3-1700-10643-2

 

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE DEPARTMENT OF HUMAN RIGHTS

 

Judith E. Morke,                                     Complainant,   v.   Piper Jaffray, Inc.,                                     Respondent.

ORDER COMPELLING DISCOVERY, AWARDING SANCTIONS, AND CONTINUING THE HEARING

 

 

The above-entitled matter is before Administrative Law Judge Allen E. Giles on cross-motions to compel compliance with the parties’ requests for discovery.  By a written Motion filed December 26, 1996, Complainant sought an Order compelling Piper Jaffray, Inc. (“Respondent”) to fully respond to interrogatory questions and produce documents, particularly information concerning Piper employees, claims of discrimination made against Piper, and facts relied upon by Piper in choosing to terminate Complainant.  Respondent asserted that the information sought was irrelevant, unduly burdensome to produce, and, in part, protected by attorney client privilege.  In its motion filed on January 9, 1997, Respondent requested that more complete answers to its own discovery requests be provided by Complainant, that a protective order be issued, and that the hearing date be continued.  At the time of the motion hearing in this matter, no information remained to be provided by Complainant.  The record on these motions closed on January 27, 1997, at the close of the motion hearing.

Patrick M. Connor, Connor & Satre L.L.P., 900 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, Minnesota 55402, appeared on behalf of Complainant.  James C. Burroughs II, Dorsey and Whitney L.L.P., Pillsbury Center South, 220 South Sixth Street, Minneapolis, Minnesota 55402-1498, represents the Respondent.

Based upon the memoranda filed by the parties, all of the filings in this case, the arguments of counsel, and for the reasons set out in the memorandum which follows, the Administrative Law Judge makes the following:

ORDER

            IT IS HEREBY ORDERED that:

1.     Within ten days, Respondent shall submit full and complete answers to the questions in Complainant’s Interrogatory Nos. 10, 11, 17, 26 and 27.  If employees’ personnel files are submitted to respond to any of the Interrogatory questions, the files shall be subject to the protective order issued on January 7, 1997, in this matter.

2.     Within ten days, Respondent shall submit full and complete answers to the questions in Complainant’s Interrogatory No. 16, to the extent that any of the actions, lawsuits, arbitrations, or other adjudicatory proceedings involved the issue of age discrimination at Respondent’s Minneapolis office.

3.     Within ten days, Respondent shall submit full and complete recountings of any conversations between its employees relating to the termination of Complainant prior to her termination date where Respondent claims attorney-client privilege to the Administrative Law Judge for an in camera review.

4.     At the hearing in this matter, each party can call its identified expert witness.  Each expert witness may testify as to any relevant matter within the witness’ area of expertise.

5.     Respondent’s motion for extending the deadline for consideration of dispositive motions is DENIED.

6.     Respondent shall pay $500.00 to Complainant for attorney’s fees and costs incurred due to Respondent’s failure to comply with Complainant’s reasonable discovery requests and interference with the deposition of a witness.

7.     The hearing scheduled in this matter is hereby continued to March 17, 1997, at 9:30 a.m. at the Office of Administrative Hearings.

Dated:  February ___, 1997.

 

                                                                                    ____________________________

                                                                                    ALLEN E. GILES

                                                                                    Administrative Law Judge

 

 

MEMORANDUM

Respondent objected to a number of Complainant’s Interrogatories as being irrelevant, overly broad, and unduly burdensome.  Complainant asserts that the information is sought to determine whether employment decisions were being made on the basis of age and whether other claims of age discrimination have been made regarding this employer.  All of the employee information identified in Interrogatory numbers 10, 11, 17, 26 and 27 relate to persons affected by employment decisions at issue in this matter, or similar prior employment decisions.  This information is both relevant and likely to lead to the discovery of admissible evidence.  The discovery sought concerning other employees must be fully answered by Respondent.

Complainant’s request for information concerning judicial and quasi-judicial proceedings involving Respondent in Interrogatory 16 does not contain any limitation by subject-matter.  Respondent asserts that the request is overbroad and suggests that only claims directed at Complainant’s supervisor be disclosed.  The inclusion of non-age discrimination claims in the discovery request is overbroad.  To limit the request to only Complainant’s supervisor, however, is to draw the net too narrowly.  There is no assurance that a litigant in another matter would necessarily identify Complainant’s supervisor in a proceeding, even if the litigation were to address conduct by that person.  Limiting the information to be discovered to actions involving age discrimination at Respondent’s Minneapolis office from 1990 would not be overly burdensome.  Actions involving the Minneapolis office are relevant to determine Resondent’s state of knowledge of what conduct is prohibited and could aid in the detemination of damages, in the event discrimination is found.  Subject to the type, time, and location limitations imposed here, Complainant’s request for litigation information must be answered.

In the deposition of              , Complainant inquired into whether the witness ever discussed age issues prior to terminating Complainant.  The witness responded that any such conversation was protected by attorney-client privilege because the conversation was held with Respondent’s in-house counsel.  Respondent has claimed the attorney-client privilege, but not identifed the substance of the conversation.  Complainant maintains that the timing of the conversation with in-house counsel for Respondent renders the attorney-client privilege inapplicable to this situation.  The claim of privilege cannot be overcome by mere assertion.  However, the conversation sought is not so obviously eligible for the privilege that further inquiry must necessarily be precluded.  Therefore, Respondent shall submit a complete recounting of that conversation from both the deposed witness and in-house counsel.  After an in camera inspection of the contents of the conversation, the Judge will rule on the applicability of the privilege.  This process is consistent with the method set out in United States v. Zolin, 109 S.Ct. 2619 (1989) and will ensure that relevant evidence is not unnecessarily withheld from Complainant.

Interrogatory numbers 26, 27 and 28 request information as to any employees who have been terminated in reductions-in-force, the basis for Respondent’s selecting Complainant for termination, and any consideration that was made of a less detrimental alternative to terminating Complainant.  Respondent has objected to these questions as irrelevant to any issues in this matter.  Respondent asserts that since only one employee was terminated, there was not a “reduction-in-force” that occurred in the workplace.  Respondent has already asserted in its nShould Complainant establish a prima facie case of age discrimination, the existence of information that the employer’s actions had a nondiscriminatory basis will be vital to Respondent’s case.  Should Respondent fail to fully answer Interrogatory numbers 26, 27 and 28, Respondent would not be allowed to introduce that evidence at the hearing of this matter.

A deposition of Carolyn Marshall was noticed for January 7, 1997, at the office of Complainant’s counsel.  On the morning the deposition was to take place, Respondent’s counsel telephoned Complainant’s counsel and stated the Marshall would be made available for depostion if Complainant’s counsel stipulated to extend the deadline for filing dispositive motions.  That deadline had passed in December.  Complainant’s counsel refused to “stipulate” under those circumstances and the deposition did not go forward.

Complainant has asked for an award of attorney’s fees in the amount of $793.00 to compensate Complainant for the extra work required to compel responses to discovery and for interfering with the deposition of a witness.  Under Minn. Stat. §

Each party has pointed out valid areas for compelling discovery from the other.  Some of the claims are without merit.  Therefore, to the extent proper, each party’s Motion to Compel Discovery is GRANTED.  Since discovery is not completed and is not likely to be completed prior to the scheduled hearing date, the hearing is therefore CONTINUED.  The Judge has considered the Complainant’s situation and does not believe that she will be prejudiced by the delay in the hearing date.

                                                                                    P.A.R.