Discovery in Administrative Proceedings: Scope, Procedures, and Limitations

This comprehensive guide explores the scope, procedures, and limitations of discovery in administrative proceedings, offering practitioners essential insights and best practices for navigating this critical phase effectively.

Discovery is a critical phase in administrative proceedings, allowing parties to obtain evidence and information necessary to support their claims or defenses. This guide provides a comprehensive overview of the scope, procedures, and limitations of discovery in administrative proceedings, drawing on authoritative sources and legal statutes.


Discovery in administrative proceedings serves to ensure fairness and transparency by allowing parties to gather relevant information. Unlike discovery in civil litigation, discovery in administrative proceedings is governed by specific rules and regulations that vary depending on the agency and the type of proceeding.

Scope of Discovery

General Principles

The scope of discovery in administrative proceedings is generally broad, allowing parties to obtain information that is relevant to the issues in the case. However, it is subject to certain limitations to prevent abuse and protect sensitive information.

Relevant Statutes and Regulations

  1. Federal Rules of Civil Procedure, Rule 26: Rule 26 outlines the general provisions governing discovery, including the scope and limits. It is often referenced in administrative proceedings to provide a framework for discovery practices.

  2. Administrative Procedure Act (APA): The APA provides the foundational framework for administrative proceedings, including provisions related to discovery.

  3. Code of Federal Regulations (CFR): Various sections of the CFR outline specific discovery rules for different agencies. For example, 29 CFR 2570.96 and 29 CFR 2571.7 detail the scope of discovery for certain labor-related proceedings.

Types of Discoverable Information

  1. Documents and Records: Parties can request the production of documents and records that are relevant to the case.
  2. Depositions: Witnesses can be deposed to obtain testimony under oath.
  3. Interrogatories: Written questions that must be answered under oath.
  4. Requests for Admissions: Requests for the other party to admit the truth of certain facts.
  5. Physical and Mental Examinations: In some cases, parties may request physical or mental examinations of individuals.

Procedures for Discovery

Initiating Discovery

Discovery typically begins after the initial pleadings have been filed and the issues in the case have been defined. The procedures for initiating discovery vary depending on the agency and the type of proceeding.

Discovery Requests

  1. Document Requests: Parties can request specific documents or categories of documents. The requesting party must describe the documents with reasonable particularity.
  2. Interrogatories: Parties can serve written questions on the other party, which must be answered in writing and under oath.
  3. Depositions: Parties can schedule depositions of witnesses, where the witness provides testimony under oath before a court reporter.
  4. Requests for Admissions: Parties can request the other party to admit the truth of certain facts, which can simplify the issues in the case.

Responding to Discovery Requests

  1. Timeliness: Parties must respond to discovery requests within the time frame specified by the rules or the administrative law judge (ALJ).
  2. Objections: Parties can object to discovery requests on various grounds, such as relevance, privilege, or undue burden.
  3. Motions to Compel: If a party fails to respond to a discovery request, the requesting party can file a motion to compel, asking the ALJ to order the other party to comply.

Protective Orders

Protective orders can be issued to protect sensitive information from being disclosed during discovery. Parties can request protective orders to limit the scope of discovery or to protect confidential information.

Limitations on Discovery

Relevance and Proportionality

Discovery is limited to information that is relevant to the issues in the case and proportional to the needs of the case. The ALJ has discretion to limit discovery to prevent undue burden or expense.

Privileges and Protections

Certain information is protected from discovery by legal privileges, such as attorney-client privilege, work product doctrine, and other statutory protections.

Confidential and Sensitive Information

Sensitive information, such as trade secrets, personal data, and classified information, may be subject to additional protections. Parties can request protective orders to safeguard such information.

Agency-Specific Limitations

Different agencies have specific rules and limitations on discovery. For example, the Federal Trade Commission (FTC) and the Equal Employment Opportunity Commission (EEOC) have their own discovery rules that may differ from general civil litigation practices.

Case Law and Precedents

Key Cases

  1. Hickman v. Taylor, 329 U.S. 495 (1947): This landmark case established the work product doctrine, which protects materials prepared by attorneys in anticipation of litigation from discovery.
  2. Upjohn Co. v. United States, 449 U.S. 383 (1981): This case expanded the scope of attorney-client privilege to include communications between corporate employees and corporate counsel.

Administrative Decisions

Administrative decisions and opinions from ALJs and agency appellate bodies provide guidance on the application of discovery rules in specific contexts. These decisions can be valuable resources for understanding how discovery rules are interpreted and applied in practice.

Practical Tips for Practitioners

Preparing for Discovery

  1. Early Case Assessment: Conduct an early assessment of the case to identify key issues and potential sources of evidence.
  2. Document Preservation: Implement a document preservation plan to ensure that relevant evidence is not lost or destroyed.
  3. Discovery Plan: Develop a comprehensive discovery plan that outlines the scope, timing, and methods of discovery.

Managing Discovery

  1. Organization: Keep discovery materials organized and easily accessible.
  2. Communication: Maintain open communication with opposing counsel to address discovery issues and avoid disputes.
  3. Compliance: Ensure timely and complete responses to discovery requests to avoid sanctions.

Addressing Discovery Disputes

  1. Meet and Confer: Attempt to resolve discovery disputes through informal discussions with opposing counsel.
  2. Motions Practice: If disputes cannot be resolved informally, file appropriate motions, such as motions to compel or motions for protective orders.
  3. ALJ Involvement: Seek guidance from the ALJ on complex or contentious discovery issues.


Discovery in administrative proceedings is a vital process that enables parties to gather the evidence necessary to support their claims and defenses. Understanding the scope, procedures, and limitations of discovery is essential for practitioners to effectively navigate administrative proceedings. By adhering to the relevant rules and regulations, and employing best practices, parties can ensure a fair and efficient discovery process.


  1. Rule 26 of the Federal Rules of Civil Procedure
  2. Administrative Procedure Act (5 U.S.C. Subchapter II)
  3. 29 CFR 2570.96 - Scope of Discovery
  4. 29 CFR 2571.7 - Scope of Discovery
  5. Discovery in Agency Adjudication
  6. Discovery in Administrative Adjudicative Procedures

This guide aims to provide a thorough understanding of discovery in administrative proceedings, helping practitioners navigate this complex area of law effectively.

About the author
Von Wooding

Von Wooding

Helpful legal information and resources

Counsel Stack Learn

Free and helpful legal information

Counsel Stack Learn

Great! You’ve successfully signed up.

Welcome back! You've successfully signed in.

You've successfully subscribed to Counsel Stack Learn.

Success! Check your email for magic link to sign-in.

Success! Your billing info has been updated.

Your billing was not updated.