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furnished. Whenever practicable the parties should arrange for such representation on each side as will limit each memorandum to the least possible number of copies.
(c) Notice by Commission of application of rule. After expiration of the time stated in paragraph (a), the Commission will notify all parties that the proceeding will or will not be conducted under this section.
(d) Declination to consent not prejudicial; oral hearing. If all parties do not consent to shortened procedure, the proceeding will be assigned for oral hearing. (See § 1.10.) Declination to consent will not affect or prejudice the rights or interests of any party.
(e) Complainant's memorandum of facts and argument; copies; service. If all parties consent to shortened procedure, each complainant or its representative should submit to the Commission, within 20 days after date of notice that the proceeding will be conducted under this section, a memorandum of the facts, and, separately stated, of the argument, upon which it relies, together with copies thereof in sufficient number to enable the Commission to retain two copies, in addition to the original, for its own use, and to make service upon each party designated in said notice to receive copies.
(f) Defendant's answer memorandum; copies; service; default. Within 30 days after date of service of complainant's memorandum, each defendant, or person designated by it to receive the memorandum, should serve upon complainant or its representative an answer memorandum of the facts, and, separately stated, of the argument upon which it relies. The original and two copies of this memorandum, accompanied by certificate of service, must be filed with the Commission within the same time. If, within the time prescribed, any particular defendant does not serve and file an answer memorandum and has not notified the other parties and the Commission that one will be filed, it will be understood that such defendant does not desire to submit an answer memorandum.
(g) Complainant's reply memorandum; copies; service; default. Within 15 days after date for filing the answer memorandum each complainant or its representative may serve a reply memorandum upon each defendant or person designated by it. The original and two copies of this memorandum, accompanied by certificate of service, must be filed with the Commission within the same time and the memorandum must be confined strictly to answering the facts and arguments set forth in the answer memorandum. If within the time prescribed any complainant does not serve and file a reply memorandum and has not notified the other parties and the Commission that one will be filed, it will be understood that such complainant does not desire to submit a reply memorandum.
(h) Intervening petitions; service of memoranda upon and by interveners. Petitions in intervention may be filed in proceedings conducted under this section. Service of all memoranda shall be made also upon interveners, or the persons designated by them, and interveners should file and serve memoranda in conformity with the provisions relating to the parties on whose behalf they intervene.
(i) Form and contents of memoranda; expense bills. No form of memorandum is prescribed, but all memoranda must conform to the requirements of § 1.21, and each copy must be complete in itself. All pertinent data should be set forth fully and each memorandum should contain facts and argument, similar to those in cases in which oral hearing is had and briefs are filed. (See note to § 1.10.) Reference in this section to "memorandum" or "memoranda" includes any documentary evidence made a part thereof. If reparation is sought, the paid freight bills should accompany complainant's original memorandum when there are not more than 10 shipments, but otherwise should be retained.
(j) Verification of memoranda; notation on copies. The facts stated in the memoranda must be sworn to by persons having knowledge thereof, which latter fact must affirmatively appear in the affidavit. Except under unusual circumstances, such persons should be those who would appear as witnesses if oral hearing were had, to testify as to the facts stated in the memoranda. The original of each memorandum must show the signature, capacity, and impression seal of the officer administering the oath, and the date thereof. This original will be filed in the docket. The copies must bear notation that the original shows the data required in this respect.
(k) Additional time for filing and service of memoranda. Parties or counsel at El Paso, Tex., Salt Lake City, Utah, Butte and Helena, Mont., or points west thereof, will be allowed 5 days' additional time for the filing and service of the memoranda herein provided for.
(1) Reply memorandum concludes evidence; subsequent procedure. Except as may be otherwise directed by the Commission, the filing of complainant's reply memorandum will conclude the presentation of evidence, and the case will be assigned to an examiner for preparation of a proposed report which will be served upon the parties. Thereafter the procedure will be the same as that in respect of proceedings in which oral hearing is had.
(m) Assignment for oral hearing. At the request of any party, the proceeding will be assigned for oral hearing as provided by § 1.10 at any stage of the proceeding prior to service of the examiner's proposed report. The Commission may, in its discretion, set the proceeding for such hearing on its own motion at any stage thereof.*t
1.11 Depositions-(a) When permissible. Except in valuation cases, the testimony of any witness may be taken by deposition, at the instance of a party in any proceeding pending before the Commission, at any time after issue joined, or, if the Commission so orders, at any stage of the proceeding, pursuant to section 12 of the Act, and in accordance with the Rules of Practice in this part, but not otherwise.
(b) Officer before whom taken; when taken in foreign country. Such depositions may be taken before an agent or examiner of the Commission, or any judge or commissioner of any court of the United States, or any clerk of a district court, or any chancellor, justice, or judge of a supreme or superior court, mayor or chief magistrate
**For statutory and source citations, see note to § 1.1.
of a city, judge of a county court or court of common pleas of any of the United States, or any notary public, not being of counsel or attorney to either of the parties nor interested in the event of the proceeding or investigation, according to such designation as the Commission may make in any order made by it in the premises, except that where such deposition is taken in a foreign country it may be taken before an officer or person designated by the Commission, or agreed upon by the parties by stipulation in writing to be filed with the Commission. The magistrate, person, or officer so designated will in this section be referred to as the officer.
(c) Notice of taking; service; order for taking. Reasonable notice of not less than 10 days, and when the deposition is taken in a foreign country, of not less than 15 days, must first be given in writing by the party or his attorney proposing to take such deposition to the opposite party, or his attorney of record, as either may be nearest, and to the Commission. In such notice shall be stated the name and post-office address of the witness, the subject matter or matters concerning which the witness is expected to testify, the time and place of taking the deposition, and the name and postoffice address of the officer before whom it is desired that the deposition be taken. Thereupon the Commission will make and serve upon the parties or their attorneys an order wherein the Commission will name the witness whose deposition is to be taken and specify the time when, the place where, and the officer before whom the witness is to testify, but such time and place, and the officer before whom the deposition is to be taken, so specified in the Commission's order may or may not be the same as those named in said notice to the Commission.
(d) Oath; reduction to writing; filing and distribution. Every person whose deposition is so taken shall be cautioned and sworn (or affirmed, if he so requests) to testify the whole truth and nothing but the truth concerning the matter about which he shall testify, and shall be carefully examined. His testimony shall be reduced to typewriting by the officer before whom the deposition is taken, or under his direction, after which the deposition shall be subscribed by the witness and certified in usual form by the officer. After the deposition has been so subscribed and certified it shall, together with two copies thereof made by such officer or under his direction, be forwarded by such officer under seal in an envelope addressed to the Commission at its office in Washington, D. C. Upon receipt of the deposition and copies the Commission will file the deposition in the record in said proceeding and forward one copy to the party at whose instance the deposition has been taken, or his attorney, and the other copy to the opposite party, or his attorney, except that when the deposition is taken at the instance of more than one party, or there is more than one opposite party, the copies will be forwarded by the Commission to the parties or their attorneys designated for that purpose in advance.
(e) Form and style. Such depositions must conform to the specifications of § 1.21.
(f) Limitation upon time for taking. Unless under special circumstances and for good cause shown, no such deposition shall be taken within 10 days prior to the date of the hearing thereof assigned by the Commission, and when the deposition is taken in a foreign country it shall not be taken within 30 days prior to such date of hearing.
(g) Fees of officers and witnesses. Witnesses whose depositions are taken pursuant to the rules in this part and the officer taking the same, unless he be an agent or examiner of the Commission, shall severally be entitled to the same fees as are paid for like service in the courts of the United States, which fees shall be paid by the party at whose instance the depositions are taken.
(h) Valuation proceedings. In valuation cases the Commission upon application of any party showing good cause therefor may permit the taking of depositions upon written interrogatories and cross-interrogatories before such persons as it may designate and under such conditions as it may prescribe. All expenses of taking such depositions shall be borne by the applicant.*†
1.12 Witnesses and subpenas-(a) Subpenas, who may issue. Subpenas requiring the attendance of witnesses from any place in the United States at any designated place of hearing may be issued by any member of the Commission.
(b) Subpenas duces tecum, written application, specificness. Subpenas for the production of books, papers, or documents, unless directed by the Commission upon its own motion, will issue only upon application in writing. Applications to compel witnesses who are not parties to the proceedings, or agents of such parties, to produce documentary evidence must be verified and must specify, as nearly as may be, the books, papers, or documents desired and the facts to be proved by them. Applications to compel a party to the proceedings to produce books, papers, or documents should set forth the books, papers, or documents sought, with a showing that they will be of service in the determination of the proceeding.
(c) Fees of witnesses. Witnesses who are summoned are entitled to the same fees as are paid for like service in the courts of the United States, such fees to be paid by the party at whose instance the testimony is taken.
(d) Return of subpena, manner of service. If service of subpena is made by a United States marshal or his deputy such service shall be evidenced by his return thereon. If made by any other person, such person shall make affidavit thereof, describing the manner in which service is made, and return such affidavit on or with the original subpena in accordance with the form thereon. In case of failure to make service the reasons for the failure shall be stated on the original subpena. In making service the original subpena shall be exhibited to the person served, shall be read to him if he is unable to read, and a copy thereof shall be left with him. The original subpena, bearing or accompanied by the required return, affidavit, or statement, shall be returned forthwith to the secretary of the Commission, or, if so directed on the subpena, to the presiding
*For statutory and source citations, see note to § 1.1.
commissioner or examiner before whom the person named in the subpena is required to appear.**
1.13 Documentary evidence-(a) Relevant and material matter designated as offered; copies supplied. When relevant and material matter offered in evidence by any party is embraced in a book, paper, or document containing other matter, not material or relevant, the party must plainly designate the matter so offered. If the other matter is in such volume as would unnecessarily cumber the record, such book, paper, or document will not be received in evidence but may be marked for identification and, if properly authenticated, the relevant and material matter may be read into the record, or, if the presiding commissioner examiner so directs, a true copy of such matter, in proper form, shall be received as an exhibit, and like copies delivered by the party offering the same to opposing parties or their attorneys appearing at the hearing, who shall be afforded opportunity to examine the book, paper, or document, and to offer in evidence in like manner other portions thereof if found to be material and
(b) (1) Offers in evidence; Commission's files, except tariffs, production not required. In case any matter contained in a report or other document, not a tariff schedule, on file with the Commission is offered in evidence such report or other document need not be produced or marked for identification, but in other respects the provisions of paragraph (a) of this section will apply.
(2) Records in other proceedings; objections. In case any portion of the record before the Commission in any proceeding other than the one on hearing is offered in evidence a true copy of such portion shall be presented for the record in the form of an exhibit unless(i) The party offering the same agrees to supply such copy later at his own expense, if and when required by the Commission; and (ii) The portion is specified with particularity in such manner as to be readily identified; and
(iii) The parties represented at the hearing stipulate upon the record that such portion may be incorporated by reference, and that any other portion offered by any other party may be incorporated by like reference subject to (i) and (ii); and
(iv) The presiding commissioner or examiner directs such incorporation.
Any portion so offered, whether in the form of an exhibit or by reference, shall be subject to objection.
(c) (1) Tariffs; offer of matter contained in schedules. In case any matter contained in a tariff schedule on file with the Commission is offered in evidence, such tariff schedule need not be produced or marked for identification, but the matter so offered shall be specified with particularity in such manner as to be readily identified and may be received in evidence subject to check by reference to the original tariff schedules so on file.
(2) Reference in exhibits to tariff authority, routes, and distances. All exhibits showing rates, fares, charges, or other tariff provisions must, by appropriate Interstate Commerce Commission number reference, indicate the tariff authority therefor, and if dis
*For statutory and source citations, see note to § 1.1.