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24.5.322 DEPOSITIONS (1) A party may take the testimony of any person, including a party, by deposition upon oral examination after the court or appropriate party has served the petition. The petitioner shall obtain leave of court if the petitioner seeks to take a deposition prior to the expiration of 20 days from the date of service of the petition. If a party seeks to take a post-trial deposition, the party shall obtain leave of court. A party may compel the attendance of witnesses by subpoena as provided by ARM 24.5.331. (2) A party seeking to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the proceeding and: (a) include in the notice the time and place for taking the deposition and the name and address of each person to be examined; and (b) if intending to serve a subpoena duces tecum on the person to be examined, attach to or include in the notice the designation of the materials to be produced as set forth in the subpoena. (3) The court may lengthen or shorten the time for taking the deposition if a party demonstrates good cause. Rules of the Workers’ Compensation Court 24 24.5.322 (4) The parties may examine and cross-examine witnesses in the same manner that the court permits at trial. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under the officer's direction and in that person's presence, stenographically record the testimony of the witness. If requested by a party, the person who recorded the testimony shall transcribe it. (5) Unless they agree otherwise, the parties shall make all objections at the time of taking the deposition and on the record. The parties shall take evidence to which a party objects subject to the objections. The parties shall brief deposition objections. The court may deem the parties' failure to do so a withdrawal of the objections. (6) At any time during the deposition, on motion of a party or of the deponent, and upon a showing that the officer is conducting the examination in bad faith or in a manner as unreasonably to annoy, embarrass, or oppress a party or the deponent, the parties shall suspend the taking of the deposition for the time necessary for the objecting party or deponent to move the court for an order. The court may order the officer conducting the examination to cease taking the deposition, or may limit the scope and manner of the taking of the deposition. If the court ends the examination by order, the parties may resume the deposition only upon further order of the court. The court may order the offending party to pay to the other party the amount of the reasonable expenses that the adjournment and resumption of the deposition caused that party to incur, including reasonable attorney fees, and the court may adjudge the offending party or attorney guilty of contempt. (7) The witness shall examine any transcribed deposition either by reading it or having it read aloud. The witness shall enter any changes in form or substance that the witness desires to make upon the deposition. The witness shall then sign under oath, unless the parties and the witness waive the signing or the witness is ill, cannot be found, or refuses to sign. If the witness does not sign the deposition within the time set forth in ARM 24.5.320, the officer shall sign it and state on the record the reason, if any, that the witness has not signed the deposition. A party may then use the deposition as fully as though the witness had signed it. (8) The parties, by written stipulation, or by stipulation entered upon the record of a deposition, may provide that they may take depositions before any person, at any time or place, upon any notice, and in any manner. The parties may use these depositions like other depositions. (9) Any party may use the deposition of a witness or a party for any purpose, regardless of the availability of the witness or party to testify at trial, unless the court restricts the deposition's usage because it would serve the interests of justice. (10) If a party proposes to offer a transcribed deposition for the court's consideration, that party shall: Rules of the Workers’ Compensation Court 25 24.5.322 (a) submit it by e-mail attachment by the date specified by the court; and (b) file the hard copy original at or before trial. (11) Any party participating in a deposition may make a simultaneous digital recording of the deposition. A party who intends to digitally record a deposition shall notify all parties. If a party proposes to offer the digitally recorded deposition for the court's consideration, that party shall provide a copy to the court in DVD format, labeled with the name of the case and the name or names of all witnesses whose depositions are contained on the digitally recorded deposition. A party filing a digitally recorded deposition with the court shall also provide a transcript prepared by the court reporter who attended the deposition. (12) A party may take a deposition upon written questions. The party taking the deposition shall give reasonable notice to all other parties of the name and address of the person who is to answer the questions and the name or descriptive title and address of the officer before whom the deposition is to be taken. Within the time set forth in ARM 24.5.320 after service of the notice and written questions, a party may serve cross- questions upon all other parties. Thereafter, within the time set forth in ARM 24.5.320, a party may serve redirect questions upon all other parties. Within the time set forth in ARM 24.5.320 after the service of the redirect questions, a party may serve recross- questions upon all other parties. (History: 2-4-201, MCA; IMP, 2-4-201, 39-71-2901, MCA; NEW, 1983 MAR p. 1715, Eff. 11/26/83; TRANS, from ARM 2.52.322, 1989 MAR p. 2177, Eff. 12/22/89; AMD, 1990 MAR p. 847, Eff. 5/1/90; AMD, 1994 MAR p. 675, Eff. 4/1/94; AMD, 2014 MAR p. 2829, Eff. 3/1/15; AMD, 2018 MAR p. 305, Eff. 3/15/18.) 24.5.323 INTERROGATORIES (1) A party may serve written interrogatories upon an adverse party either with the petition or at any time after the service of a petition. If a party wishes to serve interrogatories with the petition, the party shall furnish sufficient copies to the court for service with the petition. (2) The party upon whom the interrogatories have been served shall serve a copy of the answers on the party submitting the interrogatories within the time set forth in ARM 24.5.320, unless the court lengthens or shortens the time. Answers must not be due in less than 30 days from the service of the petition. (3) If the interrogatories are propounded upon the claimant or any other party who is a natural person, then the party shall sign the answers under oath. If the party is the insurer or other entity which is not a natural person, then the party's attorney or other representative of the party may sign the answers and such answers need not be verified. Whether or not verified, the signature of the person signing the answers constitutes a certification that the answers are complete and truthful to the best of the signor's knowledge. Rules of the Workers’ Compensation Court 26 24.5.323 (4) If the answers to interrogatories are made on behalf of an insurer or some other party which is not a natural person, the party propounding the interrogatories may, after receiving the answers, request that the answers be verified, under oath, by the person employed by the insurer or party, other than an attorney for the insurer or party, having the most knowledge of the subject matters mentioned in the interrogatories. The request must be made in writing but need not be filed with the court. Within the time set forth in ARM 24.5.320, the insurer or other party shall provide the requested verification. (5) Proof of service of interrogatories and answers thereto must be filed with the court simultaneously with the service of discovery on the other party. Interrogatories and answers thereto must not be filed except by leave of court. When a motion is filed making reference to an interrogatory answer, the party filing the motion shall also submit the interrogatory and interrogatory answer to which reference is made. Answers to interrogatories may be used at trial to the extent allowed by the Montana Rules of Evidence and the Montana Rules of Civil Procedure. (6) No party shall serve on any other party more than 20 interrogatories in the aggregate, inclusive of subparts. Subparts of any interrogatories must relate directly to the subject matter of the interrogatory. Any party desiring to serve additional interrogatories must file a written motion setting forth the proposed additional interrogatories and the reasons establishing the necessity for their use. (7) Each interrogatory must be answered separately and fully in writing under oath unless it is objected to, in which event the reasons for objection must be stated in lieu of an answer. Objections may be made because of annoyance, expense, embarrassment, oppression, irrelevance, or other good cause. Objections must be signed by the party making them. The party answering the interrogatories shall set forth a verbatim recopy of each of the interrogatories, followed by the answer or objection thereto. (8) The court will, except in extraordinary circumstances, sustain objections to numerous and complex interrogatories which are not limited to the important facts of the case and which are concerned with numerous minor details. (9) An interrogatory is not objectionable merely because it is phrased in the form of a request for admission. (History: 2-4-201, MCA; IMP, 2-4-201, 39-71-2901, MCA; NEW, 1983 MAR p. 1715, Eff. 11/26/83; TRANS, from ARM 2.52.323, 1989 MAR p. 2177, Eff. 12/22/89; AMD, 1990 MAR p. 847, Eff. 5/1/90; AMD, 1992 MAR p. 921, Eff. 5/1/92; AMD, 1994 MAR p. 675, Eff. 4/1/94; AMD, 1998 MAR p. 1281, Eff. 5/15/98; AMD, 2014 MAR p. 2829, Eff. 3/1/15.) 24.5.324 REQUEST FOR PRODUCTION (1) A party may serve a request for production upon an adverse party either with the petition or at any time after the service of a petition. If a party wishes to serve a request for production with the petition, the party shall furnish sufficient copies to the court for service with the petition. The request may be: Rules of the Workers’ Compensation Court 27 24.5.324 (a) to produce and permit the party making the request, or the party's agent, to inspect and copy any designated documents or records, or to copy, test, or sample any tangible things, which may be relevant and which are in the possession, custody, or control of the party upon whom the request is served; or (b) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the limits of relevancy. (2) Proof of service of requests for production and responses thereto must be filed with the court simultaneously with the service of discovery on the other party. Requests for production and answers thereto must not be filed except by leave of court. When a motion is filed making reference to a request for production, the party filing the motion shall also submit the request for production, the response thereto, and the documents produced pursuant to the response. Requests for production and responses thereto may be used at trial to the extent allowed by the Montana Rules of Evidence and the Montana Rules of Civil Procedure. (3) The party upon whom a request for production is served shall serve a written response within the time set forth in ARM 24.5.320 unless the court lengthens or shortens the time. A response must not be due in less than 30 days from the service of the petition. The response must state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection must be stated. For a partial objection, the part subject to objection must be specified. (4) If the request is for production of the file of a party and objection is made to such production on the grounds of privilege or work product, the objecting party shall produce all documents other than those specific documents which are subject to objection. Where the objection is only to part of a document, the document must be produced with the portions subject to objection redacted. The objecting party shall also provide in its response a list of documents which are subject to objections, specifically identifying: (a) the type of document; (b) the number of pages of the document; (c) the general subject matter of the document; (d) the date of the document; (e) where the document is a communication, the author of the document, the address of the author, and the relationship of the author and the addressee; Rules of the Workers’ Compensation Court 28 24.5.324 (f) whether the objection extends to the entire document or only to portions of the document; and (g) the specific privilege, including work product, which is being claimed as to each document. (5) Where the objecting party asserts that this minimal information would encroach upon the attorney-client privilege or the work product doctrine, the party must state how disclosure of the information would violate the privilege or doctrine. (6) The court rules upon objections based on claims of attorney-client privilege or work product only upon the filing of a motion to compel, at which time the following procedure applies: (a) along with the response brief, the objecting party shall furnish the court with a copy of the original response to the request for production and the original or a copy of all documents which are identified in the motion to compel; (b) where only parts of the document are subject to an objection, the objecting party shall identify those parts; and (c) the court will review the documents in camera and sustain or overrule each objection. (7) If the request is intended to obtain the production of documents which are not in the adverse party's possession but are within the adverse party's custody or control, unless otherwise ordered by the court, the adverse party may, in lieu of providing the documents, provide an authorization or a release as necessary to obtain such documents from all persons or entities physically possessing the documents. (History: 2-4-201, MCA; IMP, 2-4-201, 39-71-2901, MCA; NEW, 1983 MAR p. 1715, Eff. 11/26/83; TRANS, from ARM 2.52.324, 1989 MAR p. 2177, Eff. 12/22/89; AMD, 1990 MAR p. 847, Eff. 5/1/90; AMD, 1994 MAR p. 675, Eff. 4/1/94; AMD, 1996 MAR p. 557, Eff. 2/23/96; AMD, 2014 MAR p. 2829, Eff. 3/1/15.) 24.5.325 LIMITING DISCOVERY (1) Upon motion by a party or by the person from whom discovery is sought, and for good cause, the court may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (a) that the party seeking discovery may not have it; (b) that the party seeking discovery may only have it on specified terms and conditions, including a designation of the time or place; (c) that the party seeking discovery may only have it by a method of discovery other than that selected by the party seeking discovery; Rules of the Workers’ Compensation Court 29 24.5.325 (d) that the party seeking discovery may not inquire into certain matters, or that the party seeking discovery may have it limited to certain matters; (e) that the party seeking discovery shall conduct it with no one present except persons designated by the court; (f) that a party may only open a deposition the court has sealed by order by further order of the court; (g) that a person from whom discovery is sought need not disclose a trade secret or other confidential research, development, or commercial information, or that the person need only disclose it in a designated way; (h) that the parties shall file specified documents simultaneously or shall enclose information in sealed envelopes to be opened as directed by the court. (2) If the court denies the motion for a protective order in whole or in part, the court may, on terms and conditions as are just, order that any party or person provide or permit discovery. (History: 2-4-201, MCA; IMP, 2-4-201, 39-71-2901, MCA; NEW, 1983 MAR p. 1715, Eff. 11/26/83; TRANS, from ARM 2.52.325, 1989 MAR p. 2177, Eff. 12/22/89; AMD, 1994 MAR p. 675, Eff. 4/1/94; AMD, 2014 MAR p. 2829, Eff. 3/1/15; AMD, 2018 MAR p. 305, Eff. 3/15/18.) 24.5.326 FAILURE TO MAKE DISCOVERY -- SANCTIONS (1) If a party fails to respond to discovery pursuant to these rules, or makes evasive or incomplete responses to discovery, or objects to discovery, the party seeking discovery may move for an order compelling responses. With respect to a motion to compel discovery, the court may, at the request of a party or upon its own motion, impose such sanctions as it deems appropriate. Such sanctions include but are not limited to awarding the prevailing party attorney fees and reasonable expenses incurred in obtaining the order or in opposing the motion. The court imposes sanctions against the non-prevailing party unless the party's position with regard to the motion to compel was substantially justified or other circumstances make sanctions unjust. If the party fails to make discovery following issuance of an order compelling responses, the court may order such sanctions as it deems just under the circumstances. Prior to any imposition of sanctions, the court provides the party who may be sanctioned with the opportunity for a hearing. (History: 2-4-201, MCA; IMP, 2-4-201, 39-71-2901, MCA; NEW, 1983 MAR p. 1715, Eff. 11/26/83; TRANS, from ARM 2.52.326, 1989 MAR p. 2177, Eff. 12/22/89; AMD, 1994 MAR p. 27, Eff. 1/14/94; AMD, 1998 MAR p. 1281, Eff. 5/15/98; AMD, 2014 MAR p. 2829, Eff. 3/1/15.) Rules of the Workers’ Compensation Court 30 24.5.327 24.5.327 DEFAULT (1) If a party required to file a responsive pleading under these rules fails to file a responsive pleading within the time specified, or otherwise fails to defend, the court at the request of the petitioner or upon its own motion issues an order providing that the party shall file a responsive pleading within the time ordered by the court. If the party fails to respond to the court's order within the time specified, the court orders the party to appear before the court at a specified date, time, and place to show cause why the court should not find the party in default and grant relief in accordance with the petition. The court serves the order by mail if upon an insurer, otherwise by certified mail or through personal service as directed by and at the discretion of the court. (2) If the party fails to file a responsive pleading within the time provided and fails to appear at the show cause hearing, the court enters a default judgment against the party. (3) If any party fails to comply with any order of the court, the court may, after notice and hearing, enter a default judgment against the party. (4) If, to enable the court to enter judgment or to carry it into effect, the court deems it necessary to inquire into amounts of benefits or other matters, the court conducts a hearing into those matters. (5) A party shall base any request for relief from default judgment upon good cause, such as mistake, inadvertence, surprise, or excusable neglect, and file it within the time set forth in ARM 24.5.320. (History: 2-4-201, 39-71-2901, 39-71-2903, 39-71-2905, MCA; IMP, 2-4-201, 39-71-2901, MCA; NEW, 2000 MAR p. 1513, Eff. 6/16/00; AMD, 2014 MAR p. 2829, Eff. 3/1/15; AMD, 2018 MAR p. 305, Eff. 3/15/18.)