Conduct of Adjudication

(1) Procedural Conferences. (a) The Presiding Officer may schedule a procedural conference, either on his or her own initiative or upon written request by a party. (b) At a procedural conference the following matters may be considered: 1. the schedule for the proceeding; 2. simplification and limitation of issues; and 3. such other matters as will aid in the efficiency of the proceeding. (c) Unless the Presiding Officer has approved a stipulation to the contrary, statements made by any Person at a procedural conference shall not be evidence in the proceeding or in any subsequent proceeding. (2) Evidentiary Record. For every adjudicatory proceeding, there shall be an evidentiary record which shall include testimony as well as exhibits properly entered into evidence. An Applicant shall prepare and update a draft exhibit list identifying all exhibits filed in the proceeding, including a brief description of each exhibit and the date on which it was filed. The Applicant shall prepare a final exhibit list upon request of the Presiding Officer. (3) Motions. (a) Any party may request that the Presiding Officer take any action by filing a motion which clearly states the order or action sought and the grounds therefor. Such a motion may either be made during a hearing or timely filed in writing. The Presiding Officer may require any oral motion made to be reduced to writing. A copy of all motions made in writing or reduced to writing shall be served upon all parties in accordance with 980 CMR 1.03(3). (b) Unless the Presiding Officer directs otherwise, a party may file a written response to a written motion with the Presiding Officer within seven days after such motion is filed. The moving party may then file a written reply within seven days after such response is filed. Additional filings will be permitted at the discretion of the Presiding Officer only. (c) A party may request a hearing on the motion at the time the motion is filed or with a response or reply filed timely in accordance with 980 CMR 1.06(3)(b). It is within the Presiding Officer's discretion to determine whether a hearing on the motion is necessary. (d) Motions, except motions seeking intervention, responses to motions and replies to motions may be filed only by parties. (4) Evidence; Privileges. (a) All parties shall have the right to introduce both oral and documentary evidence. All witnesses shall testify under an oath or affirmation administered by the Presiding Officer and shall be subject to cross-examination. (b) Evidence shall be submitted in accordance with the schedule established by the Presiding Officer. Generally, parties will be required to submit documentary evidence, including exhibits and written direct testimony, in advance of evidentiary hearing. (c) The Presiding Officer shall be guided by, but need not observe, the rules of evidence observed by Massachusetts state courts. (d) The Board shall observe the rules of privilege recognized by law. (5) Discovery. Discovery is allowed at the discretion of the Presiding Officer. (a) Purpose. The purpose of discovery is to facilitate the hearing process by permitting the parties and the Board to gain access to all relevant information in an efficient and timely manner. Discovery is intended to reduce hearing time, narrow the scope of issues, protect the rights of the parties, and ensure that a complete and accurate record is compiled. (b) Rules Governing Discovery. In exercising their discretion, the Presiding Officer may be guided by the principles and the procedures underlying the Massachusetts Rules of Civil Procedure, Rule 26 et seq. Massachusetts Rules of Civil Procedure, Rule 26 et seq, however, shall be instructive, rather than controlling. (c) Information Requests. After the commencement of an adjudicatory proceeding, a party may serve written information requests, as permitted by the Presiding Officer, for the purpose of discovering relevant information. A party may serve information requests only during the time specified by the Presiding Officer. The Presiding Officer may, at their discretion, serve written information requests on any party to the proceeding. (d) Responses to Information Requests. Each information request shall be separately and fully answered under the penalties of perjury by the witness(es) who can testify during hearings regarding the content of the response, unless an objection to the information request with supporting reason is stated in lieu of a response. A response shall be served within 14 days of service of the information request, or within such other time as the Presiding Officer may specify. Responses shall be filed in the form specified by the Presiding Officer. (e) Motions to Compel Discovery. A party may move for an order to compel compliance with its discovery request. Unless otherwise permitted by the Presiding Officer for good cause shown, such motion shall be made no later than seven days after the deadline for responding to the request. If the Presiding Officer finds that a party has failed to comply in a reasonable manner with a legitimate discovery request without good cause, the Presiding Officer may, after issuance of an order compelling discovery, order whatever sanctions are deemed to be appropriate, including, but not limited to, suspending proceedings until the party has complied with the order or other appropriate sanctions listed in the Massachusetts Rules of Civil Procedure, Rule 37. Massachusetts Rules of Civil Procedure, Rule 37, however, shall be instructive, rather than controlling. A party's failure to file a motion to compel discovery in a timely manner, absent a showing of good cause, may result in a waiver of its right to compel the response. (f) Protective Orders. A request for a protective order shall be made by motion and shall include 1. a redacted version of the document to be filed with the service list; and 2. an unredacted version of the document filed separately with the Presiding Officer. Upon a request for protective treatment of documents and a showing that a protective order is necessary, the Presiding Officer may make an order to protect any such document(s). The Presiding Officer may be guided by the principles and the procedures underlying the Massachusetts Rules of Civil Procedure, Rule 26 et seq. Massachusetts Rules of Civil Procedure, Rule 26 et seq, however, shall be instructive, rather than controlling. Information that is protected by a statute shall automatically be protected from disclosure upon filing of a request. (g) Authentication. Unless otherwise directed by the Presiding Officer, prepared written testimony and discovery responses shall be authenticated by an affidavit of the witness at the time of filing. The Presiding Officer may allow prepared direct testimony or discovery responses of any witness to be offered as an exhibit and may omit oral presentation of the testimony. Copies of such proposed exhibit shall be served upon all Persons on the service list for the proceeding, at least seven days in advance of the session of the hearing at which such exhibit is to be offered. (h) Continuing Obligation to Supplement Answers. Each Party has a continuing obligation to supplement its information request responses and record request responses during the course of the proceeding if the Party later receives or generates new material information that also is responsive to the request and shall file a supplemental response containing that information. This obligation continues until the Board issues a final decision in the proceeding. (i) Incorporation by Reference. Any matter contained in any records, investigations, reports, and documents in the possession of the Board of which a Party or the Board desires to avail itself as evidence in making a decision, shall be offered and made a part of the record in the proceeding. Such records and other documents need not be produced or marked for identification, but may be offered in evidence by specifying the report, document, or other file containing the matter so offered. (6) Evidentiary Hearings. (a) Purpose. Evidentiary hearings will be held when required by law or at the discretion of the Presiding Officer in order to allow Board staff and parties to examine witnesses with respect to the content of their pre-filed testimony and any responses to relevant information requests. (b) Hearing Schedule. Prior to commencement of evidentiary hearings, the Presiding Officer shall notify all parties and limited participants, and any persons whose petitions to intervene or participate are pending, of the hearing schedule. The hearing schedule shall include the times, dates, place, and nature of the hearings. There may be multiple hearing dates and times during the course of a proceeding. Hearing dates and times may change. It is the responsibility of each party and limited participant to keep abreast of all changes to the hearing schedule. (c) Rescheduling. The Presiding Officer may grant a request to reschedule a hearing. A request for rescheduling should be made timely and in writing so as not to burden or delay the proceedings. (d) Location. The Presiding Officer may establish that evidentiary hearings are conducted virtually. Evidentiary hearings conducted in person shall be held at the Boston offices of the Board, unless a different location is designated by the Board or the Presiding Officer or a different location is required by statute. (e) Public Access. All evidentiary hearings of the Board shall be open to the public and the press to the extent required by law. (f) Off the Record Discussions. The Presiding Officer may go off the transcribed record during the course of any hearing for consultation among the parties if the Presiding Officer deems that such consultation would facilitate the conduct of the hearing. In the absence of a stipulation to the contrary, statements made by any Person during such consultation shall not be considered as evidence in the proceeding or any subsequent proceeding. (g) Record Requests. During the course of evidentiary hearings, the Presiding Officer or parties may ask witnesses to provide documents or written responses to questions asked at the hearing. Responses to record requests are written substitutes to oral answers where fault of memory, complexity of subject or lack of immediate access to documentation precludes a responsive answer by the witness in the hearing. Upon proper filing, responses to record requests become part of the record and the evidence, unless challenged as unresponsive and expunged in whole or part. Record requests shall not be used as a substitute for discovery. The ordinary time for response will be seven calendar days following the day on which the request is made. Objections to record requests shall be made at the time the request is made, and in no event later than the end of the next business day. Objections to the response given to a record request shall be made within seven days unless otherwise allowed by the Presiding Officer. (h) Transcript. 1. The Presiding Officer shall arrange for the hearing to be reported by a court reporter. The transcript shall be included in the evidentiary record of the proceeding. The Board will post a copy of the hearing transcript on its website as soon as practicable after the hearing. The Presiding Officer has discretion to order expedited preparation of transcripts as the needs of the case may warrant. 2. Any objections regarding the accuracy of the transcripts shall be brought to the attention of the Presiding Officer. Objections not raised within 30 days after the transcript is made available to the Parties shall be deemed to be waived. If the accuracy of the reporting of witness testimony is in question, the Presiding Officer may require an affidavit of the witness who gave such testimony or may require further inquiry. The cost of the transcript preparation shall be the responsibility of the Applicant, unless otherwise assumed by the Board. The cost of copies of the transcript shall be the responsibility of the Person requesting the copies.. (7) Matters for Official Notice. (a) Official notice may be taken in such matters as might be judicially noticed by the courts of the United States or of Massachusetts. The Presiding Officer also may take notice of general, technical, or scientific facts within the Board's specialized knowledge, provided that parties are afforded an opportunity to contest the matters of which official notice is to be taken. (b) Official notice also may be taken of any facts found in any other Board proceeding. In all circumstances where such notice is taken, the parties shall be afforded an opportunity to contest the matter of which official notice is to be taken. (c) Any party requesting that any fact be officially noticed must supply every party with a copy of the fact they are requesting to be noticed.