Daily Rules, Proposed Rules, and Notices of the Federal Government


Office of the Secretary

29 CFR Part 18

RIN 1290-AA26

Rules of Practice and Procedure for Hearings Before the Office of Administrative Law Judges

AGENCY: Office of the Secretary, Labor.
ACTION: Notice of proposed rulemaking.
SUMMARY: Since 1983, the FRCP have been amended many times. Moreover, in 2007 the FRCP were given a complete revision to improve style and clarity. The nature of litigation has also changed in the past 28 years, particularly in the areas of discovery and electronic records. Thus, OALJ has revised its regulations to make the rules more accessible and useful to parties, and to harmonize administrative hearing procedures with the current FRCP. The goal in amending the regulations is to provide clarity through the use of consistent terminology, structure and formatting so that parties have clear direction when pursuing or defending against a claim.

In addition to revising the regulations to conform to modern legal procedure, the rules need to be modified to reflect the types of claims now heard by OALJ. When the rules were promulgated in 1983, OALJ primarily adjudicated occupational disease and injury cases. Presently, and looking ahead to the future, OALJ is and will be increasingly tasked with hearing whistleblower and other workplace retaliation claims, in addition to the occupational disease and injury cases. These types of cases require more structured management and oversight by the presiding administrative law judge and more sophisticated motions and discovery procedures than the current regulations provide. In order to best manage the complexities of whistleblower and discrimination claims, OALJ needs to update its rules to address the procedural questions that arise in these cases.

DATES: Submit comments on or before February 4, 2013.
ADDRESSES: Electronically:You may submit your comments and attachments electronically

Mail, hand delivery, express mail, messenger or courier service:You may submit your comments and attachments to the U.S. Department of Labor, Office of Administrative Law Judges, 800 K Street NW., Suite 400-North, Washington, DC 20001-8002; telephone (202) 693-7300. Deliveries (hand, express mail, messenger, and courier service) are accepted during the Office of Administrative Law Judges' normal business hours, 8:00 a.m.-4:30 p.m., e.t.

Instruction for submitting comments:Please submit only one copy of your comments via any of the methods noted in this section. All submissions received must include the agency name, as well as RIN 1290-AA26. Also, please note that due to security concerns, postal mail delivery in Washington, DC may be delayed. Therefore, in order to ensure that comments are received on time, the Department encourages the public to submit comments electronically as indicated above. For further information on submitting comments, plus additional information on the rulemaking process, see the "Public Participation" heading in theSUPPLEMENTARY INFORMATIONsection of this notice.

FOR FURTHER INFORMATION CONTACT: Todd Smyth at the U.S. Department of Labor, Office of Administrative Law Judges, 800 K Street NW Suite 400-North, Washington, DC 20001-8002; telephone (202) 693-7300.

Administrative law judges at the Office of Administrative Law Judges (OALJ), United States Department of Labor (Department), conduct formal hearings under the Administrative Procedure Act, 5 U.S.C. 554 through 557. An administrative law judge manages hearings that mirror federal civil litigation, is bound by applicable rules of evidence and procedure, and is insulated from political influence.See Tennesseev.U.S. Dep't of Transp.,326 F.3d 729, 735-36 (6th Cir. 2003). An administrative law judge acts as the functional equivalent of a trial judge.See Fed. Mar. Comm'nv.S.C. State Ports Auth.,535 U.S. 743, 756-57 (2002). The types of cases heard by administrative law judges involve a full range of complexity, from simple administrative review of an existing administrative record to de novo, trial-type litigation. Consequently, rules of practice and procedure are essential to a just, speedy, and inexpensive determination of every proceeding.

The current Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges, 29 CFR part 18, subpart A (Part 18, Subpart A), were published on July 15, 1983.See48 FR 32538, 32538, July 15, 1983. Rarely have they been altered. Some rules relating to discovery were amended in 1994.See59 FR 41874, 41876, Aug. 15, 1994. The most recent amendment, made in August 1999, permitted the appointment of settlement judges in cases arising under the Longshore and Harbor Workers' Compensation Act (Longshore Act), 33 U.S.C. 901et seq.,and associated statutes.See64 FR 47088, 47089, Aug. 27, 1999. Since its original publication, Part 18, Subpart A has never been comprehensively revised to keep abreast of ongoing changes to the procedures that govern civil litigation in federal trial courts.

The OALJ rules of practice and procedure are analogous to the Federal Rules of Civil Procedure used in the United States District Courts. Congress authorized the Supreme Court to prescribe rules for the United States District Courts in 1934, under the Rules Enabling Act, 28 U.S.C. 2072. The original version of those rules became effective on September 16, 1938.1 Since 1938, thirty-three sessions of Congress have approved changes to the FRCP, from 1941 through the most recent amendments that took effect on December 1, 2010. Significant amendments became effective in 1948, 1963, 1966, 1970, 1980, 1983, 1987, 1993, 2000, 2006, 2007, 2009, and 2010.Id.The procedural rules for OALJ have not kept pace with the eight groups of changes to the FRCP since the early 1980s.

1Staff of H. Comm. on the Judiciary, 111th Cong., Federal Rules of Civil Procedure with Forms at vii (Comm. Print 2010),

The disputes that comprise the docket at OALJ have also changed with time. When the rules of practice and procedure were first published, OALJ's judges mainly (but not exclusively) were devoting their efforts to deciding benefit claims under two broad statutory categories:

• The Black Lung Benefits Act, subchapter 4 of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. 901et seq.(1969); and

• The Longshore Act and its extensions, which included the Nonappropriated Fund Instrumentalities Act, 5 U.S.C. 8171 (1927); the Outer Continental Shelf Lands Act, 43 U.S.C. 1333 (1953); and the Defense Base Act, as amended, 42 U.S.C. 1651 (1941).2

2Judges at OALJ continue to hear a very few claims under another Longshore Act extension, the District of Columbia Workmen's Compensation Act of 1928, 36 DC Code § 501et seq.,despite the District's adoption of its own workers' compensation law. For claims that involve an injury suffered before the District's own law took effect in mid-1982, judges at OALJ continue to hear them.Keenerv.Wash. Metro. Transit Auth.,800 F.2d 1173, 1175 (D.C. Cir. 1986).

Over the last nearly two decades, Congress charged the Department of Labor (and consequently the OALJ) with the responsibility to hear and decide matters under many new statutes. Most relate to complaints by employees who assert their employers retaliated against them after they engaged in whistleblower activity. Some of these statutes for example are:

• Section 110 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9610, Public Law 96-510, 94 Stat. 2787, enacted on December 11, 1980;

• Section 405 of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. 31105, Public Law 97-424, 96 Stat. 2097, 2157-58, first enacted on January 6, 1983 (and originally codified as 49 U.S.C. 2301et seq.), and last amended by sec. 1536 of the Implementing Recommendations of the 9/11 Commission Act of 2007, Public Law 110-53, 121 Stat. 464, enacted on August 3, 2007;

• Section 212(n)(2)(C)(iv) of the Immigration and Nationality Act, 8 U.S.C. 1182(n)(2)(C)(iv), as amended by the American Competitiveness and Workforce Improvement Act of 1998, which was part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1998, Public Law 105-277, div. C, tit. IV, sec. 411(a), 112 Stat. 2681-641 to 2681-657, enacted on October 21,1998;

• Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. 42121, Public Law 106-181, 114 Stat. 145, enacted on April 5, 2000;

• Section 6(a) of the Pipeline Safety Improvement Act of 2002, 49 U.S.C. 60129, Public Law 107-355, 116 Stat. 2989, enacted on December 17, 2002;

• Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002 (the Sarbanes-Oxley Act), 18 U.S.C. 1514A, Public Law 107-204, 116 Stat. 802, first enacted on July 30, 2002, and last amended by sec. 929A of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203, 124 Stat. 1848, 1852, enacted on July 21, 2010;

• Section 1413 of the Implementing Recommendations of the 9/11 Commission Act of 2007, 6 U.S.C. 1142, Public Law 100-53, 121 Stat. 414, that amended the National Transit Systems Security Act on August 3, 2007; and

• Section 1521 of the Implementing Recommendations of the 9/11 Commission Act of 2007, 49 U.S.C. 20109, Public Law 100-53, 121 Stat. 444, that amended the Federal Railroad Safety Act on August 3, 2007.

Congress remains active in the area of whistleblower protection. On July 21, 2010, Congress created and expanded whistleblower protection for employees in the financial services industry under the Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203. On October 15, 2010, it amended another employment protection program that includes the opportunity for a hearing before an administrative law judge at the OALJ.Seethe amendment to the Seaman's Protection Act in sec. 611 of the Coast Guard Authorization Act of 2010, 46 U.S.C. 2114, Public Law 111-281, 124 Stat. 2969. This year Congress established an additional right to an administrative hearing for whistleblowing employees in sec. 402 of the FDA Food Safety Modernization Act, 21 U.S.C. 399d, Public Law 111-353, 124 Stat. 3968, enacted January 4, 2011.

The substantive program regulations the Department has published to implement many of the statutes that grant workers and employers formal hearings on claims of workplace retaliation offer limited guidance about the procedures those adjudications should follow. Regulations often incorporate instead the procedural rules of Part 18, Subpart A.See, e.g.,29 CFR 1978.107(a), 1979.107(a), 1980.107(a) (2011) (STAA, AIR21, and Sarbanes-Oxley regulations, respectively). In adopting program regulations, the Department has acknowledged it was leaving matters like the “place of hearing, right to counsel, procedures, evidence and record of hearing, oral arguments and briefs, and dismissal for cause” to the Part 18, Subpart A rules precisely “because the Office of Administrative Law Judges has adopted its own rules of practice that cover these matters.” 76 FR 2808, 2814, Jan. 18, 2011 (amending the 29 CFR part 24 regulations that cover whistleblowers in the nuclear power and environmental industries).

The growth in whistleblower jurisdiction has led OALJ to search for ways to manage those proceedings efficiently. Implementing procedures the federal district courts have developed or refined since 1983 will improve the current Part 18, Subpart A rules.

For example, several regulations that govern whistleblower claims explicitly grant the presiding judge “broad discretion to limit discovery” as a way to “expedite the hearing.” 29 CFR 1979.107(b), 1980.107(b), 1981.107(b). The Department's discussion when it published the final rules on Sarbanes-Oxley matters offered as an illustration that the judge may “limit the number of interrogatories, requests for production of documents or depositions allowed.” 69 FR 52104, 52110, Aug. 24, 2004. Other program regulations, such as those that govern disputes under the Energy Reorganization Act and six environmental statutes that cover whistleblowers in the nuclear and environmental industries published at 29 CFR part 24, incorporate the Part 18, Subpart A regulations without an explicit reference to a judge's authority to control discovery.See29 CFR 24.107(a). The Preface to those Part 24 regulations nonetheless recognizes that the current Part 18, Subpart A regulations invest a judge with broad authority “to limit discovery in appropriate circumstances.” 76 FR at 2815. Whether a program regulation specifically recognizes a judge's authority to limit or manage discovery, or implicitly does so by adopting the Part 18, Subpart A regulations, the judge will consider the parties' views on the discovery appropriate to develop the facts for hearing before limiting it. As detailed below, the early initial disclosures the federal courts now require parties to exchange under Fed. R. Civ. P. 26(a)(1) obviates the need for some formal discovery. The discovery plan that parties craft under Fed. R. Civ. P. 26(f) after they confer at the outset of the litigation offers a ready way to tailor discovery to the proceeding.

A 2010 study surveyed lawyers who were the attorneys of record in federal civil cases that terminated in the last quarter of 2008 about their satisfaction with the current FRCP. Lawyers from the Litigation Section of the American Bar Association and from the National Employment Lawyers Association were sampled too. The survey instrument had been developed jointly by the AmericanCollege of Trial Lawyers and the Institute for the Advancement of the American Legal System. A majority of lawyers across all the groups responded that active case management by judges offered a useful way to limit or avoid abusive, frivolous, or unnecessary discovery. Emery G. Lee & Thomas E. Willging, Attorney Satisfaction with the Federal Rules of Civil Procedure: Report to the Judicial Conference Advisory Committee on Civil Rules 3, 9 (2010). These survey results mesh comfortably with comments the Department received as the 29 CFR part 24 regulations were amended. Some lawyers who commented there urged the Department, among other things, to require parties to those whistleblower claims to exchange the initial disclosures now mandated by Fed. R. Civ. P. 26(a)(1). 76 FR at 2815.

Updating the Part 18, Subpart A regulations has value beyond whistleblower litigation. Regulations for the Longshore and Harbor Workers' Compensation Act published at 20 CFR 702.331 through 702.351 predate Part 18, Subpart A. They sketch out only broad outlines of how hearings should proceed, so the parties and judges fall back on the Part 18, Subpart A rules in cases brought under the Longshore Act and its extensions. Workers, their employers, and insurance carriers also will profit from updated procedures that avoid the need to serve discovery to learn basic information, and allow more focused case management.

The Department believes that in many instances the current Part 18, Subpart A rules provide limited guidance. Judges have addressed the current rules' limitations by managing procedural matters through orders, often directing parties to follow aspects of the various updates to the FRCP. The consequent variety in approaches to case management has troubled some lawyers, especially those with nationwide client bases who routinely practice before different judges throughout the nation.

Lastly, the Department recognizes that the current Part 18, Subpart A rules can be stated more clearly, something the 2007 style amendments to the FRCP highlight. The style amendments were the first comprehensive overhaul since the FRCP were adopted in 1938. Taking more than four years to complete, they aspired to simplify and clarify federal procedure. The more austere sentence structure used throughout the restyled FRCP made them shorter, easier to read and more clearly articulated. The amendments proposed to Part 18, Subpart A emulate those improvements.

The Department's principal goals in revising Part 18, Subpart A were to:

• Bring the rules into closer alignment with the current FRCP;

• Revise the rules to aid the development of facts germane to additional sorts of adjudications the Department's judges handle;

• Enhance procedural uniformity, while allowing judges to manage cases flexibly, because (a) An administrative proceeding is meant to be less formal than a jury trial; (b) local trial practice in different regions of the country should be accommodated when doing so does not affect substantive rights; and (c) governing statutes and substantive regulations may impose their own specific procedural requirements; and

• Make the rules clearer and easier to understand through the use of consistent terminology, structure, and formatting.

II. Alignment With the Federal Rules of Civil Procedure

The decisions and orders that judges enter to resolve cases under sec. 556 and 557 of the Administrative Procedure Act resemble findings of fact and conclusions of law federal district and magistrate judges enter in non-jury cases under Fed. R. Civ. P. 52. Matters proceed before OALJ much the way non-jury cases move through the federal courts.

Using language similar or identical to the applicable FRCP gains the advantage of the broad experience of the federal courts and the well-developed precedent they have created to guide litigants, judges, and reviewing authorities within the Department on procedure. Parties and judges obtain the additional advantage of focusing primarily on the substance of the administrative disputes, spending less time on the distraction of litigating about procedure.

Part 18, Subpart A currently provides that the “Rules of Civil Procedure for the District Courts of the United States shall be applied in any situation not provided for or controlled by these rules, or by any statute, executive order or regulation.” 29 CFR 18.1(a). Experienced practitioners know to consult the FRCP for guidance in circumstances the current Part 18, Subpart A rules do not explicitly cover. Given the developments in the FRCP since 1983, parties and judges switch back and forth between two different sources of procedure (the Part 18, Subpart A rules and the FRCP). This is a less than ideal situation. The proposed revision continues the current practice of looking to the federal civil rules to resolve procedural questions that the revised Part 18, Subpart A rules do not explicitly cover, a principle that § 18.1(a) has embodied for over twenty-five years.

Pretrial procedures under the FRCP have significantly changed since Part 18, Subpart A was published in 1983. Some of the most significant changes have encompassed:

• The scope of pretrial discovery;

• How time is computed under the FRCP;

• The innovation of early mandatory disclosures about documentary proof and lay and expert witness testimony that were unknown to litigation practice in 1983, the related discovery plans the parties now negotiate, and the ongoing duty parties now bear to supplement their mandatory disclosures and discovery responses;

• Alterations to the rule on pretrial conferences to encourage judges to manage cases, and give them the tools to do so;

• Imposing presumptive limitations on aspects of discovery;

• Adding rules on the discovery of electronically stored information, a rare source of information in the early 1980's that has become ubiquitous today; and

• The procedure, but not the standard, for granting summary judgment under Fed. R. Civ. P. 56 that was substantially revised in 2010.

The 2007 style amendments to the FRCP in some instances altered the original numbering of provisions that first came into being after 1983. The current rule numbers from the 2010 edition of the FRCP are used in the following discussion of significant changes in litigation practice since 1983.

A. Scope of Discovery

The scope of discovery has changed. The formulation used in current Part 18, Subpart A at § 18.14 extends discovery to “any matter, not privileged, which is relevant to the subject matter involved in the proceeding.” The FRCP now permits parties the somewhat narrower opportunity to learn about unprivileged matters “relevant to a party's claim or defense.” Advisory Committee Notes to the 2000 Amendments to Fed. R. Civ. P. 26(b)(1); Jeffery W. Stemple & David F. Herr,Applying Amended Rule 26(b)(1) in Litigation: The New Scope of Discovery,199 F.R.D. 396, 398 (2001).

B. Time Computation

Litigation requires timely filings and actions. The way time is calculated under Fed. R. Civ. P. 6 changed in 2009. In the Department's view, the Part 18, Subpart A rules should be harmonized with the FRCP so parties and their lawyers use the simpler, clearer, and more consistent way federal courts nowcalculate time. Part 18, Subpart A presently excludes weekends and legal holidays when computing some deadlines but not others.Seecurrent 29 CFR 18.4(a). Fed. R. Civ. P. 6 now counts intervening weekends and holidays for all time periods. Most short periods found throughout the FRCP were extended to offset the shift in the time-computation rules and to ensure that each period is reasonable. Five-day periods became 7-day periods and 10-day periods became 14-day periods, in effect maintaining the status quo.

Time periods in the FRCP shorter than 30 days also were revised to multiples of 7 days, to reduce the likelihood of ending on weekends. Other changes to the FRCP time-computation rules affect how to tell when the last day of a period ends, and how to compute backward-counted periods that end on a weekend or holiday.

C. Mandatory Disclosures, Their Supplements, and Discovery Plans

The Department believes that the success the federal courts have had with requiring parties to exchange elementary information early in the dispute, without the need for a formal discovery demand, should be incorporated into OALJ's procedures for most cases. The same is true for the way the federal courts require parties to disclose the opinions of experts, and to supplement disclosures and discovery responses.

Disclosures of information relevant to the claims or defenses a party may raise in the litigation were required in the 1993 amendments to the FRCP.SeeDavid D. Siegel,The Recent (Dec. 1, 1993) Changes in the Federal Rules of Civil Procedure: Background, the Question of Retroactivity, and a Word about Mandatory Disclosure,151 F.R.D. 147 (1993). Although originally subject to variation by local rule of a district court, by 2000 the disclosures became mandatory and nationally uniform (although the federal courts exempted a narrow group of cases that were unlikely to benefit from required disclosures).

The disclosure obligation was narrowed in 2000 to embrace only information the party would use to support its claims or defenses at a pretrial conference, to support a motion, to question a witness during a discovery deposition, or at trial. Advisory Committee Notes to the 2000 Amendments to Fed. R. Civ. P. 26(a). These mandatory disclosures cover basic information needed to prepare most cases for trial or to make an informed decision about settlement. Advisory Committee Notes to the 1993 Amendments to Fed. R. Civ. P. 26(a). They must be exchanged at the outset of the proceeding, even before the opponent issues any discovery request, and for the most part there is a moratorium on discovery until the automatic disclosures are made. Fed. R. Civ. P. 26(d)(1). Few excuses for failing to make timely disclosures are countenanced. Fed. R. Civ. P. 26(a)(1)(E). These prompt initial disclosures lead to an early conference where the parties discuss whether the case can be settled and negotiate a proposed discovery schedule they report to the judge. Fed. R. Civ. P. 26(f)(2).

Other amendments enhanced the pretrial disclosure of the opinions of an expert witness. A party now is required to:

• Provide a detailed written report, signed by an expert who is retained or specially employed to give expert testimony, under Fed. R. Civ. P. 26(a)(2)(B);

• Deliver the report before the expert is deposed, under Fed. R. Civ. P. 26(b)(4); and

• Prepare and serve a disclosure of the expert's testimony if the expert was not retained or specially employed to testify (and so not required to write and sign a report), under Fed. R. Civ. P. 26(a)(2)(C).

By signing and serving a required disclosure (or any discovery response), the lawyer attests that it is complete and correct; consistent with the rules; not interposed for an improper purpose; and not unreasonable nor unduly burdensome or expensive, given the needs and prior discovery in the case, the amount in controversy, and the importance of the issues at stake. Fed. R. Civ. P. 26(g).

A required disclosure that turns out to have been incomplete or incorrect in some material respect must be supplemented “in a timely manner.” Fed. R. Civ. P. 26(e). The duty to supplement extends to a required report or disclosure about expert witness testimony and to a discovery response.Id.

D. Case Management Through Pretrial Conferences and Orders

The amendments to Fed. R. Civ. P. 16 made in 1993 enhanced a judge's authority to manage litigation with the goal of achieving the just, speedy, and inexpensive determination of a matter through the use of scheduling orders under Fed. R. Civ. P. 16(b) and pretrial conferences under Fed. R. Civ. P. 16(c). Those revisions to Fed. R. Civ. P. 16 expanded the judge's authority to “take appropriate action” in a civil case. Charles R. Ritchey,Rule 16 Revised, and Related Rules: Analysis of Recent Developments for the Benefit of the Bench and Bar,157 F.R.D. 69, 75 (1994).

A pretrial conference offers the opportunity to appropriately control the extent and timing of discovery. At a conference the parties and judge may consider ways to avoid unnecessary proof and cumulative evidence at trial (including expert testimony) under what is now Fed. R. Civ. P. 16(c)(2)(D). Determining whether a motion for summary adjudication is even appropriate, and setting the time to file it, may be discussed under Fed. R. Civ. P. 16(b)(3)(A), (c)(2)(E).See generallyD. Brock Hornby,Summary Judgment Without Illusions,13 Green Bag 2d 273, 284-85 (2010) (explaining the complexity of the summary judgment process). Controlling discovery and setting deadlines for initial, expert, and pretrial disclosures under Fed. R. Civ. P. 26; for stipulations under Fed. R. Civ. P. 29; and dealing with failures to make disclosures or to cooperate in discovery under Fed. R. Civ. P. 37, all may be considered at a pretrial conference under Fed. R. Civ. P. 16(c)(2)(F). A pretrial order that limits the length of trial under Fed. R. Civ. P. 16(c)(2)(O) offers the parties a better opportunity to determine their priorities and be selective in presenting their evidence than if limits are imposed only at the time of trial. Limits on trial time must be reasonable in the circumstances and ordinarily imposed only after the parties are given the opportunity to outline the nature of the testimony they expect to offer through various witnesses and the time they expect to need for direct and cross-examination.SeeAdvisory Committee Note to the 1993 Amendments to Fed. R. Civ. P. 16(c)(15). Exploring settlement and the use of alternative dispute resolution procedures can be considered under Fed. R. Civ. P. 16(c)(2)(I). Separate trials may be set for potentially dispositive issues under Fed. R. Civ. P. 16(c)(2)(M).

E. Presumptive Limitations on Discovery

Discovery practice in federal court litigation has been altered since 1983 in a number of ways. The amendments were not meant to block needed discovery, but to provide judicial supervision to curtail excessive discovery. Advisory Committee Note to the 1993 Amendments to Fed. R. Civ. P. 33(a). The FRCP now presumptively limit the number of interrogatories a party may serve, including “all discrete subparts;” the number of depositions taken by oral examination or on written questions; taking the deposition of awitness more than once; and restricting the deposition of a witness to one day of no more than seven hours. Fed. R. Civ. P. 33(a); Fed. R. Civ. P. 30(a)(2)(A)(i), (ii), (d)(1); and Fed. R. Civ. P. 31(a)(2)(A)(i).

These presumptive limitations are adjusted as a case requires, often through the scheduling order the judge enters on the discovery plan the parties propose after their initial conference. Fed. R. Civ. P. 26(b)(2)(A), (f)(3)(E);see also,Advisory Committee Notes to the 2000 Amendments to Fed. R. Civ. P. 26(b)(2).

Parties also must seek to resolve discovery disputes informally before filing a motion. Fed. R. Civ. P. 26(c)(1);see also,Advisory Committee Notes to the 1993 Amendments to Fed. R. Civ. P. 26(a) (concerning what was then the new subparagraph (B)).

F. Discovery of Electronically Stored Information

E-discovery provisions that recognize how pervasive digital information has become were incorporated into the FRCP in 2006. Richard L. Marcus,E-Discovery & Beyond: Toward Brave New World or 1984?,236 F.R.D. 598, 604-605 (2006). The amendments recognize the integral role digital data such as email, instant messaging, and web-based information play in contemporary life and in discovery; they introduced into the FRCP the concept of “electronically stored information.” As with changes to the presumptive limits on various discovery methods, the discovery plan the parties develop is expected to address any issues about disclosure or discovery of electronically stored information, including the form in which it should be produced. Fed. R. Civ. P. 26(f)(3)(C); Fed. R. Civ. P. 34(b)(2)(D), (E);see alsoAdvisory Committee Notes to the 2006 Amendments to Fed. R. Civ. P. 26(f); Advisory Committee Notes to the 2006 Amendments to Fed. R. Civ. P. 34(b);Hopsonv.Mayor & City Council of Balt.,232 F.R.D. 228, 245 (D. Md. 2006).

Digital information is so omnipresent that federal courts now deride as “frankly ludicrous” arguments that a trial lawyer who claims to be “computer illiterate” should be excused from fulfilling the rules' e-discovery obligations.Martinv.Nw. Mut. Life Ins. Co.,No. 804CV2328T23MAP, 2006 WL 148991, at *2 (M.D. Fla. Jan. 19, 2006) (unpublished). Today a lawyer bears an affirmative duty not just to ask a client to locate and gather paper and electronic documents, but to search out sources of electronic information.Phoenix Four, Inc.v.Strategic Res. Corp.,No. 05 Civ. 4837(HB), 2006 WL 2135798, at *5 (S.D.N.Y. Aug. 1, 2006) (unpublished);In re A & M Fla. Prop. II, LLC,No. 09-15173, 2010 WL 1418861, at *6 (Bankr. S.D.N.Y. Apr. 7, 2010) (unpublished). Those efforts must, however, be proportional to what is at stake in the litigation. Fed. R. Civ. P. 26(b)(2)(C)(iii);see also, The Sedona Principles: Second Edition, Best Practices Recommendations & Principles for Addressing Electronic Document Production, Principle 2, cmt. 2.b., at 17 (2007) (“Electronic discovery burdens should be proportional to the amount in controversy and the nature of the case. Otherwise, transaction costs due to electronic discovery will overwhelm the ability to resolve disputes fairly in litigation.”);cf., Pension Comm. of the Univ. of Montreal Pension Planv.Banc of Am. Sec., LLC,685 F.Supp.2d 456, 464-65 (S.D.N.Y. 2010) (describing significant discovery burdens that were reasonable in a $550 million claim arising from the liquidation of hedge funds; but those burdens may be inappropriate in litigation where much less is at stake).

In addition, the parties should discuss and agree at the initial conference on how to handle inadvertent disclosure of digital information that otherwise would enjoy attorney-client privilege or work product protection. Fed. R. Civ. P. 26(f)(3)(D). Their agreement plays a pivotal role under recently enacted Fed. R. Evid. 502(b), (d), and (e). They avoid a waiver of privilege or work product protection when their agreement is incorporated into a scheduling order or another order.SeeAdvisory Committee Notes to the 2006 amendments to Fed. R. Civ. P. 26(f).

The current FRCP not only guide the resolution of discovery disputes, but also set standards for allocating the potentially high cost of discovery among the parties when the sources of digital data are not readily accessible. Advisory Committee Notes to 2006 Amendments to Fed. R. Civ. P. 26(b)(2) (“The conditions [the judge imposes] may also include payment by the requesting party of part or all of the reasonable costs of obtaining information from sources that are not reasonably accessible.”)

G. Summary Decision

A motion for summary adjudication carries the potential to dispose of an entire claim or portions of it with finality but without a trial, so it plays a key role in litigation. The procedure ought to be the same at the OALJ as in U.S. district courts; any divergence creates an incentive for a party to prefer the forum with the summary decision régime most favorable to its position. This matters because under many statutes whistleblower litigation begins at OALJ, but the complainant may proceed in U.S. district court if a final order has not been entered within a relatively short time after the claim is first brought to the attention of the Department.See, e.g.,18 U.S.C. 1514A(b)(1)(B) (2010) (Sarbanes-Oxley Act); 42 U.S.C. 5841(b)(4) (2010) (Energy Reorganization Act); 46 U.S.C. 2114(b) (2010) (Seaman's Protection Act); 49 U.S.C. 31105(c) (2010) (Surface Transportation Assistance Act).

Federal Rule of Civil Procedure 56 was recently revised effective December 1, 2010. It now instructs the judge to state a reason for granting or denying the motion, usually by identifying the central issues, which can help the parties focus any further proceedings. Advisory Committee Notes to 2010 Amendments to Fed. R. Civ. P. 56(a). The judge is not obliged to search the record independently to determine whether there is a factual dispute for trial, but nonetheless may consider record materials the parties never called to the judge's attention. Advisory Committee Notes to 2010 Amendments to Fed. R. Civ. P. 56(c)(3). A formal affidavit is not required to support the motion; an unsworn declaration signed under penalty of perjury suffices, recognizing the status 28 U.S.C. 1746 gives to those statements. Fed. R. Civ. P. 56(c)(4). Even if the motion is not granted, or granted only in part, the judge may find that certain facts are undisputed and treat them as established. Fed. R. Civ. P. 56(g). Invoking this authority demands care, however. To limit litigation expenses, a nonmovant who feels confident a genuine dispute as to one or a few facts will defeat the motion may choose not to file a detailed response to all facts the movant stated. That choice should not expose the party to the risk that the additional facts will be treated as established under subdivision (g). Advisory Committee Notes to 2010 Amendments to Fed. R. Civ. P. 56(h).

The judge may sanction a party who submits an affidavit or declaration with its motion papers in bad faith or solely for delay. Fed. R. Civ. P. 56(h).

H. Additional Matters

Other portions of the FRCP have also undergone significant changes, including rules on the subjects of:

• Sanctions under Fed. R. Civ. P. 11 in 1993,seeEdward D. Cavanagh,Rule 11 of The Federal Rules of Civil Procedure: The Case Against Turning Back the Clock,162 F.R.D. 383, 396 (1995); and

• Subpoenas under Fed. R. Civ. P. 45 in 1991,seeDavid D. Siegel,FederalSubpoena Practice Under the New Rule 45 of The Federal Rules of Civil Procedure,139 F.R.D. 197, 197 (1992).

The proposed revisions to Part 18, Subpart A reflect the general tenor of these amendments.

III. Evolution in Types of Cases

Congress has vested the Department (and therefore OALJ) with the responsibility to conduct formal hearings pursuant to more than 60 laws, including at least 19 that protect employees from retaliation for whistleblowing.

The bulk of hearings conducted by OALJ involve longshore workers' compensation and black lung benefits claims. This was true when OALJ's rules of practice were published in 1983 and is still true today.3 These cases have benefited from having established rules of practice and procedure modeled on the FRCP. The evolution in the types of cases heard by OALJ, however, has resulted in a significant increase in hearings that are the functional equivalent of a civil trial in federal or state court, absent only the jury. In particular, whistleblower cases now account for a significant portion of OALJ's workload, disproportionate to their percentage of the overall docket. As noted above, many of the statutes creating the responsibility for whistleblower adjudication by the Department of Labor were promulgated after the Part 18, Subpart A rules were published in 1983. Nine whistleblower laws with the potential for ALJ hearings within the Department of Labor were enacted after the year 2000. Hearings arising under these statutes often involve complex fact patterns and novel legal issues. Overall, whistleblower litigation typically requires more extensive discovery, case management, motion work, summary decision practice, and time in trial than many of the other types of cases heard by OALJ.

3OALJ also conducts administrative review in a large number of immigration-related appeals involving both permanent and temporary labor certification applications. Many of these reviews do not require an evidentiary hearing because the review is on the existing record.

Moreover, intensive litigation is typical in cases arising under the Defense Base Act. Although the Defense Base Act has been in existence since World War II, increasing use of contract services by the military and other parts of the federal government has resulted in significantly more hearings conducted by OALJ under that law in recent years. These cases tend not to settle, and therefore require more case management by judges as compared with other workers' compensation cases adjudicated by OALJ. OALJ also now conducts hearings involving labor condition applications of employers who employ H-1B nonimmigrant workers. OALJ's experience is that many of these cases do not settle; they also involve extensive procedural motions and multi-day hearings.

Thus, the change in the case mix before OALJ has heightened the need for procedural rules that are clearly written, permit improved and more consistent case management by judges, and are familiar to the national legal community under current federal court practice.

IV. Flexibility/Uniformity

Notwithstanding the variety of statutes and regulations that generate disputes at OALJ, the provisions of the Administrative Procedure Act at 5 U.S.C. 556 offer broad guidance to administrative law judges about how to conduct proceedings. Flexibility in applying procedural rules is desirable, so that judges manage litigation according to the needs of an individual case. The Department's opportunity to review the decision of its administrative law judges under 5 U.S.C. 557(b) safeguards a party from an abuse of that discretion.

Some cases by their nature need special management. For example, applying a general rule that sets the time to respond to formal discovery demands may be inappropriate in a case that demands expedited handling. A striking illustration of an expedited proceeding is one to review a denial of an employer's application to the Office of Foreign Labor Certification under 20 CFR 655.103 to certify the use of non-immigrant workers in temporary agricultural employment under the H-2A visa program of the Immigration & Nationality Act, 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1188(e). In such cases, the employer only has five business days to seek review of an application's denial under 20 CFR 655.141(b)(4) and 655.142(c). Where the employer requests administrative review, the judge has only five business days after receipt of the administrative file from the Office of Foreign Labor Certification to render a decision. 20 CFR 655.171(a) (2011). Where the employer requests de novo review, the Part 18, Subpart A rules apply, but the hearing must be convened within five business days after the administrative law judge receives the administrative file, and the decision must follow within ten calendar days. 20 CFR 655.171(b). Additionally, for some types of cases—for example, those adjudicated under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901et seq.,and its extensions such as the Defense Base Act, 42 U.S.C. 1651,et seq.,and the Black Lung Benefits Act, 30 U.S.C. 901et seq.—the Department's substantive regulations also include procedural provisions.See20 CFR parts 702 (Longshore) and 725 (Black Lung).

The proposed rules have been drafted to authorize a judge to tailor procedures to the case, through a prehearing order. A judge may take a broad range of actions under proposed § 18.50(b)(2) and (3). Parties may be ordered to confer about settlement early in the case, required to make prehearing disclosures without any formal discovery demand from the other party, and directed to draft a discovery plan. Yet the judge also may relieve the parties from the obligation to make initial disclosures, and alter the general limitations on the number of interrogatories and the number and length of depositions. This flexibility permits a judge to address, in an individualized way, the needs of any specific case. The judge also may address any regional differences in litigation practices that may require direction or clarification.

V. Clarity/Re-Organization

The FRCP underwent a complete revision that culminated in 2007 to improve their style and clarity. Restyled Federal Rules of Appellate Procedure took effect in 1998, as the restyled Federal Rules of Criminal Procedure did in 2002. Sources that guided drafting, usage, and style for all three revisions included theGuidelines for Drafting and Editing Court Rules,which the Standing Committee on Federal Rules of Practice and Procedure of the Judicial Conference of the United States published at 169 F.R.D. 171 (1997), and Bryan A. Garner'sA Dictionary of Modern Legal Usage(2d ed. 1995). The purpose of the style revisions was twofold: to make the rules easier to understand, and to make style and terminology consistent throughout the rules.SeeAdvisory Committee's Notes to the 2007 Amendments to Fed. R. Civ. P. 1. The restyled federal civil rules reduced the use of inconsistent, ambiguous, redundant, repetitive, or archaic words. For example, the restyled rules replaced “shall” with “must,” “may,” or “should,” as appropriate, based on which one the context and the established interpretation made correct.Id.The sole exception was the highly controversial restoration of the “shall” in Fed. R. Civ. P. 56(a) on summary judgment when it was amended in 2010. Advisory Committee's Notes to the 2010 Amendments to Fed. R. Civ. P. 56(a).

The drafting guidelines the authors of the 2007 style amendments used toenhance the clarity and readability of the FRCP also were used as the Department revised Part 18, Subpart A. Proposed revisions typically are based on the text of the restyled federal civil rule for the corresponding subject, unless there was a reason to deviate from the federal rule's language. As one example, the word “court” is replaced throughout with the word “judge,” because administrative adjudications do not take place in a court. Where substantive deviations from the FRCP were made, the reason for the deviation is noted in the portion of the Notice of Proposed Rulemaking pertaining to the specific proposed rule. Where there is no corresponding federal civil rule, the Department used the FRCP drafting guidelines to revise the existing Part 18, Subpart A rules, to improve their clarity and internal consistency. The ordering of some rules was altered to improve the overall clarity of the Part 18, Subpart A regulations. A conversion table that shows the current Part 18, Subpart A rules and their corresponding proposed rule appears at the end of this Preface. In drafting the text of the proposed rules, the Department also took into account two Executive Orders:

• Executive Order 12866 (1993), which requires that regulations be “simple and easy to understand, with the goal of minimizing uncertainty and litigation * * * ” 58 FR 51735, sec. 1(b)(12), Sept. 30, 1993 (amended 2002 & 2007); and

• Executive Order 12988 (1996), which requires that regulations be written in “clear language.” 61 FR 4729, sec. 3(b)(2) (Feb. 5, 1996).

The Plain Writing Act of 2010, 5 U.S.C. 301, Public Law 111-274, 124 Stat. 2861 (2010), while not directly applicable to regulations, recognizes the value of plain writing in government documents by requiring clear, concise, and well-organized publications. The Office of Management and Budget has published a “Best Practices Guide for Regulations” available on the internet.4 These proposed rules follow the guidance these sources offer.

4This guide is available at

Section 6(a) of Executive Order 13,563 (dated January 18, 2011), states: “To facilitate the periodic review of existing significant regulations, agencies shall consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” 76 FR at 3821. The Executive Order also requires each agency to prepare a plan for reviewing its regulations. Although the revision of Part 18, Subpart A began well before this recent Executive Order, the proposed revisions meet the Order's requirements, by replacing outmoded rules with a more-readily understandable version.

VI. Regulatory Review A. Executive Order 12866 (Regulatory Planning and Review)

This proposed rule has been drafted and reviewed in accordance with Executive Order 12866. The Department of Labor, in coordination with the Office of Management and Budget (OMB), has determined that this proposed rule is not a “significant regulatory action” under Executive Order 12866, section 3(f) because rule because the rule will not have an annual effect on the economy of $100 million or more; nor create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; nor materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof. Furthermore, the rule does not raise a novel legal or policy issue arising out of legal mandates, the President's priorities or the principles set forth in this Executive Order. Accordingly, the proposed rule has not been reviewed by OMB.

B. Regulatory Flexibility Act/Small Business Regulatory Enforcement Fairness Act

The Department concludes that the Regulatory Flexibility Act, 5 U.S.C. 601et. seq.does not apply since the changes proposed here consist of amendments to rules of agency organization, procedure and practice, and consequently are exempt from the notice and public comment requirements of the Administrative Procedure Act,see5 U.S.C. 553(b)(3)(A).

C. Executive Order 12291 (Federal Regulation)

The Department has reviewed this rule in accordance with Executive Order 12291 and determined it is not a “major rule” under Executive Order 12291 because it is not likely to result in (1) An annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic or export markets. Accordingly, no regulatory impact analysis is required.

D. Unfunded Mandates Reform Act of 1995 and the Executive Order 13132 (Federalism)

The Department has reviewed this proposed rule in accordance with the requirements of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531et seq.,and Executive Order 13132. The Department concludes that the requirements of these provisions do not apply to the proposed rule, because the proposed rule does not place any mandate on State, local, or tribal governments.

E. Paperwork Reduction Act

The Department certifies that this proposed rule has been assessed in accordance with the requirements of the Paperwork Reduction Act, 44 U.S.C. 3501et seq.(1995)(PRA). The Department concludes that the requirements of the PRA do not apply to this rulemaking because this regulation does not contain any information collection requirements that require the approval of the Office of Management and Budget.

F. The National Environmental Policy Act of 1969 (Environmental Impact Assessment)

The Department has reviewed the proposed rule in accordance with the requirements of the National Environmental Policy Act (NEPA) of 1969, as amended (42 U.S.C. 4321et seq.) and the Department of Labor's NEPA procedures (29 CFR part 11). The Department concludes that the requirements of the NEPA do not apply to this rulemaking as there are no requirements or provisions contained in this proposed rule that involve assuring the maintenance of a healthful environment and there are no provisions impacting the responsibilities to preserve and enhance that environment contained herein and, thus, has not conducted an environmental assessment or an environmental impact statement.

G. The Privacy Act of 1974, 5 U.S.C. 552a, as Amended

The Department has reviewed this proposed rule in accordance with the Privacy Act of 1974, as amended (5 U.S.C. 552a). This rulemaking would not require any new process, filing or collection of any new information in the proceedings before the Office ofAdministrative Law Judges and therefore, the Department has determined this proposed rule would not result in a new or revised Privacy Act System of Records.

H. Federal Regulations and Policies on Families

The Department has reviewed this proposed rule in accordance with the requirements of the Federal Regulations and Policies on Families, Section 654 of the Treasury and General Government Appropriations Act of 1999. These proposed regulations were not found to have a potential negative effect on family well-being as it is defined there under.

I. Executive Order 13045 (Protection of Children From Environmental Health Risks and Safety Risks)

The Department certifies that this proposed rule has been assessed regarding environmental health risks and safety risks that may disproportionately affect children. These proposed regulations were not found to have a potential negative effect on the health or safety of children.

J. Executive Order 12630 (Governmental Actions and Interference With Constitutionally Protected Property Rights)

The Department has reviewed this proposed rule in accordance with E.O. 12630 and has determined that it does not contain any “policies that have takings implications” in regard to the “licensing, permitting, or other condition requirements or limitations on private property use, or that require dedications or exactions from owners of private property.”

K. Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments)

The Department has reviewed this proposed rule in accordance with E.O. 13175 and has determined that it does not have “tribal implications.” The proposed rule does not “have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

L. Executive Order 12988 (Civil Justice Reform)

This regulation has been drafted and reviewed in accordance with Executive Order 12988, Civil Justice Reform, and will not unduly burden the Federal court system. The regulation has been written so as to minimize litigation and provide a clear legal standard for affected conduct, and has been reviewed carefully to eliminate drafting errors and ambiguities.

M. Executive Order 13211 (Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use)

The Department has reviewed this proposed regulation in accordance with Executive Order 13211 and determined that the proposed rule is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866, will not have a significant adverse effect on the supply, distribution, or use of energy, and has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action.

VII. Public Participation A. APA Requirements for Notice and Comment

The changes proposed here consist of amendments to rules of agency organization, procedure and practice, and consequently are exempt from the notice and public comment requirements of the Administrative Procedure Act,see5 U.S.C. 553(b)(3)(A). However, the Department wishes to provide the public with an opportunity to submit comments on any aspect of the entire proposed rule.

B. Publication of Comments

Please be advised that the Department will post all comments without making any change to the comments, including any personal information provided. Thewww.regulations.govWeb site is the Federal e-rulemaking portal and all comments received electronically or by mail, hand delivery, express mail, messenger or courier service are available and accessible to the public on this Web site. Therefore, the Department recommends that commenters safeguard their personal information by not including social security numbers, personal addresses, telephone numbers, and email addresses in comments. It is the responsibility of the commenter to safeguard his or her information.

C. Access to Docket

In addition to all comments received by the Department being accessible,the Department will make all the comments available for public inspection during normal business hours at the above address. If you need assistance to review the comments, the Department will provide you with appropriate aids such as readers or print magnifiers. The Department will make copies of the proposed rule available, upon request, in large print or electronic file on computer disc. The Department will consider providing the proposed rule in other formats upon request. To schedule an appointment to review the comments and/or obtain the proposed rule in an alternate format, contact Todd Smyth at the U.S. Department of Labor, Office of Administrative Law Judges, 800 K Street NW., Suite 400-North, Washington, DC 20001-8002; telephone (202) 693-7300.

Part 18, Subpart A—Cross Referencing Chart New
  • section
  • New section title Old section Old section title Federal rule of civil
  • procedure
  • GENERAL PROVISIONS 18.10 Scope and purpose 18.1/18.26 Scope of rules and conduct of hearings Fed. R. Civ. P. 1 18.11 Definitions 18.2 Definitions 18.12 Proceedings before administrative law judge 18.25/18.29(a) Proceedings before administrative law judge/authority of the administrative law judge 18.13 Settlement judge procedure 18.9 Consent order or settlement; settlement judge procedure 18.14 Ex parte communication 18.38 Ex parte communications 18.15 Substitution of administrative law judge 18.30 Unavailability of administrative law judge Fed. R. Civ. P. 63 18.16 Disqualification 18.31 Disqualification 18.17 Legal assistance 18.35 Legal assistance PARTIES AND REPRESENTATIVES 18.20 Parties to a proceeding 18.10 Parties, how designated 18.21 Party appearance and participation 18.39/18.34(a) 18.39, Waiver of right to appear and failure to participate or to appear—text was incorporated into proposed “participation” rule 18.22 Representatives 18.34 Representatives 18.23 Disqualification and discipline of representatives 18.24 Briefs from amicus curiae 18.12 Amicus curiae SERVICE, FORMAT AND TIMING OF FILINGS AND OTHER PAPERS 18.30 Service and filing 18.3 Service and filing Fed. R. Civ. P. 5 18.31 Privacy protection for filings and exhibits Fed. R. Civ. P. 5.2 18.32 Computing and extending time 18.4 Time computations Fed. R. Civ. P. 6 18.33 Motions and other papers 18.6 Motions and requests Fed. R. Civ. P. 7(b) & 43(c) 18.34 Format of papers filed 18.35 Signing motions and other papers; representations to the judge; sanctions Fed. R. Civ. P. 11 18.36 Amendments after referral to the Office of Administrative Law Judges 18.5 Responsive pleadings—answer and request for hearings PREHEARING PROCEDURE 18.40 Notice of hearing 18.27 Notice of hearing 18.41 Continuances and changes in place of hearing 18.28 Continuances 18.42 Expedited proceedings 18.42 Expedited proceedings 18.43 Consolidation; separate hearings 18.11 Consolidation of hearings Fed. R. Civ. P. 42 18.44 Prehearing conference 18.8 Prehearing conferences Fed. R. Civ. P. 16 DISCLOSURE AND DISCOVERY 18.50 General provisions governing disclosure and discovery Fed. R. Civ. P. 26(a), (d), (f), (g) 18.51 Discovery scope and limits 18.14 Scope of discovery Fed. R. Civ. P. 26(b) 18.52 Protective orders 18.15 Protective orders Fed. R. Civ. P. 26(c) 18.53 Supplementing disclosures and responses 18.16 Supplementation of responses Fed. R. Civ. P. 26(e) 18.54 Stipulations about discovery and procedure 18.17 Stipulations regarding discovery Fed. R. Civ. P. 29 18.55 Using depositions at hearings 18.23 Use of depositions at hearings Fed. R. Civ. P. 32 18.56 Subpoena 18.24 Subpoenas Fed. R. Civ.