OAH Docket No. 12-1700-17139-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN RIGHTS
|
State
of Velma
Korbel, Commissioner, Department
of Human Rights, Complainant, and Theresa
Rinio, Laura Hegland, Alicia
Christensen, and Crystal Kory, Intervenors, v. Checkered
Flag, Inc. and Michael Rodahl, Respondents.
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ORDER ON MOTION TO COMPEL DISCOVERY |
This matter is before Administrative
Law Judge Steve M. Mihalchick on the motion of the Department of Human Rights
(“the Department”) to compel Respondents Checkered Flag, Inc., and Michael
Rodahl (collectively “Respondents”) to answer certain requests for admissions
and interrogatories, or deem certain matters as admitted in this
proceeding. The Department’s motion was
filed on May 5, 2006. Respondents filed
a reply to the motion on May 17, 2006, and an amended reply on May 18,
2006. No filing was made on behalf of
the Intervenors in this matter.
Based on the contents of Respondents’
amended reply, the ALJ provided the Department an opportunity to respond to the
issues around a particular item sought. The
last filing on this motion was on May 22, 2006.
Erica
Jacobson, Assistant Attorney General,
Based upon the record in this matter,
the Administrative Law Judge makes the following:
1.
The Department’s
motion to deem admitted the Request for Admissions is denied. Respondents are
directed to respond to Request No. 9 within ten days of receipt of this Order.
2.
The Department’s
motion to compel a more complete response to Interrogatory No. 3 (Set 1) is
granted. Respondents must provide each
employee’s name, street address, telephone numbers, the current position with
Checkered Flag (if any), dates of employment, and the present employment
information for the person (if no longer with Checkered Flag). Respondents are directed to provide this
information within ten days of receipt of this Order.
3.
The Department’s
motion to compel production of Michael O. Rodahl’s income tax returns is
granted. Respondents must provide these
documents within ten days of receipt of this Order.
4.
Respondents
are directed to prepare a privilege log using the instructions for privileged
and proprietary matter in the Department’s Request for Production of
Documents. Respondents must provide the
privilege log and any responsive documents for which no privilege is claimed within
ten days of receipt of this Order.
Dated: May 24, 2006.
_/s/
Steve M. Mihalchick_______
STEVE
M. MIHALCHICK
Administrative
Law Judge
The Complainant and Intervenors are
seeking compensatory and punitive damages arising from alleged conduct by
Michael Rodahl asserted to be sexual harassment in the workplace in violation
of the Minnesota Human Rights Act (Minn. Stat. Chap. 363A, also know as the
“MHRA”). As part of this proceeding, the
Department served discovery on Respondents in the form of two sets of Requests
for Admissions and two sets of interrogatories.
The Department brought this motion to compel answers, to compel more
complete answers, and to have some issues deemed admitted due to the
untimeliness of Respondents’ responses.
Respondents maintain that any untimeliness was justified, that the
information sought is irrelevant or constitutes hearsay, and that the
information sought is privileged.
Having reviewed the discovery requests
and information returned by Respondents in answering those requests, a general description
of the discovery standards is in order.
The OAH rules state that
“[a]ny means of discovery available pursuant to the Rules of Civil
Procedure of the District Court of Minnesota is allowed” in contested case
proceedings.[1] These methods include depositions, written
interrogatories, document requests, physical and mental examinations, and
requests for admissions.[2] OAH rules governing contested case
proceedings place the burden of moving to compel discovery on the party seeking
disclosure rather than requiring the party resisting discovery to file an
objection. The moving party in a motion
to compel must show that the discovery is needed for the proper presentation of
the party’s case, the discovery is not sought for purposes of delay, and the
issues or amounts in controversy are of sufficient significance to warrant the
discovery. The party resisting discovery
may raise any objections that are available under the Minnesota Rules of Civil
Procedure, including lack of relevancy and privilege.[3]
While relevance is an available objection to discovery, the
standard is not the same as that for admissibility of evidence at hearing.[4] Relevancy in the discovery context “has been
construed broadly to encompass any matter that bears on, or that reasonably
could lead to other matter that could bear on, any issue that is or may be in
the case.”[5] The Minnesota Supreme Court has established
the standard for information that is not discoverable on relevance grounds as
that having “no possible bearing on the determination of the action on its
merits.”[6] As summarized in the administrative process, “matters
sought to be discovered in administrative law settings will be considered
relevant if the information requested has a logical relationship to the
resolution of a claim or defense in the contested case proceeding, is
calculated to lead to such information, or is sought for purposes of
impeachment.” [7]
Timeliness of Request
for Admissions Response
The Department served the first set of Requests for
Admissions (Admissions Set 1) on Respondents on March 24, 2006.[8] On April 24, 2006, Respondents returned the
responses to Admissions Set 1. [9] The Department has moved for the contents of
Admissions Set 1 to be deemed admitted, since the responses were not served
within 10 days of receipt of the request as required by Minn. Rule 1400.6800. Respondents assert that the lateness in the
responses was due to justifiable excuse, which is the distance between counsel
and the clients. Respondents maintain
that their responses should stand.
A similar issue was addressed in the administrative process
regarding interpretation of justifiable excuse.
In that matter, Rule 36.02 of the Minn.R.Civ.Proc. was used to interpret
the meaning of “justifiable excuse.” Upon
finding that the excuse was legitimate, the ALJ in that matter arrived at the
following analysis:
Rule
36.02 sets forth two standards for consideration in allowing modification to
(or accepting the late filing of) Answers. The first standard requires
that the modification assist in the matter being heard on its merits. The
second standard requires that the party requesting admissions not be prejudiced
by allowing the modification. Using both of these standards to interpret
the term “justifiable excuse” renders the term applicable both objectively
(regarding the presentation of issues in the case) and subjectively (from the
viewpoint of the requesting party, who could be harmed by a late answer). [10]
There is no showing by the Department
of prejudice in allowing the answers.
The only answer that appears to be controversial is Respondents’
response to Request No. 9, which asks Respondents to admit that Exhibit G is a
true and correct copy of a criminal complaint against Michael Rodahl.[11] Respondent objected to the request on the
grounds of relevance and hearsay. [12]
The criminal complaint that is the subject of Request No. 9
was filed by an individual who asserted that she had been inappropriately touched
by “her boss, Michael Rodahl ….” The
complainant indicated that she worked at Checkered Flag and that the touching
had occurred in Rodahl’s office. [13] Applying the standards for relevance in
discovery, the criminal complaint is clearly relevant to the issues raised in
the allegations of workplace harassment in this matter.[14]
Allowing the late response will assist in the matter being
heard on its merits. Since the response
to Request No. 9 is not complete, Respondents are directed to respond to that
request within ten days of receipt of this Order. Failing to respond by that deadline will
result in Request No. 9 being deemed admitted.
Adequacy of Responses
to Interrogatory No. 3
In Interrogatory No. 3, the Department
requested that Respondents “Identify each person employed by Checkered Flag at
any time since June 1, 2004.” [15] Incorporated in the interrogatories is a
section entitled “Definitions” that clarifies what is being sought. For example, “identify” includes four
specific subsets of information for individuals and five subsets for
documents. This section also included
information to be provided about answers claimed to be privileged. [16]
Respondents answered the interrogatories while explicitly
stating that they had not followed the instructions. Interrogatory No. 3 was answered by attaching
copies of employee W-2 forms from 2004 and 2005 and some information labeled
“Payroll Summary” dated March 24, 2006. The
Payroll Summary has names of nine employees, addresses for two and telephone
numbers for seven handwritten on the document.
Accompanying the Payroll Summary are three W-4 forms with addresses of
persons not listed on the Payroll Summary and the application form with all the
contact information requested for one person who is listed on the Payroll
Summary.[17]
The periods of employment are not
identified and the position held by any of these persons is not listed. The Department has moved for an order supplementing
Respondents’ answer. Respondents
maintain that the Department is not entitled to require that the answers be
structured as set out in the instructions.
Respondents have not clearly structured their responses to the Department’s
interrogatories. Respondents did say
that they were relying on “common sense” in answering the discovery. [18]
The Department asked for Respondents to identify all
Checkered Flag employees from June 1, 2004 to the present. The meaning of the word “identify” as set out
in the definitions includes each employee’s name, street address, telephone
numbers, the current position with Checkered Flag (if any), dates of
employment, and the present employment information for the person (if no longer
with Checkered Flag). All of this information
reasonably falls within the scope of the word “identify.” The information provided by Respondents does
not provide the information requested.
Respondents have cited no authority for the proposition that definitions
or instructions can be ignored in responding to interrogatories
Respondents maintain that they have
responded to the interrogatories despite the possibility that the total number
of interrogatories (counting the definitions as subdivisions) “could exceed the
50 interrogatory limitation ….”[19] Respondents did not identify how the total
could possibly exceed 50 interrogatories.
Further, Respondents expressly refused to follow the definitions, so
that portion of the interrogatories could not be treated as actual
interrogatories, without a conclusion that Respondents failed to answer the
interrogatories.
Respondents’ answer to Interrogatory
No. 3. is incomplete. Respondents must
provide each employee’s name, street address, telephone numbers, the
current position with Checkered Flag (if any), dates of employment, and the
present employment information for the person (if no longer with Checkered
Flag). This information must be provided
within ten days of receipt of this Order.
Adequacy of Responses
to Requests for Documents
The Department requested tax returns
for both Checkered Flag, Inc. and Michael
Rodahl. Respondents submitted the tax
returns requested for Checkered Flag, Inc.
Respondents objected to submitting Rodahl’s individual returns “as no
claim has been made against him personally. [20] The Department has moved to
compel the production of Rodahl’s individual returns. Respondents asserted that Checkered Flag,
Inc., only acts through Rodahl as CEO.
For this reason, Respondents maintain that Rodahl’s tax returns cannot
be relevant.
The Department noted that the Respondents’ position
was similar to that of case law from 1988, but the MHRA has been amended since then to provide for individual
liability by perpetrators of discrimination.[21] Rodahl has been named personally as a respondent,
not in his role as CEO. The Department
noted that, under Minn. Stat. § 363A.29, subd. 4, any award of damages must
take into consideration the financial position of any respondent when assessing
penalties for violations of the MHRA.
Rodahl’s tax returns are relevant and those documents must be produced
within ten days of the receipt of this Order.
The Department also requested copies of
all documents in possession of Rodahl that relate to State v. Michael O. Rodahl, Crow Wing County File No. K603-3004. Respondents refused to supply documents
related to that request, stating that the documents requested invade
attorney/client privilege, are not relevant, and can be accessed through public
documents available through
The Department is entitled to production of
documents, even if those documents are available from other sources.[23] Respondents asserted attorney/client
privilege, but failed to describe the documents for which the privilege is
claimed. Respondents maintained that
this was part of the directions that they were free to ignore. But the requirements for describing
privileged documents are not only found in the Request for Production of
Documents. As Minn. R. Civ. P. 26.02 (e)
states:
(e) Claims of Privilege or Protection of Trial Preparation Materials. When a party withholds information otherwise
discoverable under these rules by claiming that it is privileged or subject to
protection as trial preparation material, the party shall make the claim
expressly and shall describe the nature of the documents, communications, or
things not produced or disclosed in a manner that, without revealing
information itself privileged or protected, will enable other parties to assess
the applicability of the privilege or protection.
This practice of describing the documents as
required by the rule has become known as a “privilege log.” The Minnesota Court of Appeals described an
adequate privilege log as:
specifically
identifying the date, subject matter and nature of each document, the identity
and status of each person involved in the communication, and the precise
grounds on which the privilege is claimed and the manner in which the
communication meets those grounds. [24]
Respondents have claimed privilege
regarding requested documents.
Respondents must prepare the required privilege log with the information
identified in the Department’s Request for Production of Documents. The Respondents must produce the privilege
log (and any documents responding to the Request for Production for which no
privilege is claimed) within ten days of the receipt of this Order.
S.M.M.
[1] Minn. R. 1400.6700, subp. 2.
[2]
[3] Minn. R. 1400.6700, subp. 2.
[4]
State by
Humphrey v. Philip Morris, Inc., CX-98-414 and CX-98431, 1998
[5]
Oppenheimer
Fund, Inc. v. Sanders, 437
[6]
Jeppesen v.
Swanson,
243
[7]
ITMO Superior
Home Care, OAH Docket No. 11-0900-11066-2 (Order on Motion to Compel
issued August 1997)(quoting
[8]
Jacobson
Affidavit, Exhibit B.
[9]
Jacobson
Affidavit, Exhibit C.
[10] Brener, Dept. of Labor and Industry v. Lund Martin Construction, Inc., OAH Docket No. 7-1901-15494-2 (Order Denying Summary Judgment issued September 11, 2003).
[11] The Department requested that Respondents be required to supplement the answer to Request No. 2. Respondents have indicated that they will provide a supplemental response to that request. Respondent’s Amended Brief, at 3.
[12]
Jacobson
Affidavit, Exhibit C.
[13]
Jacobson
Affidavit, Exhibit A, (attached Ex. G).
[14] Respondents also objected on the basis of hearsay, but such an objection is not well taken in these matters, as hearsay is, under some circumstances, admissible.
[15]
Jacobson
Affidavit, Exhibit E.
[16]
Jacobson
Affidavit, Exhibit E.
[17]
Jacobson
Affidavit, Exhibit F.
[18]
Jacobson
Affidavit, Exhibit F, at 2.
[19] Respondent’s Amended Brief, at 4.
[20]
Jacobson
Affidavit, Exhibit F.
[21]
Department
Supplemental Brief, at 3.
[22]
Jacobson
Affidavit, Exhibit F.
[23]
Dunnell Minnesota Digest, Vol. 15, Discovery
§ 3.01 (citing Garrity v. Kemper Motor Sales, 159 N.W.2d 103 (
[24] St. John’s Episcopal Church v. Brewmatic Company, C0-99-2196 (Minn. App. August 29, 2000)).