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OAH 3-1700-19494-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF HUMAN RIGHTS
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ORDER ON MOTIONS TO COMPEL DISCOVERY AND TO EXCLUDE TESTIMONY |
This matter came before Administrative Law Judge Kathleen D.
Sheehy on the Motion of Respondent Abercrombie & Fitch to compel discovery
and to exclude testimony. The motion was
filed on December 22, 2008; the Department and the Intervenor filed responses
on December 30, 2008. The motion record
closed on January 8, 2009, upon receipt of correspondence from the Department with
regard to the production of an expert report.
Laura S. Weintraub, Esq., Johnson, Killen & Seiler,
Margaret Jacot, Assistant Attorney General,
Ian S. Laurie, Esq., Laurie & Laurie, P.A.,
Based on all of the files and proceedings herein, and for the reasons contained in the Memorandum attached hereto, the Administrative Law Judge makes the following:
1. The Respondent’s Motion to Compel Discovery is GRANTED. Within three business days of receipt of this Order, the Complainant shall provide MDHR document numbers 3-4, 121-31, 106-09, and 136 to the Administrative Law Judge for in camera review. The Complainant shall provide copies of all other documents in the investigative file directly to the Respondent within three business days of receipt of this Order.
2. The Respondent’s Motion to Exclude Testimony is GRANTED IN PART AND DENIED IN PART, as more fully explained in the attached Memorandum.
2. The Respondent’s motion for an award of attorney’s fees is DENIED.
Dated: January 8, 2009.
_______________________
KATHLEEN
D. SHEEHY
Administrative
Law Judge
MEMORANDUM
This
matter has been pending in the Office of Administrative Hearings since March 5,
2008. The Complaint served with the
Notice and Order for Hearing alleges that M.M. is a person disabled by autism
and that on August 23, 2005, employees of Abercrombie & Fitch refused a
reasonable accommodation to M.M. when they declined to allow M.M. and her
sister to enter a dressing room together.[1] The Commissioner found probable cause to
believe that the Respondent had committed an unfair discriminatory practice in
violation of
The Respondent has moved to compel the production of the investigative file, which it sought in the course of discovery. The Department has refused to produce the investigative file to the Respondent, maintaining it cannot disclose any documents in its investigative file “without a court order;” that the Respondent already possesses most of the file documents; and that some of the documents are either privileged work product or would improperly reveal the internal investigative processes of the agency.
The
Respondent has also moved to exclude the testimony of M.M. and of George M.
Realmuto, M.D., co-director of the Autism Clinic and
Legal Analysis
The rules of the Office of Administrative Hearings specify that any means of discovery available under the Rules of Civil Procedure for the District Court of Minnesota is allowed in a contested case. The rules also authorize the filing of motions to compel. The rules further state that a party bringing a motion to compel must show the discovery is necessary, is not requested for the purpose of delay, and the issues or amounts in controversy are significant enough 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 relevance and privilege.[4]
Privileges recognized in the context of discovery are those defined by the constitution, statute, common law, the rules of evidence, and cases interpreting them. Recognized privileges that appear to be at issue here include the attorney client privilege, the work product doctrine, and the agency/public official privilege shielding confidential recommendations, evaluations, conclusions, mental impressions, or legal theories contained within governmental communications.[5]
Motion to Compel
Production of the Investigative File
On
May 21, 2008, the Administrative Law Judge issued a Protective Order
specifically applicable to data classified as not public under the Government
Data Practices Act,
The only documents which Complainant possesses that are responsive to this request are contained in the Department of Human Rights investigative file. Under section 363A.35 of the Minnesota Human Rights Act, the data contained in the Department’s investigative file is protected nonpublic and/or confidential data and the Department opposes discovery of such data in accordance with section 13.03 of the Government Data Practices Act. If you wish to obtain such data, you will have to follow the procedures outlined in Minnesota Statutes section 13.03, subdivision 6.[7]
On November 13, 2008, the Department served supplemental responses containing a log that identifies the documents in the file by number.[8] It appears the documents themselves have never been produced.
The Department apparently has a policy that has existed for some time that it will not disclose any documents in its file in discovery, even if a protective order has been issued, unless it is compelled to do so. This is an unnecessarily obstructive reading of the relevant legal requirements. Under the Minnesota Human Rights Act, access to case files is governed by the following statutory provision:
(a) Except as otherwise provided in this subdivision, human rights investigative data contained in an open case file are confidential data on individuals or protected nonpublic data. The name and address of the charging party and respondent, factual basis of the allegations, and the statute under which the action is brought are private data on individuals or nonpublic data but are accessible to the charging party and the respondent.
(b) After a charge has been filed, the commissioner may disclose information to persons as the commissioner deems necessary (1) to facilitate investigation or disposition of the charge, or (2) to promote public health or safety. The commissioner may also disclose data about an open case file to another governmental entity to assist that entity or the department in processing a complaint or to eliminate duplication of efforts in the investigation of the same or similar facts as alleged in the charge. To the extent that data are disclosed to other governmental entities, it must be stipulated that section 13.03, subdivision 4, applies to the classification of the data.
(c) After making a finding of probable cause, the commissioner may make human rights investigative data contained in an open case file accessible to a person, government agency, or the public if access will aid the investigative and enforcement process.[9]
Once the Commissioner of Human Rights has issued a Complaint, however, the matter is handled as a contested case under the Administrative Procedure Act, Minnesota Statutes Chapter 14. At this point, it is not simply up to the commissioner to exercise discretion about which data may be disclosed; nor does the commissioner have an unfettered right to decline to disclose data. In contested cases, parties have the right to engage in any means of discovery available pursuant to the rules of Civil Procedure for the District Court of Minnesota.[10] In general, the factual information collected in the course of a government investigation is discoverable by a party charged with violating the law because it is reasonably calculated to lead to the discovery of admissible evidence.[11] Presumably this is the evidence that the agency will use at hearing to prove its case. In defending a case, it may well be relevant to know what factual information was available to the agency in making its determination that the law was violated. Accordingly, most state government agencies routinely disclose not public data in the course of discovery pursuant to the terms of a stipulated protective order, as authorized by the Government Data Practices Act.
The Data Practices Act provides for discovery of this data as follows, in relevant part:
If a government entity opposes discovery of government data or release of data pursuant to court order on the grounds that the data are classified as not public, the party that seeks access to the data may bring before the appropriate presiding judicial officer, arbitrator, or administrative law judge an action to compel discovery or an action in the nature of an action to compel discovery.
The presiding officer shall first decide whether the data are discoverable or releasable pursuant to the rules of evidence and of criminal, civil, or administrative procedure appropriate to the action.
If the data are discoverable the presiding officer shall decide whether the benefit to the party seeking access to the data outweighs any harm to the confidentiality interests of the entity maintaining the data, or of any person who has provided the data or who is the subject of the data, or to the privacy interest of an individual identified in the data. In making the decision, the presiding officer shall consider whether notice to the subject of the data is warranted and, if warranted, what type of notice must be given. The presiding officer may fashion and issue any protective orders necessary to assure proper handling of the data by the parties.[12]
Nothing in the Data Practices Act requires an agency to oppose the production of information that is not public when a protective order properly limiting the disclosure of the data has been entered. Contrary to the Department’s reading of this statute, the Department is not obligated to oppose the discovery of all data that is not public unless or until an ALJ orders its production. Parties routinely agree to the terms of protective orders that permit the limited disclosure of data that is not public in order to facilitate preparation for a hearing and to avoid the expense associated with motions to compel discovery. There is nothing uniquely undiscoverable about “human rights investigative data,” compared to, for example, the data (including law enforcement investigation data) collected by the Department of Human Services, the Department of Health, or the Department of Education in the course of investigating the alleged maltreatment of children or vulnerable adults.
Furthermore, under the rules governing contested case procedures, it is the obligation of a party who is asked to reveal not public data in discovery to bring the matter to the attention of the judge, who shall make such protective orders as are reasonable and necessary or as otherwise provided by law.[13] Accordingly, if the Department objects to producing documents on the basis that the documents are not public, the Department has the burden to seek a protective order. In the event that there is a disagreement about whether particular not-public documents should be disclosed pursuant to the protective order, the agency is entitled to either assert a privilege or to seek additional protections, as described in Minn. Stat. § 13.03, subd. 6. The statute simply does not require either the approach or the expense associated with the Department’s position.
The Respondent has demonstrated that discovery of information in the Department’s investigative file is necessary, is not requested for the purpose of delay, and the issues or amounts in controversy are significant enough to warrant the discovery.[14] The Department’s burden in opposing the discovery is to show that the documents are protected by a privilege recognized by law.
In responding to this motion, the Department has indicated that the Respondent already has copies of MDHR document nos. 1-2, 9, 13-14, 17-100, 110, 113-14, 116-20, and 133-35. In support of this assertion, the Department points to the disclosure of and production by the Intervenors of these same documents.[15] The fact that another party has already produced this information is not a basis for any legal objection to producing it by the Department. The motion to compel production of these documents is granted.
The Department has also indicated that MDHR document numbers 5-8, 10-12, 15-19, 101-05, 112, 115, and 132 are “cover letters and standard notices and consent forms which have little relation to the facts at issue in this case.” The Department has said that it will make these documents available for inspection and copying “so long as the documents are subjected to a protective order.” The Administrative Law Judge has already issued a detailed protective order, and the Department has not pointed out any flaws or inadequacies of the existing protective order or asked for any additional protections required in order to protect this data. The motion to compel production of these documents is granted.
The Department has objected to producing MDHR document number 106-09 as being work product of the Intervenors, and it has objected to MDHR documents 3-4, 121-31, and 136 as being internal investigative documents, the disclosure of which would reveal the internal processes, procedures, and decisions of the agency and possibly harm future investigations. These documents should be provided to the Administrative Law Judge for in camera review. If the documents are protected by either the work product or agency/executive privileges, they will be returned to the agency. If the Administrative Law Judge concludes the documents are not privileged, the documents will be produced to the Respondent.
Motion to Exclude
Testimony
The Respondent moved to exclude the testimony of M.M., arguing that M.M.’s testimony should be precluded because her attorney declined to make M.M. available for a deposition. The Intervenor’s expert, Paul Reitman, PhD, has completed an independent psychological evaluation of M.M. and has concluded, in part, that because of her disability M.M. is not capable of participating in legal proceedings.[16] The Respondent’s expert, Eric Larsson, PhD, appears to agree with the autism diagnosis and with the conclusion that M.M.’s borderline level of functioning would make it difficult for her to participate in a hearing.[17] In response to this motion, counsel for M.M. has stated that he does not oppose the motion to exclude her testimony. Accordingly, the motion to exclude the testimony of M.M. is granted.
The Respondent also moved to exclude the testimony of Dr. Realmuto, contending the Department has failed to timely disclose the facts and opinions to which he will testify as required by the prehearing order. The Department contends first that it has complied with the prehearing order.
The First Prehearing Order, issued May 21, 2008, set a deadline of July 15, 2008, for expert witness disclosure by the Department and Intervenors, in compliance with the requirements of Minn. R. Civ. P. 26.02(d). At the request of the Department,[18] this deadline was continued for two weeks; and after a suspension of the deadlines so the parties could attempt mediation, the deadline was later reset to November 14, 2008.[19]
On November 13, 2008, the Department served supplemental responses to Interrogatory No. 7 (regarding the identification of expert witnesses) providing that the Department may call Dr. Realmuto to testify as an expert and that his report would be provided under separate cover at a later date that “will contain the facts and opinions to which he will testify and the grounds for each opinion.”[20] In response to this motion, the Department indicated that it would provide an expert report for Dr. Realmuto by January 2, 2009. In a subsequent email, the Department indicated that Dr. Realmuto’s report would be delayed because of personal circumstances resulting from a fire in his apartment building. Based on correspondence dated January 7, 2009, the Department appears to have served the other parties with Dr. Realmuto’s report.
The prehearing order required the Department to disclose the facts and opinions to which Dr. Realmuto will testify, and the grounds for each opinion, by July 14, 2008. The Department’s argument that it complied with this order is spurious, as is its contention that Rule 26.02(d) does not require the production of an expert report. The rule requires disclosure of expert opinions—the substance of the facts and opinions to which the expert will testify. Attorneys often provide the expert’s report in lieu of answering an interrogatory to satisfy this requirement. But the substance of the opinions must be disclosed, whether by the attorney in the form of an interrogatory answer or by the expert in the form of a report. The Department did not comply with the prehearing order or Rule 26.02(d) by the time specified.
Preclusion
of expert testimony, however, should be a last resort as a sanction for noncompliance
with disclosure requirements.[21] It appears the Department recently provided
the report to the other parties, although the report itself was not provided to
the Administrative Law Judge. The motion
to exclude this testimony is accordingly denied; however, if upon receipt of
the report, the Respondent reasonably believes it necessary to take Dr.
Realmuto’s deposition, the Complainant shall make Dr. Realmuto available for a
deposition in
Attorney’s Fees
The Respondent seeks an award of attorney’s fees from the Department as a sanction for refusing to follow the protective order by withholding production of the Department’s investigative file. The Protective Order was not an order compelling production of the file; its purpose is to protect documents produced in the course of the discovery process. It was the hope of the Administrative Law Judge that the Protective Order would expedite production of the file. But the Department did not violate the Protective Order, and the request for fees is accordingly denied.[22]
K. D. S.
[1] Complaint ¶¶ 4-5.
[2] Answer ¶¶ 4-5.
[3] Third Prehearing Order (Oct. 8, 2008).
[4] Minn. R. 1400.6700, subp. 2 (2007).
[5] See, e.g., D. Herr & R. Haydock,
Minnesota Practice § 26.7 (2003); P. Thompson, Minnesota Practice, Evidence §§
501.04-.05 and 501.08 (3d ed. 2001); Minn. Stat. § 595.02, subd. 1(e) (2008)
and Erickson v. MacArthur, 414 N.W.2d
406 (
[6] See Affidavit of Laura S. Weintraub Exs. E & F (Interrogatory Nos. 3-5 and 8; Request for Production of Documents Nos. 2, 4-5, 7-12, 14-16).
[7] See, e.g., Weintraub Aff. Ex. E (Complainant’s Response to Request for Production of Documents No. 11, July 1, 2008).
[8] See Weintraub Aff. Ex. F (Complainant’s Supplemental Answers to Interrogatory No. 8, Nov. 13, 2008).
[9]
Minn. Stat. § 363A.35, subd. 2 (2008).
“Human rights investigative data” means written documents issued or
gathered by the department for the purpose of investigating and prosecuting
alleged or suspected discrimination.
[10]
[11] See
[12]
[13]
[14]
[15] Complainant’s Memorandum at 7.
[16] Weintraub Aff. Ex. B.
[17]
[18] Letter to the ALJ dated July 14, 2008.
[19] Third Prehearing Order (Oct. 8, 2008).
[20] Weintraub Aff. Ex. F.
[21] Dennie v.
[22] If the Department persists in its position that it will not produce any file documents except in response to an order compelling disclosure, the Department may face sanctions in future cases.