(2) The foregoing notwithstanding, (i) if a Respondent is permitted to file a late answer, FDIC enforcement counsel shall be entitled to serve discovery requests on that party within ten days following the filing of the late answer; and (ii) if the FDIC amends the Notice, and an answer is required, the Respondent shall be entitled to serve discovery requests within the later of forty days following the service of the original Notice or ten days following the filing of the answer to the amended Notice.

§ 308.27 Document discovery from parties.

(a) General rule. Any party may serve on any other party a request to produce for inspection any discoverable documents which are in the possession, custody, or control of the party upon whom the request is served. The request shall identify the documents to be produced either by individual item or by category, and shall describe each item and category with reasonable particularity. Documents shall be produced as they are kept in the usual course of business or organized and labeled to correspond with the categories in the request.

(b) Production or copying. The request shall specify a reasonable time and manner for production and performing any related acts. In lieu of inspecting the documents, the requesting party may specify that all or some of the responsive documents are to be copied and the copies delivered to the requesting party. If copying is requested, the party to whom the request is addressed shall bear the cost of copying and shipping if less than 250 pages of copying are requested. If more than 250 pages of copying are requested, the requesting party shall pay for copying, unless the parties agree otherwise, at a rate of $.20 per page plus the cost of shipping.

(c) Obligation to update responses. Unless expressly stated to the contrary on its face, or unless otherwise ordered by the administrative law judge, all discovery requests served on a party impose an obligation on that party:

(1) To update promptly the response through the cut-off date for evidence to be admitted at the hearing as pro

vided in § 308.38(a) if that cut-off da occurs after the date for complian with the request; and

(2) To amend or supplement prom ly the response if the responding par learns that: (i) The response was mat rially incorrect when made or

(ii) The response is no longer tr and a failure to amend the response: in substance, a knowing concealment (d) Objections. (1) The party upt whom a request is served shall ser its objections to the request with twenty days after service of the quest. Any objections not made: writing and within the prescribe period are waived.

(2) The reason for each objectio shall be stated with reasonable parti ularity. If objection is made to only portion of an item or category in ar quest, the portion objected to shall b specified.

(3) The date set forth in the reques for production of documents shall nơ be a ground for relief from any prov sion of the request unless that date less than twenty days after service o the request or unless the party whom the request was made certifie that the search for and compilation and copying of the requested docu ments is expected to require mor than 40 hours of work. Under either o those circumstances, the party upo whom the request was served ma apply for a reasonable extension of time for production of the requeste documents, which extension may be granted for good cause shown. Any ex tension of time for production sha not extend the time to object to dis covery requests under paragraph (d)(1) of this section.

(4) If a party generally objects to al or virtually all of a discovery request without substantial justification, upor motion, the entire objection (excep for bona fide privilege claims) shall be stricken. The administrative law judge need not consider whether any specific objections (other than privilege claims) would have been sustained hac they been made separately.

(5) Objection to part of a reques shall not operate to delay or excuse production of documents pursuant to portions of the request to which no objection is made.

(e) Privilege. At the time other documents are produced or within twenty days after service of the discovery request, whichever is later, all documents withheld on grounds of any privilege, other than work-product privilege, shall be reasonably identified, including the basis for the claim of privilege. If a party withholds documents on the ground of work-product privilege, the party shall so state.

(f) Discovery disputes. (1) If a party objects to all or any part of a request, fails to comply fully with a request, or withholds any documents as privileged, the requesting party may, within ten days of the making of the objections or the assertion of the privilege claim, or if later, within ten days of the time the failure to comply becomes known, move before the administrative law judge for an order or subpoena requiring production.

(2) A discovery motion provided for in paragraph (f)(1) of this section shall contain a short and plain summary of the matters in dispute, and the nature of the dispute; a precise statement of the relief requested; and the certification required by § 308.30(d). The motion shall have attached to it a copy of the discovery request and the objections thereto. A brief in support of the motion may be filed when the motion is filed.

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(3) In response to motion, any other party shall have the right to submit written views to the administrative law judge at least one business day prior to the discovery conference provided for in paragraph (g) of this section. Any such response shall specifically identify and address each issue disputed by that party and may include a brief.

(g) Discovery conferences. (1) When a discovery motion is made under paragraph (f)(1) of this section, the administrative law judge shall promptly set a discovery conference, unless the administrative law judge concludes, and advises the parties, that the disputed matters can be more expeditiously, or better, resolved by handling this dispute as other written motions are handled under § 308.30, or in some other manner. At any discovery conference, each party shall be given an opportunity to be heard. The ad

ministrative law judge shall rule on each disputed matter unless the administrative law judge, in his or her discretion, determines that one or more issues should be further briefed or should be taken under advisement. As to all matters not resolved at the discovery conference, the administrative law judge shall promptly after the conference decide those matters that are not more properly held for decision at the hearing.

(2) If the moving party fails to attend the discovery conference and such failure is not excused, the motion shall be denied. If the party from whom discovery is sought does not either attend the discovery conference or submit a written response to the motion, that party shall be deemed to have waived any right to object to the requested discovery and to have consented to entry of an appropriate order or ruling.

(3) In addition to, or in lieu of, ordering production of requested documents or issuing a subpoena under this section, the administrative law judge may impose any appropriate sanctions authorized in § 308.49.

(h) Enforcing discovery subpoenas. If the administrative law judge issues a subpoena compelling production of documents by a party, the subpoenaing party may, in the event of noncompliance and to the extent authorized by applicable law, apply to any States appropriate United district

court for an order requiring compliance with that subpoena. A party's right to seek court enforcement of a subpoena shall in no way limit the sanctions that may be imposed by the administrative law judge on a party who fails to produce subpoenaed documents.

§ 308.28 Document subpoenas to nonparties.

(a) General rule. (1) Any party may apply to the administrative law judge for the issuance of a document subpoena addressed to any person who is not a party to the proceeding. The application shall contain a proposed document subpoena and a brief statement of the reasons for the issuance of the subpoena. Pre-printed forms of sub

poenas are available from the appropriate Regional Office or the Office of the Executive Secretary. The subpoenaing party shall specify a reasonable time, place, and manner for making production under the document subpoena. Any requested subpoena shall be promptly issued unless the administrative law judge determines that the application does not set forth a valid basis for issuance of the subpoena or otherwise fails to conform to the requirements of this subpart B, provided that the administrative law judge may, on his or her own motion, request briefs or hold a conference concerning whether a requested subpoena should be issued.

(2) The party obtaining the document subpoena shall be responsible for serving it on the subpoenaed person and for serving copies on all parties. Document subpoenas may be served in any state, territory, possession, or the District of Columbia or on any person or company doing business in any state, territory, possession, or the District of Columbia.

(3) Issuance of any subpoena under this paragraph (a) is without prejudice to the right of the subpoenaed person to object before the administrative law judge, in the manner set forth in paragraph (c) of this section, to all or any part of the subpoena.

(b) Scope of document subpoenas. (1) The scope of document subpoenas issued under this section is the same as that for document requests under § 308.25(b). Any document subpoena sought under this section must be applied for within the period during which the applying party could serve a document request under the provisions of § 308.26.

(2) Any questioning at a deposition of a person producing documents pursuant to a document subpoena shall be strictly limited to the identification of documents produced by that person and a reasonable examination to determine whether the subpoenaed person made an adequate search for, and has produced, all subpoenaed documents.

(3) Every party shall have a right to inspect and copy all documents produced pursuant to a document subpoena.

(4) If the subpoenaing party agree to inspect documents other than i the time and place designated in t document subpoena, or to rece copies in lieu of inspecting document it shall be the duty of the subpoena party to assure that all other parte have access to all documents inspecte by or delivered to the subpoena party, at substantially the same tim as access is obtained by the subpoen ing party.

(c) Objections. (1) The subpoenas person may object within the tim limits and on the same basis, includi assertion of privilege, upon which party could object under § 308.27(d`i a document request.

(2) if the subpoenaed person objer to all or any part of a document su poena, fails to fully comply with a do ument subpoena, or withholds a document as privileged, the subpoe ing party may, within ten days of making of the objections or the asse tion of the claim of privilege, or later, within ten days of the time th failure to comply becomes known, se to compel compliance with the doc ment subpoena in the manner prov ed in § 308.27 (f) and (g).

(3) In lieu of objecting to a doc ment subpoena, the subpoena person may within twenty days aft service of the subpoena on the subpo naed person move before the admin trative law judge to revoke, quash, modify the subpoena. A statement: the basis for the motion to revok quash, or modify a subpoena issu under this section must accompa the motion. The motion must be : notice to all parties. Any party may spond to the motion within ten da after the motion is made.

(d) Enforcing document subpoen: If a subpoenaed person fails to comp with any order of the administrat law judge issued pursuant to pa graph (c) of this section which dire compliance with all or any portion of document subpoena, the subpoena party may, to the extent authoriz by applicable law, apply to an app priate United States district court f an order requiring compliance with much of the document subpoena the administrative law judge has quashed or modified. A party's right

seek court enforcement of a document subpoena shall in no way limit the sanctions that may be imposed by the administrative law judge on a party who procures a failure to comply with a subpoena issued under this section.

§ 308.29 Depositions of witnesses unavailable for hearing.

(a) General rule. (1) If a witness will not be available for the hearing, the administrative law judge may issue a subpoena, including a subpoena duces tecum, requiring the attendance of the witness at a deposition. The administrative law judge may issue a deposition subpoena under this section upon a showing that:

(i) The witness will be unable to attend or may be prevented from attending the hearing because of age, sickness or infirmity, or will otherwise be unavailable;

(ii) The witness' unavailability was not procured or caused by the subpoenaing party;

(iii) The testimony is reasonably expected to be material; and

(iv) Taking the deposition will not result in any undue burden to any other party and will not cause undue delay of the proceeding.

b (2) If the application for a subpoena sets forth a valid basis for its issuance, the administrative law judge may either issue the deposition subpoena for, on his or her own motion, request briefs or hold a conference concerning whether a requested subpoena should be issued.

(3) A pre-printed form of the subpoena shall be available from the appropriate Regional Office or from the Office of the Executive Secretary. The subpoena shall name the witness whose deposition is to be taken and specify the time and place for taking the deposition. A deposition subpoena tomay require the witness to be deposed at any place within the country in which that witness resides or has a regular place of employment or such tother convenient place within one hundred miles of the witness's residence or regular place of employment as the administrative law judge shall offix.

b (4) The party obtaining deposition subpoenas shall be responsible for

serving them on the witness and for serving copies on all parties. Unless the administrative law judge orders otherwise, no deposition under this section shall be taken on less than ten days' notice to the witness and all parties. Deposition subpoenas may be served in any state, territory, possession, or the District of Columbia or on any person or company doing business in any state, territory, possession, or the District of Columbia.

(b) Objections to deposition subpoenas. (1) The witness and any party who has not had an opportunity to oppose a deposition subpoena issued under this section may move before the administrative law judge to revoke, quash, or modify the subpoena prior to the time for compliance specified in the subpoena, but not more than ten days after service of the subpoena.

(2) A statement of the basis for the motion to revoke, quash, or modify a subpoena issued under this section must accompany the motion. The motion must be on notice to all parties.

(c) Procedure upon deposition. (1) Each witness testifying upon oral deposition shall be duly sworn, and each party shall have the right to examine the witness. Objections to questions or evidence shall be in short form, stating the grounds for the objection. Failure to object to questions or evidence shall not be deemed a waiver except where the ground for the objection is one which might have been avoided or removed if presented at that time. All questions, answers, and objections shall be on the record.

(2) The deposition shall be subscribed by the witness, unless the parties and the witness, by stipulation, have waived the signing, or the witness is ill, cannot be found, or has refused to sign. If the deposition is not subscribed by the witness, the court reporter taking the deposition shall certify that the transcript is a true and complete transcript of the deposition.

(3) Any party may move before the administrative law judge for an order compelling the witness to answer any questions or submit any evidence the witness has refused to answer or

submit during the deposition. The motion must be on notice to all parties.

(d) Enforcing subpoenas. If a subpoenaed person fails to comply with any order of the administrative law judge which directs compliance with all or any portion of a deposition subpoena under paragraph (b) or (c)(3) of this section, the subpoenaing party or any other aggrieved party may, to the extent authorized by applicable law, apply to an appropriate United States district court for an order requiring compliance with so much of the subpoena as the administrative law judge has ordered complied with. A party's right to seek court enforcement of a deposition subpoena shall in no way limit the sanctions that may be imposed by the administrative law judge on a party who fails to comply with, or procures a failure to comply with, a subpoena issued under this section.

(a) General rule. (1) This section governs all motions except motions concerning discovery disputes which are governed by § 308.27. An application for an order shall be made by written motion, unless made during a conference or a hearing. The administrative law judge may, in his or her discretion, require that any oral motion be submitted in writing.

(2) All motions shall state with particularity the grounds therefor and the relief or order sought. A memorandum of law, affidavits, or other appropriate papers may be filed in support of any motion at the time the motion is made. All written motions shall be accompanied by a form of proposed order. No oral argument shall be heard on written motions unless the administrative law judge directs other

wise.

(3) All motions shall be decided promptly and each decision shall be memorialized either in writing or on the record.

(b) Responses. (1) Within ten days, or such shorter period as the administrative law judge may direct, after service of any written motion under paragraph (a) of this section, any party may file a written response to a motion. Any such responses shall be

accompanied by a form of propose order.

(2) When an oral motion is ma under paragraph (a) of this sectic unless the administrative law judge: his or her discretion directs that th response be in writing, any opposit party shall be given an opportunity respond to the motion orally befor the administrative law judge rules the motion.

(3) The failure of any party : oppose a motion shall be deemed waiver of the right to oppose th motion and a consent by that party: the entry, in the case of written m tions, of an order substantially in the form of the order accompanying th motion, and in the case of oral mo tions, of an order providing the relie requested.

(c) Replies. If any party's written re sponse to a motion raises new issues o arguments, the moving party maṛ within five days of service of that re sponse, serve a reply that is strict limited to addressing those new issue or arguments. No further filings relat ing to the motion shall be permitte unless the administrative law judg on his or her own motion, so directs.

(d) Good-faith attempt to resolve dis putes. (1) No written motion shall be made under this section unless the at torney for the moving party, or the moving party if unrepresented, certi fies that:

(i) The attorney or party has met (ir person or by telephone) with opposing counsel, or if unrepresented, the op posing party, in a good-faith effort to resolve the dispute that is the subject of the motion, or

(ii) The opposing attorney or party despite the moving party's reasonable efforts, cannot be contacted or has re fused to participate in such a meeting

(2) The requirement of paragraph (d)(1) of this section shall not apply to motions for summary judgment, mo tions to dismiss, or other dispositive motions that would, if granted, substantially dispose of the case as to one or more Respondents.