1.726—Replies.

(a) Subject to paragraph (g) of this section governing Accelerated Docket proceedings, within three days after service of an answer containing affirmative defenses presented in accordance with the requirements of § 1.724(e), a complainant may file and serve a reply containing statements of relevant, material facts and legal arguments that shall be responsive to only those specific factual allegations and legal arguments made by the defendant in support of its affirmative defenses. Replies which contain other allegations or arguments will not be accepted or considered by the Commission.

(b) Failure to reply to an affirmative defense shall be deemed an admission of such affirmative defense and of any facts supporting such affirmative defense that are not specifically contradicted in the complaint.

(c) The reply shall contain proposed findings of fact, conclusions of law, and legal analysis relevant to the claims and arguments set forth in the reply.

(d) The reply shall include an information designation containing:

(1) The name, address and position of each individual believed to have firsthand knowledge about the facts alleged with particularity in the reply, along with a description of the facts within any such individual's knowledge.

(2) A description of all documents, data compilations and tangible things in the complainant's possession, custody, or control that are relevant to the facts alleged with particularity in the reply. Such description shall include for each document:

(i) The date prepared, mailed, transmitted, or otherwise disseminated;

(ii) The author, preparer, or other source;

(iii) The recipient(s) or intended recipient(s);

(iv) Its physical location; and

(v) A description of its relevance to the matters in dispute.

(3) A complete description of the manner in which the complainant identified all persons with information and designated all documents, data compilations and tangible things as being relevant to the dispute, including, but not limited to, identifying the individual(s) that conducted the information search and the criteria used to identify such persons, documents, data compilations, tangible things, and information;

(e) The reply shall attach copies of all affidavits, documents, data compilations and tangible things in the complainant's possession, custody, or control upon which the complainant relies or intends to rely to support the facts alleged and legal arguments made in the reply.

(f) The complainant may petition the staff, pursuant to § 1.3, for a waiver of any of the requirements of this section. Such waiver may be granted for good cause shown.

(g) Accelerated Docket Proceedings. For the purpose of this paragraph (g), the term document also shall include data compilations and tangible things.

(1) The filing of a separate pleading to reply to affirmative defenses is not permitted in Accelerated Docket proceedings. Complainants in such proceedings may include, in the § 1.733(i)(4) pre-status-conference filing, those statements that otherwise would have been the subject of a reply.

(2) In Accelerated Docket proceedings, the failure to reply, in the pre-status-conference filing, to an affirmative defense shall be deemed an admission of such affirmative defense and of any facts supporting such affirmative defense that are not specifically contradicted in the complaint.

(3) If a complainant replies to an affirmative defense in its § 1.733(i)(4), pre-status-conference filing, it shall include in that filing the information, required by paragraph (d)(1) of this section, identifying individuals with firsthand knowledge of the facts alleged in the reply.

(4) An Accelerated Docket complainant that replies to an affirmative defense in its § 1.733(i)(4), pre-status-conference filing also shall serve on the defendant, at the same time as that filing, those documents in the complainant's possession, custody or control that were not previously produced to the defendant and that are likely to bear significantly on the issues raised in the reply. Such a complainant is not required to comply with the remainder of the requirements in paragraphs (d) and (e) of this section.

[63 FR 1037, Jan. 7, 1998, as amended at 63 FR 41447, Aug. 4, 1998; 66 FR 16617, Mar. 27, 2001]

CFR

1.726—Replies.