Page images

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 indorsed with the title of the action and marked "Deposition of (here insert name of witness)" and shall promptly file it with the Commission or send it by registered mail to the Clerk thereof for filing.

(2) Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent.

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

§ 503.18 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. Within 5 days thereafter, the latter may serve redirect interrogatories upon a party who has served cross-interrogatories. Within 3 days after being served with redirect interrogatories, a party may serve recross interrogatories upon the party proposing to take the deposition.

(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 § 503.17 (c), (d) and (e) 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.

8503.19 Effect of errors and irregularities in depositions—(a) As to notice. 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) As to disqualification of officer. 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.

(c) As to taking of deposition. (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 seasonable objection thereto is made at the taking of the deposition.

(3) Objections to the form of written interrogatories submitted under § 503.18 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other interrogatories and within 3 days after service of the last interrogatories authorized. Answers to interrogatories to which objection is made shall be deferred until the objections are determined.

(d) As to completion and return of deposition. 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 §§ 503.17 and 503.18 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.

§ 503.20 Calls on departments or agencies of the Government. (a) A call will be made on any department or agency of the Government on motion of any party upon the approval of the Commission.

(b) The motion shall show with particularity what is sought to be proved by

the papers or information desired, and how or in what respect they are relevant and material to the issues of the case.

(c) Motions for calls upon any department or agency of the Government shall be filed in the Clerk's office. If no objection is filed with the Clerk within 10 days after the motion has been served on the Attorney General, the motion will be presented to and acted upon by the Chief Commissioner or a Commissioner acting in his stead, as in the case of other motions.

(d) The Attorney General may offer in evidence duly certified information and papers from any department or agency of the Government without calling for the same under the provisions of paragraph (a) of this section.

(e) All information and papers furnished by any department or agency of the Government in response to a call or offered in evidence by the Attorney General shall be subject to objection by either party; but as to duly certified copies furnished on call or offered by the Attorney General, neither party will be required to produce the originals of such papers or prove their execution.

(a) § 503.21 Documentary evidence. At any hearing held under the rules in this part, any official letter, paper, document, map or record in the possession of any officer or department or court of the United States, or committee of Congress (or a certified copy thereof), may be used in evidence insofar as the same is relevant or material.

(b) Original depositions or original transcripts of other testimony of record (or certified copies of either) in any suit or proceeding in any court of the United States to which an Indian or Indian tribe or group was a party may be used in evidence insofar as relevant and material.

(c) Objections to the competency, relevancy and materiality of any evidence hereunder shall be made at the time it is offered in evidence.

§ 503.22 Hearings-(a) Motions. (1) With each motion there shall be filed and served a separate paper stating the specific points of law and authorities to support the motion. Such statement shall be additional to a statement of grounds in the motion itself, and shall be entered on the docket but shall not be a part of the record. A statement of opposing points and authorities shall be similarly filed, noted and served within

10 days or such further time as the Commission may grant or the parties agree upon. If not filed within the prescribed time, the Commission may treat the motion as conceded. If so filed, the motion shall be treated as submitted unless the Commission directs or either party requests an oral hearing.

(2) Nonappearance of parties. If at the time set for hearing there be no appearance for the moving party, the Commission may treat the motion as submitted or waived, or continue or strike it from the motion calendar. If there be no appearance for the opposing side, it may be treated as submitted or conceded.

(b) Assignment of case. When a claim is at issue, the same shall be assigned for hearing by the Commission. Any claim may be retained for hearing by the Commission or assigned for hearing to a Commissioner or an Examiner. When retained by the Commission to determine the facts, the rules applicable to hearings by a Commissioner or an Examiner shall be applicable.

(c) Authority of Commissioner or Examiner. When a claim has been assigned to a Commissioner or to an Examiner for hearing, such Commissioner or Examiner shall act in the name of the Commission and all lawful and proper orders made and directions given by such Commissioner or Examiner shall have the same force and effect as though made by the Commission; but any party feeling himself aggrieved at any order made or direction given may have such order or direction reviewed by the Commission by motion to review filed within a reasonable time thereafter, or by objections to the findings of fact filed by said Commissioner or Examiner.

(d) Evidence. The Commission, the Commissioner or the Examiner shall rule on the competency, materiality and relevancy of all evidence offered.

(e) Pre-trial procedure; formulating issues. In any proceeding the Commission may in its discretion direct the attorneys for the parties to appear before it or a Commissioner designated for that purpose for a conference to consider:

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

(3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;

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

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

If the proceeding has been assigned to a Commissioner or Examiner he shall be present. The Commissioner shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.

(f) On merits. (1) In every case, unless otherwise ordered, the hearing before the Commission, a Commissioner or an Examiner in the first instance shall be limited to the issue of fact and law relating to the right of the plaintiff to


(2) The burden of going forward with its proof shall be on the petitioner and the defendant shall not be required to produce any evidence until the petitioner has closed its proof. When hearings are being held in any place other than the District of Columbia, the defendant, may, if it so desires, take the testimony of any witness available at the time and place. If the hearing at any other place than the District of Columbia is on the part of the defendant, the petitioner may, at the same time and place, produce evidence in rebuttal of any evidence theretofore or then being produced.

(3) When the Commissioner or the Examiner has reason to believe that there are other material witnesses and evidence which have not been procured by either party, he may, after reasonable notice to the parties, summon and examine such witnesses and procure such evidence and consider the same in connection with the proof submitted by the parties. When the Commissioner or the Examiner has reason to believe that the case is being unnecessarily delayed by the failure of either or both parties to produce witnesses, he may fix a reasonable time in which said party delaying the same must close the testimony.

not be necessary for the witness to sign the same.

(g) Swearing witnesses. Witnesses shall be sworn or affirmed by the Commissioner or Examiner. When testimony is taken orally before a Commissioner or Examiner at a hearing, it shall

(h) Date and place. When a claim has been assigned for hearing, the Commission, the Commissioner or the Examiner shall notify the interested parties to produce before it or him witnesses or evidence within such reasonable time and at such place as it or he may designate.

(i) Reporter. At all hearings, whether before the Commission, a Commissioner or an Examiner, the testimony shall be taken by a disinterested reporter named by the Commission, a Commissioner or an Examiner, as the case may be, who shall take the testimony and transcribe the same. The reporter shall be sworn by a member of the Commission or an Examiner to well and truly take down and transcribe the questions propounded to and the answers given by the witnesses, and to do all other things required of him by the Commission, a Commissioner or an Examiner. A reporter who is in the regular employ of the Commission shall take the oath required by section 4 of the act creating the Commission and the oath prescribed in this paragraph and need not thereafter take the latter oath, but reporters selected for a particular case must be sworn as herein provided in this paragraph.

§ 503.23 Evidence—(a) Form and admissibility. In all hearings, the testimony of witnesses shall be taken orally in open court, unless otherwise provided by the rules in this part. All evidence shall be admitted which is admissible under the statutes of the United States or under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity, or under the rules of evidence at common law. In any case, the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any of the statutes or rules to which reference is made in this part. The competency of a witness to testify shall be determined in like manner.

(b) Record of excluded evidence. If an objection to a question propounded to a witness is sustained, the examining attorney may make a specific offer of what he expects to prove by the answer of the witness, except that upon request the evidence shall be reported in full, unless it clearly appears that the evidence is not admissible on any ground

or that the evidence of the witness is privileged.

(c) Affirmation in lieu of oath. Whenever under the rules in this part an oath is required to be taken, a solemn affirmation may be accepted in lieu thereof.

(d) Rulings; exceptions unnecessary. The Commission or person presiding at any hearing shall rule on the competency, relevancy and materiality of all evidence offered. Formal exceptions to rulings or orders are unnecessary.

(e) When at any hearing documentary evidence is offered and objection is made thereto the Commission, Commissioner or Examiner conducting the hearing, shall rule upon the same and, if the ruling is adverse to the party offering said evidence, the document may be marked for identification and added to the record.

§ 503.24 Subpoena (a) For attendance of witnesses; form; issuance; fees. (1) Every subpoena shall be issued in the name of the Commission and shall be signed by the Clerk under the seal of the Commission. Every subpoena shall state the title of the claim and the number and shall command each person to whom it is directed to attend and give testimony at a time and place therein specified. The Clerk shall issue a subpoena, or a subpoena for the production of documentary evidence, signed and sealed but otherwise in blank, to a party requesting it, who shall fill it in before service.

(2) The fees and mileage of witnesses shall be such as are now or may hereafter be prescribed by statute, for like service in the District Courts of the United States, and shall be paid by the party at whose instance the witnesses appear.

(b) For production of documentary evidence. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein; but the Commission, upon motion made promptly and, in any event, at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable and oppressive, or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.

(c) Service. (1) A subpoena may be served by any person who is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and by tendering to him the fees for one day's attendance and the mileage allowed by law. When the subpoena is issued on behalf of the United States, fees and mileage need not be tendered.

(2) The fees and mileage shall be the same as allowed by law for service of subpoenas issued by United States District Courts, which shall be paid by the party requesting the service.

(d) Return. The person serving the process shall make proof of service thereon to the Commission promptly and in any event within the time during which the person served must respond to the process. If service is made by a person other than a United States Marshal or his deputy, he shall make affidavit thereof. Failure to make proof of service does not affect the validity of the service.

§ 503.25 Proposed findings of fact. Upon the closing of proof by the parties in any case, the petitioner shall, unless otherwise directed by the Commission, a Commissioner or an Examiner, have 30 days from the filing of the transcript within which to file proposed findings of fact and the defendant shall have 30 days after the service of petitioner's proposed findings of fact to file its objections to petitioner's proposed findings of fact and its own proposed findings of fact, and the petitioner shall have 20 days after the service of defendant's proposed findings of fact within which to file its objections thereto, but such requested findings of fact or objections to proposed findings need not be printed. The time designated in this section may be extended by the Commission, a Commissioner or an Examiner hearing the claim. Such proposed findings shall, upon the filing of the report, be filed with the original record in the case for consideration of the Commission in connection with any exceptions by either party and may be referred to by either party in support of any exceptions to the findings of fact.

§ 503.26 Report. When a case has been referred to a Commissioner or Examiner and proof has been closed by both parties, the Commissioner or Examiner shall proceed to ascertain the

[blocks in formation]
« PreviousContinue »