- (a) General. A party may depose a witness to preserve testimony only if the ALJ determines that the party has met the criteria set forth in paragraph (b) of this section and authorizes the deposition in a written order or during a prehearing conference. Authorization of depositions for discovery purposes is governed by § 4.1031.
(b) Criteria.
(1) The ALJ may authorize a deposition to preserve testimony only if the party shows that the witness:
- (i) Will be unable to attend the hearing because of age, illness, or other incapacity; or
- (ii) Is unwilling to attend the hearing voluntarily, and the party is unable to compel the witness's attendance at the hearing by subpoena.
- (2) Paragraph (b)(1)(ii) of this section does not apply to any person employed by or under contract with the party seeking the deposition.
(3) A party may depose a senior Department employee of OFA only if the party shows:
- (i) That the employee's testimony is necessary in order to provide significant, unprivileged information that is not available from any other source or by less burdensome means; and
- (ii) That the deposition would not significantly interfere with the employee's ability to perform his or her official duties.
(c) Motion and notice. A party seeking the ALJ's authorization to take a deposition to preserve testimony must file a motion which explains how the criteria in paragraph (b) of this section have been met and states:
- (1) The time and place that the deposition is to be taken;
- (2) The name and address of the person before whom the deposition is to be taken;
- (3) The name and address of the witness whose deposition is to be taken; and
- (4) Any documents or materials that the witness is to produce.