1-1700-9881-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN RIGHTS
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Jeannette Nelson,
Complainant,
vs.
Nekton, Inc.,
Respondent.
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ORDER |
By a written motion filed on October 6, 1995, Jeannette Nelson (“the Complainant”) seeks an order compelling Nekton, Inc. (“the Respondent”) to make discovery responses. On October 11, 1995, the Respondent filed a Memorandum in Opposition to the Motion to Compel Discovery.
Howard L. Bolter, Esq., of the firm of Borkon, Ramstead, Mariani & Letourneau, Ltd., 45 Northstar East, 608 Second Avenue South, Minneapolis, Minnesota 55402-1949, represented the Complainant. Louis M. Furlong, Jr., Esq., One Griggs Midway, 1821 University Avenue, St. Paul, Minnesota 55104, represented the Respondent.
Based upon the Memoranda filed by the parties, all the filings in this case, and for the reasons set out in the Memorandum which follows:
IT IS HEREBY ORDERED:
1. The Respondent shall answer Interrogatory No. 5 (1st Set) and Interrogatory No. 1 (2nd Set) on or before October 19, 1995.
2. The Respondent shall produce any documents reflecting disciplinary action against Respondent’s supervisory personnel on or before October 19, 1995.
3. The Respondent shall suggest any Protective Orders necessary to protect the privacy interests of its employees or former employees.
4. The Complainant’s motion is otherwise denied.
Dated this 13th day of October, 1995
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GEORGE A. BECK |
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Administrative Law Judge |
MEMORANDUM
Generally, any means of discovery available pursuant to the Rules of Civil Procedure is available in administrative proceedings. However, under Minn. Rule 1400.6700, subp. 2, if a party objects to discovery, the party seeking it has the burden of proof to show that the discovery is needed for the proper presentation of its case, is not for the purposes of delay, and that the issues or amounts in controversy are significant enough to warrant the discovery. In this case, the Complainant seeks an Order Compelling Discovery in regard to two Interrogatories and two Requests for Production of Documents. The first Interrogatory (1st Set, No. 5) asks the Respondent to identify disciplinary action taken against all supervisory personnel while the Complainant was employed with Respondent and to state the individual employee’s sexual orientation, if known to the employer. The other Interrogatory (2nd Set, No. 1) asks the Respondent to identify employees terminated by the Respondent since 1990 and to describe any disciplinary action taken.
Generally, in civil matters, parties may obtain discovery regarding any matter which is relevant to the subject matter of the case. The information need not be admissible at trial if it appears reasonably calculated to lead to the discovery of admissible evidence. Minn. R. Civ. P. 26.02. The Respondent has generally objected to the two Interrogatories on the grounds that it calls for private data and states that it has no knowledge of the sexual orientation of its employees. The Respondent also argues that terms such as “terminated from employment” or “disciplinary action” do not have a meaning for an employer with at-will employees.
The Respondent must be compelled to answer these Interrogatories since they seek relevant information and appear to be necessary to the preparation of Complainant’s case. If the employer is unaware of the sexual orientation of an individual, that can simply be stated. The discipline taken by the employer or personnel actions taken by the employer against other supervisors or other employees could be potentially relevant if the Complainant was treated in a different fashion. The privacy of the employees in question can be safeguarded through a Protective Order which limits the use of the documents and classifying any documents received into a public record as sealed exhibits.
The Complainant also seeks the production of personnel files for all supervisory personnel during Ms. Nelson’s employment and any documents which reflect disciplinary action against those personnel. The Respondent objects that the requests violate the privacy of the employees in question and that the requests are not relevant and are overly-broad. The employer argues that its records are not relevant because they will not disclose sexual orientation and therefore have no probative value. The Complainant has failed to demonstrate why production of the entire personnel file is necessary to the preparation of its case. Since personnel files are often considered confidential, they should not be produced in full without an articulated need. The Complainant will have a description of the disciplinary action taken against supervisory personnel. It is also reasonable, however, to require production of any documents, whether or not contained in personnel files, which reflect disciplinary action against Respondent’s supervisory personnel as well as any actions against Ms. Nelson. If the Respondent has produced all documents evidencing disciplinary action against the Complainant, it need only so state.
The Respondent also argues that the Complainant’s request is not timely since it was made on October 6, for a hearing set for October 24th. Although it would have been helpful for the Complainant to initiate this request somewhat earlier, it is noted that the Complainant’s counsel requested supplementation of responses in a letter dated September 20, 1995. It would appear that the discovery ordered, as modified, can be produced in a timely manner.
The Complainant seeks attorney’s fees for having to make this motion. However, in administrative matters, the only sanctions available for discovery are set out at Minn. Rule 1400.6700, subp. 3. Attorney’s fees are not authorized by statute or rule. Although the discovery rule refers to the Rules of Civil Procedure, it refers only to the means of discovery available, but does not import the award of expenses of motion contained in those rules.
G.A.B.