Subchapter E. DISCOVERY DURING INVESTIGATION AND IN PREPARATION FOR PUBLIC HEARING
Sec.
42.41. Initiation of investigation.
42.42. Authorization to employ discovery measures.
42.43. Oral interviews and other investigations.
42.44. Interrogatories.
42.45. Answers to interrogatories.
42.48. Issuance of subpoenas.
42.49. Service of subpoenas.
42.50. Enforcement of subpoenas.
42.51. Depositions.
42.53. Use of depositions at hearings.
42.54. Production of documents and things and entry for inspection and other purposes.
42.55. Requests for admissions.
42.56. Protective orders.
42.57. Scope of discovery of the Commission’s records, documents and other information relating to a complaint.
42.58. Exemptions from discovery.
Cross References This subchapter cited in 16 Pa. Code § 42.131 (relating to Motions Commissioners and Motions Examiners).
§ 42.41. Initiation of investigation.
(a) Upon filing of a complaint or when there is reason to believe that an unlawful discriminatory practice has been committed, the Commission staff will make a prompt investigation in connection therewith.
(b) When a complaint contains one or more allegations under section 5(h) or 5.3 of the act (43 P. S. § § 955(h) and 955.3), involving unlawful housing discrimination cognizable under the Fair Housing Act, or under section 5(d) or (e) of the act, if the underlying or supporting action involves unlawful housing discrimination cognizable under the Fair Housing Act, the investigation concerning those allegations shall be commenced within 30 days and completed within 100 days after the filing of the complaint, unless it is impracticable to do so, in which case the Commission will notify the parties in writing of the reasons for not doing so.
(c) Investigations conducted by the Commission prior to the approval of a public hearing on the merits of a complaint will be conducted by the Commission staff, who may employ the discovery measures in this subchapter.
Source The provisions of this § 42.41 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; corrected August 20, 1976, effective August 14, 1976, 6 Pa.B. 1985; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909; amended December 17, 1993, effective December 18, 1993, 23 Pa.B. 5897. Immediately preceding text appears at serial page (156356).
Notes of Decisions It is the Commission staff, and not the Commissioners, which is the body vested with the responsibility for determining whether probable cause exists and conducting conference and conciliation meetings. The court, therefore, determined that the Commission, which acts as the ultimate finder of fact, did not improperly commingle its prosecutorial and adjudicatory functions and deprive the company of its due process rights. George Clay Steam Fire Engine and Hose Co. v. Human Relations Commission, 639 A.2d 893 (Pa. Cmwlth. 1994); appeal denied 656 A.2d 120 (Pa. 1995).
§ 42.42. Authorization to employ discovery measures.
(a) Prior to the approval of a public hearing on the merits of a complaint, and except as may otherwise be permitted by a preliminary hearing officer as necessary or appropriate for the parties to prepare for a preliminary hearing, the discovery measures in this subchapter may be employed only by the staff.
(b) After the approval of a public hearing on the merits of a complaint, the discovery measures in this subchapter may be employed by the staff, by the complainant if he is not represented by staff counsel under § 42.106 (relating to attorney or designated agent of complainant; forms) and by the respondent.
(c) Except as limited by subsections (a) and (b), this subchapter will not be construed to prohibit the voluntary use of any discovery measure that may be agreed upon by all persons affected thereby, without need to apply to the Commission therefor. All parties shall attempt, in good faith, to engage in voluntary discovery prior to the making of an application.
(d) Subsection (a) supersedes 1 Pa. Code § § 35.142 and 35.145 (relating to subpoenas; and depositions).
(e) Subsection (b) supplements 1 Pa. Code § § 35.142—35.152 (relating to subpoenas; and depositions).
Source The provisions of this § 42.42 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; amended July 24, 1981, effective July 25, 1981, 11 Pa.B. 2608; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909. Immediately preceding text appears at serial page (84182).
Cross References This section cited in 16 Pa. Code § 42.44 (relating to interrogatories); 16 Pa. Code § 42.48 (relating to issuance of subpoenas); 16 Pa. Code § 42.51 (relating to depositions); and 16 Pa. Code § 42.54 (relating to production of documents and things and entry for inspection and other purposes).
§ 42.43. Oral interviews and other investigations.
(a) The Commission staff may interview all persons whose statements may provide information concerning the allegations of the complaint.
(b) Upon initiation of an investigation, the Commission may require the production of all documents, information, records, files or other materials necessary to determine facts relevant to the allegations of the complaint.
(c) The Commission staff may require any person to make available information, in the form of documents, records, files or other materials for inspection, copying or photographing during the Commission investigation.
Source The provisions of this § 42.43 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; corrected August 20, 1976, effective August 14, 1976, 6 Pa.B. 1985; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909. Immediately preceding text appears at serial page (84182).
§ 42.44. Interrogatories.
(a) As authorized in § 42.42 (relating to authorization to employ discovery measures), written interrogatories may be served upon any person to be answered in writing by the person served or other authorized personnel. Interrogatories served upon a public or private corporation, partnership or association shall be answered by an officer or agent who is authorized to furnish the requested information.
(b) Supplemental interrogatories or sets of interrogatories may be served.
Source The provisions of this § 42.44 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909. Immediately preceding text appears at serial page (30111).
§ 42.45. Answers to interrogatories.
Answers to interrogatories may be filed. If filed, they shall conform to the following rules:
(1) Each interrogatory shall be answered separately and fully in writing.
(2) The answers to a set of interrogatories shall be properly executed as provided in 1 Pa. Code § 33.11 (relating to execution).
(3) The recipient of the interrogatory shall serve a copy of the answers to the interrogatories upon the Commission or other requesting party within 20 days after service of the interrogatories.
Source The provisions of this § 42.45 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909. Immediately preceding text appears at serial page (30111).
§ 42.48. Issuance of subpoenas.
(a) As authorized in § 42.42 (relating to authorization to employ discovery measures), a request for a subpoena for documents or things shall be submitted to a motions commissioner or presiding officer specifying in writing the books, papers, documents or other material desired and setting forth the general relevance, materiality and scope of the evidence sought therefrom. The Commissioner or officer may thereafter sign and cause the subpoena to be issued for service.
(b) As authorized in § 42.42, a request for the issuance of a subpoena for testimony to require attendance at a deposition or hearing shall be submitted to a motions commissioner or presiding officer specifying in writing the general relevance, materiality and scope of the evidence sought from the testimony. The Commissioner or officer may thereafter sign and cause the subpoena to be issued for service.
(c) A person upon whom a subpoena is served shall file objections, in writing, within the time specified for compliance with the subpoena, except that the time may be extended by the motions commissioner or presiding officer if justice requires. The objections will be reviewed by the Commissioner or officer, who will rule thereon.
(d) Subsections (a)—(c) supersede 1 Pa. Code § 35.142(a) (relating to subpoenas).
Source The provisions of this § 42.48 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909. Immediately preceding text appears at serial page (30112).
Cross References This section cited in 16 Pa. Code § 42.51 (relating to depositions); and 16 Pa. Code § 42.103 (relating to subpoena for a hearing upon the merits).
§ 42.49. Service of subpoena.
(a) A subpoena may be served by any adult member of the staff not a party to the proceeding, or by another adult, not a party to the proceeding, who is so authorized by the issuer of the subpoena.
(b) A subpoena will be served by exhibiting the original subpoena and handing a copy of the subpoena to one of the following:
(1) To the person designated for service.
(2) At the residence of the person designated for service, to an adult member of the family with which the designated person resides; but if no adult member of the family is found then to an adult in charge of the residence.
(3) At any office or usual place of business of the person designated for service, to the designated person’s agent or the person for the time being in charge thereof.
(c) The return of service of a subpoena issued shall include:
(1) The time, place and manner of service.
(2) The signature of the person serving the subpoena.
(d) The original subpoena, bearing or accompanied by the authorized return, shall be returned to the Commission.
(e) Subsections (a)—(d) supersede 1 Pa. Code § 35.142(b) (relating to subpoenas).
Source The provisions of this § 42.49 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909. Immediately preceding text appears at serial pages (30112) and (84183).
Cross References This section cited in 16 Pa. Code § 42.103 (relating to subpoena for a hearing upon the merits).
§ 42.50. Enforcement of subpoenas.
A subpoena issued by the Commission, at the request of the Commission staff, may be enforced by staff counsel by petition to the appropriate court or district attorney, or both. Any other subpoena issued by the Commission may be enforced by the party requesting the subpoena by petition to the appropriate court.
Source The provisions of this § 42.50 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909. Immediately preceding text appears at serial page (84183).
Cross References This section cited in 16 Pa. Code § 42.51 (relating to depositions); 16 Pa. Code § 42.54 (relating to production of documents and things and entry for inspection and other purposes); and 16 Pa. Code § 42.103 (relating to subpoena for a hearing upon the merits).
§ 42.51. Depositions.
(a) As authorized in § 42.42 (relating to authorization to employ discovery measures), application for permission to take a deposition may be made to a motions commissioner or motions examiner as provided in 1 Pa. Code § 35.146 (relating to notice and application). If the application so warrants, the Commissioner or examiner will issue and serve the authorization as provided in 1 Pa. Code § 35.147 (relating to authorization of taking deposition).
(b) Attendance of the person to be examined by deposition may be compelled by the use of a subpoena as provided in § § 42.48 and 42.50 (relating to issuance of subpoenas; and enforcement of subpoenas).
(c) If a deponent to be examined at a deposition refuses to be sworn or to answer a question, the deposition shall be completed on other matters or adjourned, as the proponent of the swearing or question may prefer. Thereafter, upon reasonable notice and opportunity for reply to all persons affected thereby, the proponent may apply to a motions commissioner or examiner for an order compelling the witness to be sworn or to answer a question, in whole or in part, which order may be enforced as with a subpoena under § 42.50.
(d) Subsection (a) supplements 1 Pa. Code § § 35.145—35.150 (relating to depositions).
Source The provisions of this § 42.51 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909. Immediately preceding text appears at serial page (84183).
§ 42.53. Use of depositions at hearings.
(a) At the hearing, any part or all of the deposition, so far as otherwise admissible, may be used against any party who was present or represented at the taking of the deposition, or who had notice thereof if required, in accordance with one or more of the following provisions:
(1) A deposition may be used by any party for the purpose of contradicting or impeaching the testimony of a deponent as a witness.
(2) The deposition of a party or of any one who at the time of taking the deposition was an officer, director or managing agent of a party may be used by an adverse party for any purpose.
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the hearing commissioners or permanent hearing examiner finds one of the following:
(i) That the witness is dead.
(ii) That the witness is at a greater distance than 100 miles from the place of the hearing or is outside this Commonwealth, unless it appears that the absence of the witness was procured by the party offering the deposition.
(iii) That the witness is unable to attend or testify because of age, sickness, infirmity or imprisonment.
(iv) That the party offering the deposition has been unable to procure the attendance of the witness by subpoena.
(v) Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with regard to the importance of presenting the testimony of witnesses orally at hearing, to allow the deposition to be used.
(4) If only part of a deposition is offered in evidence by a party, an adverse party may require that party to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.
(b) Substitution of parties does not affect the right to use depositions previously taken, and, when an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken in the former action may be used in the latter as if originally taken therefor.
(c) Subject to subsection (a), objection may be made at the hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.
(d) A party will not be deemed to make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or a part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this does not apply to the use by an adverse party of a deposition as described in subsection (a)(2). At the hearing, any party may rebut any relevant evidence contained in a deposition.
(e) Subsections (a)—(d) supersede 1 Pa. Code § 35.151 (relating to status of deposition as part of record).
Source The provisions of this § 42.53 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; corrected August 20, 1976, effective August 14, 1976, 6 Pa.B. 1985; amended October 28, 1983, effective October 29, 1983, 13 Pa.B. 3283; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909. Immediately preceding text appears at serial page (84184).
§ 42.54. Production of documents and things and entry for inspection and other purposes.
(a) As authorized in § 42.42 (relating to authorization to employ discovery measures), application may be made to a motions commissioner or motions examiner for one or more of the following:
(1) Production of and permission to inspect and copy, test or sample documents (including writings, drawings, graphs, charts, photographs, phonograph records, computer data and other compilations of data from which information may be obtained, translated, if necessary, by the party from whom production is sought into reasonably usable form), other materials or tangible things which are in the possession, custody or control of the party from which production is sought.
(2) To permit entry upon designated land or other property in the possession or control of the party from whom production is sought for the purpose of inspecting and measuring, surveying, photographing, testing, sampling or otherwise examining the property or any designated object or operation thereon.
(b) The application shall set forth the documents, materials, tangible things, land or property to be inspected with sufficient particularity to allow a determination of their general relevance to the proceedings and shall specify a reasonable time, place and manner of making the inspection and performing the related acts. A copy of the application shall be served upon the party from whom production is sought, who shall file in writing any objections to the application within 15 days after service of the application and who may file a motion for a protective order as provided in § 42.56 (relating to protective orders).
(c) If the application so warrants, the motions commissioner or motions examiner will issue and serve an authorization specifying the time, place and manner of making the inspection and performing the related acts, which may or may not be the same as those specified in the application. This authorization will be enforceable as with a subpoena under § 42.50 (relating to enforcement of subpoenas).
Source The provisions of this § 42.54 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; amended October 28, 1983, effective October 29, 1983, 13 Pa.B. 3283; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909. Immediately preceding text appears at serial pages (84184) to (84185).
§ 42.55. Requests for admissions.
(a) After the approval of the hearing on the merits of a complaint, any party may send to another party a written request for the admission of the truth of a matter or of the authenticity of any writing, document or record, a copy of which is attached to the request, relevant to the pending proceeding.
(b) Matters referred to in subsection (a) will be deemed admitted unless within 20 days after service of the request the recipient serves upon the requesting party a sworn and properly executed answer admitting, denying or objecting to each item.
(c) Reasons for all objections shall be stated.
(d) All that is not denied in an answer shall be deemed to be admitted. If an answer reads ‘‘denied in part’’ or ‘‘admitted in part’’, the answer shall also state with specificity that which is denied and that which is admitted.
(e) Upon motion by a party requesting admissions, a motions commissioner or a motions examiner will determine if the answer complies with this section. The motions commissioner or motions examiner may order that the matter is admitted or denied or that the request or answer shall be amended as the circumstances warrant.
Source The provisions of this § 42.55 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; amended October 28, 1983, effective October 29, 1983, 13 Pa.B. 3283; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909. Immediately preceding text appears at serial page (84185).
§ 42.56. Protective orders.
(a) Upon motion by the staff, by a party or by the person from whom discovery is sought, the Commission may issue any order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, burden or expense.
(b) When a motion for a protective order is denied in whole or in part, the Commission may, upon terms and conditions as are just, order that the party or persons provide or permit discovery.
Source The provisions of this § 42.56 adopted April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909.
Cross References This section cited in 16 Pa. Code § 42.54 (relating to production of documents and things and entry for inspection and other purposes).
§ 42.57. Scope of discovery of the Commission’s records, documents and other information relating to a complaint.
The staff of the Commission will not be examined either by interrogatory or deposition except when leave to undertake the examination is granted by the Commission, a motions commissioner, or a motions examiner upon petition alleging that one of the following exists:
(1) The staff person has direct personal knowledge of evidence relevant to the proceeding other than evidence gathered as a result of investigation.
(2) For other reasons which shall be set forth with particularity, justice requires that the petition be granted.
(3) Discovery has revealed that the staff person will be called as a witness.
Source The provisions of this § 42.57 adopted April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909.
§ 42.58. Exemptions from discovery.
(a) Information which is exempt from discovery includes, but is not limited to, the following:
(1) A record, report, memorandum or communication dealing with the internal practice, policy and procedure of the Commission.
(2) A record, report, memorandum or communication of the staff or a staff meeting regarding the institution, progress or result of an investigation of a complaint or regarding matters prepared in anticipation of a hearing.
(3) A report, record, memorandum or communication regarding any endeavor to eliminate the unlawful discriminatory practice complained of by conference, conciliation or persuasion.
(4) The work product of an investigator or other staff member made in the course of an investigation of a complaint or in anticipation of or in preparation for a hearing on the complaint or a report, record, memorandum or communication made by the staff during the investigation of a complaint or in anticipation of or in preparation for a hearing on the complaint which is otherwise privileged.
(5) A memorandum, statement or mental impression prepared or obtained by a staff attorney.
(6) The identity of confidential informants and sources.
(b) Objections of a party to the Commission staff’s assertion of an exemption during prehearing discovery, under subsection (a), shall be made under the enforcement procedures of the particular discovery measure involved, as provided for in this chapter. The Commission will rule upon the objections and may, where justice requires, order that the exemption be waived, in whole or in part, and that appropriate discovery occur.
Source The provisions of this § 42.58 adopted April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909.
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