§ 502.183 Respondent's answering memorandum.

Within twenty-five (25) days after date of service of the complaint, unless a shorter period is fixed, each respondent shall, if he consents to the shortened procedure provided in this subpart, serve upon complainant an answering memorandum of the facts, subscribed and verified according to § 502.112 (Rule 8(b)), and of arguments, separately stated, upon which it relies. The original of the answering memorandum shall be accompanied by a certificate of service as provided in § 502.114 of this part and shall be accompanied by copies for the Commission's use. If the respondent does not consent to the proceeding being conducted under the shortened procedure provided in this subpart, the matter will be governed by Subpart E of this part (Rule 5) and the respondent shall file an answer under § 502.64 [Rule 11 (c)].

[G.O. 16, Amdt. 12, 39 FR 33223, Sept. 16, 1974]

§ 502.184 Complainant's memorandum in reply.

Within fifteen (15) days after the date of service of the answering memorandum prescribed in § 502.183, unless a shorter period is fixed, each complainant may file a memorandum in reply, subscribed and verified according to § 502.112 (Rule 8(b)), served as provided in § 502.114 of this part, and accompanied by copies for the Commission's use. This will close the record for decision unless otherwise determined by the presiding officer [Rule 11(d)].

[G.O. 16, Amdt. 12, 39 FR 33223, Sept. 16, 1974]

§ 502.185 Service of memoranda upon and by interveners.

Service of all memoranda shall be made upon any interveners. Interveners shall file and serve memoranda in conformity with the provisions relating to the parties on whose behalf they intervene. [Rule 11(e).]

§ 502.186 Contents of memoranda.

The memorandum should contain concise arguments and fact, the same as would be offered if a formal hearing were held and briefs filed. If reparation is sought, paid freight bills should accompany complainant's original memorandum. [Rule 11(f).]

(a) Applicability. The procedures described in this subpart are to be available in all proceedings under section 22 of the Shipping Act, 1916.

(b) Schedule for use. (1) After commencement of a proceeding, any party may, upon reasonable notice take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the proceeding or for both purposes. The attendance of witnesses may be compelled by the use of the subpoena as provided in Subpart I of this part.

(2) Unless otherwise ordered by the presiding officer for good cause shown, the use of the procedures set forth in this subpart shall be completed prior to hearing and shall be commenced no later than 30 days after the date of publication in the FEDERAL REGISTER of the Commission's order instituting the proceeding or notice of complaint filed, or, if the particular discovery is in the nature of a new phase of discovery generated by answers or information obtained through earlier discovery procedures, within 15 days after such answers have been served or such information obtained. Interveners desiring to use any such procedures must comply with the applicable provisions of § 502.72. The presiding officer may at any time order the parties or their attorneys to appear at a conference at which he may direct the proper use of such procedures or the time to be allowed for such use, or make such

orders as may be necessary to resolve substantive disputes with respect to discovery, and shall do so whenever he considers it desirable to prevent delay or undue inconvenience.

(c) Scope of examination. Persons and parties may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things, and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the hearing if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.

(d) Examination and cross-examination. Examination and cross-examination of deponents may proceed as permitted at the hearing under the provisions of § 502.154.

(e) Copies of rules. Any party taking a deposition pursuant to the rules of this subpart shall furnish the officer before whom the deposition is to be taken a copy of the rules of this subpart. [Rule 12(a).]

[G.O. 16, Amdt. 4, 33 FR 14409, Sept. 25, 1968, amended by Amdt. 10, 37 FR 19135, Sept. 19, 1972; Amdt. 12, 39 FR 33223, Sept. 16, 1974] § 502.202 Persons before whom depositions may be taken.

(a) Within the United States. Within the United States or within a territory or insular possession subject to the dominion of the United States, depositions shall be taken before an officer authorized to administer oaths by the laws of the United States or of the place where the examination is held.

(b) In foreign countries. In a foreign country, depositions may be taken (1) on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States, or (2) before a person commissioned by the Commission, and a person so commissioned shall have the power by virtue of his commission to administer any necessary oath and take testimony, or (3) pursuant to a letter rogatory. A commission or a letter rogatory shall be issued on application and notice and on terms that are just and appropriate. It is

not requisite to the issuance of a commission or a letter rogatory that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter rogatory may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter rogatory may be addressed "To the Appropriate Authority in [here name the country]." Evidence obtained in response to a letter rogatory need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within the United States under the rules in this subpart. [See 22 CFR 92.49-92.66.]

(c) Disqualification for interest. No deposition shall be taken before a person who is a relative or employee or attorney or counsel of any of the parties, or is a relative or employee of such attorney or counsel, or is financially interested in the action.

(d) Waiver of objection. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.

(e) Stipulations. If the parties so stipulate in writing, depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions. [Rule 12(b).] $502.203 Use of depositions at hearings.

(a) General. At the hearing, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof in accordance with any one of the following provisions:

(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.

(2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or duly authorized agent of a public or private corporation, partnership, or association which is a party, may be used by any other party for any purpose.

(3) The deposition of & witness, whether or not a party, may be used by any party for any purpose if the presiding officer finds: (1) That the witness is dead; or (ii) that the witness is out of the United States unless it appears that the absence of the witness was procured by the party offering the deposition; or (iii) that the witness 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 witness by subpoena; or (v) upon application and notice, 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.

(4) If only part of a deposition is offered in evidence by a party, any other party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.

(5) Substitution of parties does not affect the right to use depositions previously taken; and, when a proceeding in any hearing has been dismissed and another proceeding involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former proceeding may be used in the latter as if originally taken therefor.

(b) Objections to admissibility. Except as provided in this paragraph, objection may be made at the hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.

(1) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.

(2) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless reasonable

objection thereto is made at the taking of the deposition.

(3) Objections to the form of written interrogatories submitted under § 502.206 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross interrogatories.

(c) Effect of taking or using depositions. A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by any other party of a deposition as described in subparagraph (2) of paragraph (a) of this section. At the hearing, any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party. [Rule 12(c).]

§ 502.204 Depositions upon oral examination.

(a) Notice of examination: time and place. A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to such person and to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. The notice shall also contain a statement of the matters concerning which each witness will testify. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.

(b) Orders for the protection of parties and deponents. After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and upon notice and for good cause shown, the presiding officer may make an 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 notice, 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 after being sealed, the deposition shall be opened only by order of the presiding officer, or that secret processes, developments, or research need not be disclosed, or that the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the presiding officer, or the presiding officer may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression.

(c) Record of examination; oath; objections. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically and transcribed unless the parties agree otherwise. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit written interrogatories to the officer, who shall propound them to the witness and record the answers verbatim.

(d) Motion to terminate or limit examination. At any time during the taking of the deposition, on motion of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the presiding officer may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in paragraph (b) of this section. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the presiding officer. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order.

(e) Submission to witness; changes; signing. When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given therefor: and the deposition may then be used as fully as though signed, unless upon objection, the presiding officer holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.

(f) Certification and filing by officer: copies, notice of filing. (1) The officer taking the deposition shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. He shall then securely seal the deposition in an envelope inIdorsed with the title of the action and marked "Deposition of [here insert name of witness]" and shall promptly file it with the presiding officer or send it by registered mail to the Secretary of the Commission.

(2) Interested parties shall make their own arrangements with the officer taking the deposition for copies of the testimony and the exhibits.

(3) The party taking the deposition shall give prompt notice of its filing to all other parties.

(g) Effect of errors and irregularities. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under this § 502.204 and 502.205 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.

(h) Any party desiring to take a deposition as provided by this section must comply with the applicable provisions of § 502.201 (b) (2). [Rule 12(d)]

[G.O. 16, Amdt. 4, 33 FR 14409, Sept. 25, 1968, amended by Amdt. 10, 37 FR 19135, Sept. 19, 1972; Amdt. 12, 39 FR 33223, Sept. 16, 1974] § 502.205 Depositions of witnesses upon written interrogatories.

(a) Serving interrogatories; notice. A party desiring to take the deposition of any person upon written interrogatories shall serve them upon every other party with a notice stating the name and address of the person who is to answer them and the name or descriptive title and address of the officer before whom the deposition is to be taken. Within 10 days thereafter, a party so served may serve cross interrogatories upon the party proposing to take the deposition. All errors and irregularities in the notice are waived unless written objection is promptly served upon the party giving the notice.

(b) Officer to take responses and prepare record. A copy of the notice and copies of all interrogatories served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly in the manner provided by

502.204 (c),

(e), and (f), to take the testimony of the witness in response to the interrogatories and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the interrogatories received by him.

(c) Notice of filing. When the deposition is filed, the party taking it shall promptly give notice thereof to all other parties.

(d) Orders for the protection of parties and deponents. After the service of interrogatories and prior to the taking of the testimony of the deponent, the presiding officer on motion promptly made by a party or a deponent, upon notice and good cause shown, may make any order specified in § 502.204 (b) which is appropriate and just or an order that the deposition shall not be taken before the officer designated in the notice or that it shall not be taken except upon oral examination.

(e) Any party desiring to take a deposition as provided by this section must comply with the applicable provisions of section 502.201(b) (2). [Rule 12(e)] [G.O. 16, Amdt. 4, 33 FR 14409, Sept. 25, 1968, as amended by Amdt. 10, 37 FR 19135,

Sept. 19, 1972; 39 FR 33224, Sept. 16, 1974; 39 FR 33800, Sept. 20, 1974]

$502.206 Interrogatories to parties.

(a) Service and answers. Any party may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer or agent, who shall furnish such information as is available to the party. Any party desiring to serve interrogatories as provided by this section must comply with the applicable provisions of § 502.201(b) (2) and make service thereof on all parties to the proceeding. Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, on all parties to the proceeding within 30 days after the service of the interrogatories, unless the presiding officer for good cause shown, enlarges or shortens the time. The presiding officer, for good cause, may limit service of answers. The party submitting the interrogatories may move for an order under § 502.210 or § 502.211 with respect to any objection or to other failure to answer an interrogatory. Unless otherwise ordered by the presiding officer for good cause shown, such a motion shall be filed no later than 15 days after date of service of the answers or objections. Failure to file a timely motion, absent good cause, shall constitute a waiver of the party's right to utilize the provisions of § 502.210 or § 502.211 with respect to the particular answers or objections. Oral argument on answers or objections shall not be heard unless the presiding officer, as a matter of discretion, deems that the matter cannot be decided on the pleadings. No motion described in this paragraph will be entertained unless counsel for the moving party files with the Commission on or before the due date for filing a reply to the motion an affidavit certifying that he has conferred with counsel for the opposing party in an effort in good faith to resolve by agreement the issues raised by the motion without the intervention

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