taking of a deposition or at an adjudicative hearing shall be made to the hearing examiner.

(b) Subpoenas duces tecum. (1) Application for issuance of a subpoena requiring a person to appear and depose or testify and to produce specified documents (other than as provided in §§ 3.36

and 3.37) at the taking of a deposition, or at a prehearing conference, or at an adjudicative hearing shall be made in writing to the hearing examiner, and shall specify as exactly as possible the documents to be produced, showing the general relevancy of the documents and the reasonableness of the scope of the subpoena. Any motion to limit or quash such subpoena shall be filed within ten (10) days after service thereof, or if the return date is less than ten (10) days after service of the subpoena, within such other time as the hearing examiner may allow.

(2) Subpoenas duces tecum may be used by any party for purposes of discovery or for obtaining documents for use in evidence, or for both purposes. When used for discovery purposes, a subpoena may require any party to produce and permit the inspection and copying of nonprivileged documents, papers, books, or other physical exhibits which constitute or contain evidence relevant to the subject matter involved and which are in the possession, custody, or control of such party."

§ 3.35

Rulings on applications for compulsory process; appeals.

(a) Rulings. Applications for orders requiring the granting of access pursuant to the provisions of § 3.32, applications for orders requiring the taking of depositions pursuant to the provisions of § 3.33, and applications for the issuance of subpoenas pursuant to the provisions of § 3.34 may be made ex parte and, if so made, such applications and the rulings thereon shall remain ex parte unless otherwise ordered by the hearing examiner or the Commission. Such applications shall be ruled upon by the hearing examiner or, in the event the hearing examiner is not available, by the Director of Hearing Examiners or such other hearing examiner as the Director may designate.

(b) Appeals. Appeals to the Commission from rulings on objections to requests for admissions pursuant to the provisions of § 3.31, or from rulings denying applications within the scope of paragraph (a) of this section, or from rulings on motions to limit or quash process issued pursuant to such applications will be entertained by the Com

2Orders for the production of documents, provided for under former rules of practice, are no longer used.

mission only upon a showing that the ruling complained of involves substantial rights and will materially affect the final decision, and that a determination of its correctness before conclusion of the hearing is essential to serve the interests of justice. Such appeals shall be made on the record and shall be in the form of a brief not to exceed thirty (30) pages in length and shall be filed within five (5) days after notice of the ruling complained of. Appeals from denials of ex parte applications shall have annexed thereto copies of the applications and rulings involved. Answer to any such appeal may be filed within five (5) days after service of the appeal brief. The appeal shall not operate to suspend the hearing unless otherwise ordered by the hearing examiner or the Commission.

§ 3.36 Applications for confidential records of the Commission and appearance of Commission employees.

(a) Form. An application by a party other than counsel representing the Commission for the production of documents, papers, books, physical exhibits, or other material in the confidential records of the Commission or for the disclosure of confidential information, other than material or information to which the party is entitled by law, or for the issuance of a subpoena requiring the production of confidential records of the Commission by a Commission official or employee, shall be in the form of a motion filed in accordance with the provisions of § 3.22(a).

(b) Content. The motion shall specify as exactly as possible the material to be produced, the nature of the information to be disclosed, or the expected testimony of the Commission official or employee, and shall contain a statement showing the general relevancy of the material, information, or testimony, and the reasonableness of the scope of the application, together with a showing that such material, information, or testimony is not available from other sources by voluntary methods or through other provisions of the rules in this chapter.

(c) Disposition. The hearing examiner shall certify the motion to the Commission with his recommendation in accordance with the provisions of § 3.22(a). The Commission will consider and act upon such motion, having due regard for statutory restrictions, its rules, and the public interest. To the extent that the motion is granted, the Commission

will provide such terms and conditions for the production of the material, the disclosure of the information, or the appearance of the Commission official or employee as may appear necessary and appropriate for the protection of the public interest.

(d) Exceptions. An application for the issuance of a subpoena requiring the production of confidential information or material to which a party is entitled by law shall be governed by § 3.34. Nonconfidential information or material may be obtained upon request at the principal office of the Commission as provided in §§ 4.8 and 4.9 of this chapter and Commission counsel is authorized to make available any such information or material for purposes of inspection and copying.

[32 F.R. 8449, June 13, 1967, as amended at 32 F.R. 8710, June 17, 1967]

§ 3.37 Applications for appearance of other government officials.

(a) Form. An application by any party for the issuance of a subpoena returnable by an official or employee of any governmental agency in an official capacity, other than an official or employee of the Federal Trade Commission, shall be made in the form of a motion filed in accordance with the provisions of § 3.22(a).

(b) Content and disposition. The motion shall contain a statement of the necessity for and the relevancy of the expected testimony or the specified material and shall be certified by the hearing examiner with his recommendation to the Commission in accordance with the provisions of § 3.22(a).

(a) Public hearings. All hearings in adjudicative proceedings shall be public unless otherwise ordered by the Commission.

(b) Expedition. Hearings shall proceed with all reasonable expedition, and, insofar as practicable, shall be held at one place and shall continue without suspension until concluded. Consistent with the requirements of expedition, the hearing examiner shall have the authority to order brief intervals of the sort normally involved in judicial proceedings and, in unusual and exceptional circumstances for good cause stated on the record, he shall have the authority