(a) Obligation to attempt resolution. Parties shall attempt in good faith to resolve any discovery disputes without the involvement of the Board. A party must confer with an opposing party in an attempt to reach a resolution prior to raising any discovery dispute with the Board.

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(b) Request for conference to resolve dispute. If an attempt to resolve a discovery dispute fails, the party seeking discovery may file a request for a conference with the Board. Requests for conference to resolve a discovery dispute and any responses thereto shall follow the procedures set forth in § 220.5(a)(2) of this subchapter. The request may attach communications related to the discovery dispute or documents specifically discussed in the request related to the inadequacy of the document production and shall:

(1) Describe the dispute;

(2) State that party’s position with respect to the dispute;

(3) Explain the attempts made to resolve the dispute without the involvement of the Board; and

(4) Attach any inadequate interrogatory responses or inadequate request for admission responses.

(c) Determination by Board. Following receipt of the request and any response, the Board may schedule a conference to address the discovery dispute in its discretion. One or more Officers may participate in the conference. During or following the conference, or, if no conference is held, after the Board reviews the request and any responses, the Board shall issue an order resolving the discovery dispute and, in the event of a decision in favor of the aggrieved party, setting a deadline for compliance.

(d) Failure to comply with order. If a party fails to timely comply with the Board’s discovery order, the party seeking discovery may send a notice to the noncompliant party giving the noncompliant party 10 days to comply. If the noncompliant party fails to comply within 10 days of receipt of the notice, the aggrieved party may file a request for sanctions with the Board.

(e) Sanctions—(1) Form of request for sanctions. A request for sanctions and any response thereto shall be uploaded to eCCB and shall meet the requirements set forth in § 220.5(a)(2) of this subchapter. A request for sanctions shall attach the relevant and allegedly inadequate discovery responses already provided by the opposing party, except for disputes pertaining to responses to document requests, and shall set forth the basis for the request.

(2) Standard for granting request. Following receipt of a request for sanctions and any response from the opposing party, the Board may hold a conference to address the request for sanctions. In the Board’s sole discretion and upon good cause shown, sanctions may be imposed if the opposing party is found to be noncompliant with the Board’s discovery order.

(3) Relief. Sanctions imposed for noncompliance with a discovery order of the Board may include an adverse inference with respect to the disputed facts directly related to the discovery in question against the noncompliant party.

(4) Implications for award of attorneys’ fees and costs. The Board may consider the assessment of discovery sanctions when considering the awarding of attorneys’ fees and costs during a final determination.