§ 308.106 - Written testimony in lieu of oral hearing.

§ 308.106 Written testimony in lieu of oral hearing.

(a) General rule.

(1) At any time more than fifteen 15 days before the hearing is to commence, on the motion of any party or on his or her the ALJ's own motion, the administrative law judge ALJ may order that the parties present part or all of their case-in-chief and, if ordered, their rebuttal, in the form of exhibits and written statements sworn to by the witness offering such statements as evidence, provided that if any party objects, the administrative law judge shall ALJ will not require such a format if that format would violate the objecting party's right under the Administrative Procedure Act, or other applicable law, or would otherwise unfairly prejudice that party.

(2) Any such order shall will provide that each party shallmust, upon request, have the same right of oral cross-examination (or redirect examination) as would exist had the witness testified orally rather than through a written statement. Such order shall must also provide that any party has a right to call any hostile witness or adverse party to testify orally.

(b) Scheduling of submission of written testimony.

(1) If written direct testimony and exhibits are ordered under paragraph (a) of this section, the administrative law judge shall ALJ will require that it be filed within the time period for commencement of the hearing, and the hearing shall will be deemed to have commenced on the day such testimony is due.

(2) Absent good cause shown, written rebuttal, if any, shall must be submitted and the oral portion of the hearing begun within 30 days of the date set for filing written direct testimony.

(3) The administrative law judge shall ALJ will direct, unless good cause requires otherwise, that—

(i) All parties shall must simultaneously file any exhibits and written direct testimony required under paragraph (b)(1) of this section; and

(ii) All parties shall must simultaneously file any exhibits and written rebuttal required under paragraph (b)(2) of this section.

(c) Failure to comply with order to file written testimony.

(1) The failure of any party to comply with an order to file written testimony or exhibits at the time and in the manner matter required under this section shall will be deemed a waiver of that party's right to present any evidence, except testimony of a previously identified adverse party or hostile witness. Failure to file written testimony or exhibits is, however, not a waiver of that party's right of cross-examination or a waiver of the right to present rebuttal evidence that was not required to be submitted in written form.

(2) Late filings of papers under this section may be allowed and accepted only upon good cause shown.