1-1901-9966-2

In all other respects, Respondent’s Motion for a protective order is DENIED.

Dated this ____ day of October, 1996

STEVE M. MIHALCHICK

Administrative Law Judge

MEMORANDUM

Respondent is a not-for-profit corporation that has 18,000 member-owners and is controlled by a Board of Directors with approximately 50 members. Respondent employs hundreds of employees, just in its operations relevant to this matter. Affidavit of David A. Geisler, at 2. Respondent has operations in a number of states. A citation was issued to Respondent after an inspection of Respondent’s facility in Zumbrota, Minnesota on October 25-30, 1995. The inspection was precipitated by the death of a worker who fell into a cheese grinder. After the inspection, a search warrant was executed by law enforcement authorities investigating the death of the employee. Jim Emmons, a DOLI inspector, accompanied the law enforcement authorities and assisted in the search. As a result of the search, the Goodhue County Attorney took possession of a large number of documents. Copies of those documents were made for Respondent, Respondent’s counsel, and the DOLI inspector. In the course of this litigation over the citation, DOLI submitted discovery requests for documents in Respondent’s possession regarding information dating back to 1987 regarding personnel, safety policies, training, employee discipline regarding safety rule violations, and the factual and legal grounds for any affirmative defense to be asserted by Respondent.

Respondent has objected to the discovery directly as being onerous and burdensome because DOLI has already had the opportunity to get the requested documents from its investigator or the Goodhue County Attorney. The scope of discovery is objected to by Respondent as being overly broad. An indirect objection is lodged by Respondent on the basis that there is no officer of Respondent who can provide the requested discovery. Respondent maintains that any officer will be asserting that employee’s privilege against self-incrimination and, therefore, cannot answer the discovery. Due to the ongoing potential for criminal charges, Respondent has requested this matter be stayed until any criminal matter arising out of the incident has been resolved or the applicable statute of limitations has expired.

Duplication of Discovery with Prior Search

Respondent identified ten points of similarity between documents or information requested in discovery and identified in the search warrant. Respondent characterizes the search as the Department’s “opportunity” for obtaining the information in the discovery request. Respondent asserts the DOLI should review the documents it has as:

It is more convenient, less burdensome and less expensive for Complainant to review the discovery it has already had the opportunity to obtain than to require Respondent to again provide the information that was available to the Complainant at the time of their search. Such tactics are harassing and expensive.

Respondent’s Memorandum in Support, at 10.

DOLI responded that most of the documents listed as seized pursuant to the search warrant are not in Emmons’ file. The Department also asserted that their discovery request applies to materials in any office in Respondent’s organization, not merely the Zumbrota facility and therefore cannot be duplicative of anything obtained through the search.

When a search warrant is executed, the information obtained is that which can be found. The search is bounded by the location identified and the information described on the warrant. There are no such limitations on discovery. Respondent has an affirmative obligation to seek out information requested in discovery. There is no such obligation when a search warrant is executed. The Respondent has not shown that DOLI already has the information requested and has not shown that complying with the discovery request will duplicate the information provided through the search.

In the ordinary course of litigation on citations issued and contested, the parties are entitled to discovery. Respondent seeks to limit what must be disclosed on the ground that the Department already has the information through the search. At the hearing, Respondent indicated that the search warrant could be subject to challenge and any evidence obtained thereunder would be inadmissible under the “fruit of the poisonous tree” doctrine. See Pince v. Minnesota Department of Public Safety, 437 N.W.2d 670 (Minn.App. 1989), rev. denied May 24, 1989 (doctrine available beyond criminal cases). If such a challenge were successful, the Department cannot be said to already have the information requested through discovery. The Department’s right to discovery in this matter cannot be infringed by these conflicting claims.

Breadth and Undue Burden

Respondent has complained of the breadth and undue burden imposed by DOLI’s discovery request. The discovery request asks for all safety information from the Zumbrota facility dating back to 1987. Respondent asserts that no information with probative value can be obtained by such far-ranging request. DOLI indicated that its best information showed the cheese grinder had been installed in 1985 and improvements made in 1987. Emmons Affidavit. The Department suggests that safety policies outside the cheese grinder area could be relevant to knowledge of the hazard posed by the cheese grinder or “may demonstrate plain indifference to safety in other areas.” Department Memorandum, at 8.

The length of time over which the discovery is sought must be reasonably calculated to lead to information which will be admissible at any hearing in this matter. The date of installation or significant modification is a suitable starting point for the safety history of the machine. The Department has not shown that seeking all safety policies or records is likely to lead to admissible evidence. In the Zumbrota facility, a showing of the likelihood of resulting in relevant evidence must include some evidence that similar machines or similar processes are located there. There has been no such showing here. The discovery request must therefore be limited to the categories of information requested relating to the cheese grinder and the area of the facility in which that machine is located. To the extent that Respondent knows of similar machines or processes at the Zumbrota facility, Respondent must provide answers to the interrogatory questions regarding those machines or processes. If the discovery obtained provides information showing that additional interrogatories are likely to lead to relevant evidence, further discovery can be conducted.

The interrogatories also ask for all information on discipline of employees in the Zumbrota facility who violated work rules. Respondent has pleaded employee misconduct as a defense in this matter. Answer, at 2. Enforcement of safety rules regarding a piece of equipment is relevant to the defense of employee misconduct. Spaulding Lighting Inc., 1987-1990 OSHD 28,248 (Decision dated May 27, 1988). An employer’s failure to enforce a safety policy generally is relevant to proving the defense of employee misconduct. Wachsberger Roofing and Sheet Metal, 1987-1990 OSHD 28,058 (Decision dated August 21, 1987). Information on employee discipline for violation of safety rules throughout the Zumbrota facility is discoverable. Since that information is discoverable, the identity of employees who worked in the area of the cheese grinder is also discoverable, as those employees may have knowledge of the safety rules and how those rules were enforced.

Respondent also objected to the request that the “owners” of Respondent be identified, since there are 18,000 owner-members and Respondent is organized as a not-for-profit corporation. DOLI indicated that the request was made to determine where responsibility for safety policy rests. Having obtained a copy of the Respondent’s prospectus, DOLI has acknowledged that the Board of Directors is the likely policy-setting body for Respondent. Respondent need only identify its Board members and corporate officers to fully respond to the discovery request (interrogatory no. 5) regarding control of Respondent.

Repetition and Speculation

Respondent objected to interrogatory number 2 as repeating number 30 and requiring Respondent to speculate in its answer. The Department acknowledged that number 30 was repetitive and withdrew that interrogatory. Regarding the speculation claim, the Department cited Vaughn v. Love, 347 N.W.2d 818 (Minn.App. 1984). In that case, the Court of Appeals stated:

Plaintiff-respondent propounded the following interrogatory to defendant-appellant: "(21) What are the names, addresses, telephone numbers and employers of all persons you know of who have any information relevant to this case?" This interrogatory is allowed under Rule 33, Minn.R.Civ.P. One purpose of the interrogatory is to prevent unjust surprise and prejudice. Fritz v. Arnold Manufacturing Co., 305 Minn. 190, 232 N.W.2d 782 (Minn.1975); Gebhard v. Niedzwiecki, 265 Minn. 471, 122 N.W.2d 110 (1963).

Id. at 823.

The Department’s interrogatory required Respondent to identify anyone “who has knowledge or claims to have knowledge” of relevant facts. The Respondent can answer the interrogatory fully by identifying all persons that it is aware of with the requisite knowledge or claim to knowledge. Respondent must inquire amongst likely persons to fulfill its obligation to comply with this discovery request. No speculation is required.

Attorney Privilege Objections

Interrogatories 1, 3 and 4 ask for the identity of the persons who provided the information for the answers to interrogatories, and for the grounds for the affirmative defenses asserted by Respondent. Respondent objected to the questions as an improper attempt to discover information that is privileged either as attorney work-product, or attorney-client communication. DOLI responded that none of the requested information infringes on any privilege and well-established principles of discovery allow for the disclosure of the identity of witnesses and grounds for claims. The Department is correct on both counts. Attorney-client and work-product privileges do not preclude discovery of witness names. Setting forth the grounds upon which a party is relying for an affirmative defense is a starting point for directing further discovery and for beginning trial preparation. See Dunnell Minnesota Digest, Discovery § 3.01 (citing United States v. Beatrice Foods Co., 52 F.R.D. 14 (D.Minn. 1971)). Respondent must answer these questions.

Privilege Against Self-Incrimination

Respondent argues that no corporate officer is available to answer the interrogatories, since any such answer would constitute a waiver of that person’s right against self-incrimination. Respondent proposes to resolve this dilemma by obtaining a stay of this matter, until such time as no criminal complaint will (or can) be brought against a corporate officer. The Department objected to both the applicability of the privilege to all corporate officers and the prejudice that DOLI anticipates will arise from a substantial delay in this matter.

Assertion of the privilege against self-incrimination by an individual responding to discovery on behalf of a corporation was analyzed in United States v. Kordell, 90 S.Ct. 763 (1970). The U. S. Supreme Court held that:

[S]ervice of the interrogatories obliged the corporation to ‘appoint an agent who could, without fear of self-incrimination, furnish such requested information as was available to the corporation.’ [citation omitted] The corporation could not satisfy its obligation under Rule 33 simply by pointing to an agent about to invoke his constitutional privilege. ... Such a result would permit the corporation to assert on its own behalf the personal privilege of its individual agents. [citation omitted]

Id. at 767-68.

Respondent argues that any of its corporate officers could be the subject of criminal charges arising out of this incident and suggest that this situation calls for a stay of this matter. In support of this position, Respondent cites the following analysis from Kordell:

The respondents press upon us the situation where no one can answer the interrogatories addressed to the corporation without subjecting himself to a ‘real and appreciable’ risk of self-incrimination. [citation omitted] For present purposes we may assume that in such a case the appropriate remedy would be a protective order under Rule 30(b), postponing civil discovery until termination of the criminal action. [citation omitted]

Id. at 767-68.

DOLI identified Doug Raker, Director, Loss Prevention and OSHA Compliance, for Respondent as one person who could provide the information requested without a “real and appreciable” risk of self-incrimination. Raker began his employment with Respondent in October, 1995. The employee death which triggered this matter occurred on October 25, 1995. Respondent has not attempted to depose Raker or any other corporate officers to determine if any of them will invoke any testimonial privilege.

A similar situation was addressed in Schuessler v. Benchmark Marketing and Consulting, Inc., 500 N.W.2d 529 (Neb. 1993). The Nebraska Supreme Court set out the following standards for resolving such a question:

There is no constitutional right to have civil proceedings stayed pending the outcome of a criminal investigation. Afro-Lecon, Inc. v. U.S., 820 F.2d 1198 (Fed.Cir.1987); S.E.C. v. First Financial Group of Texas, Inc., 659 F.2d 660 (5th Cir.1981); Southwest Marine, Inc. v. Triple A Mach. Shop, Inc., 720 F.Supp. 805 (N.D.Cal.1989). However, courts inherently possess the power to stay such proceedings when required by the interests of justice. American Life Ins. Co. v. Stewart, 300 U.S. 203, 57 S.Ct. 377, 81 L.Ed. 605 (1937); Landis v. North American Co., 299 U.S. 248, 57 S.Ct. 163, 81 L.Ed. 153 (1936); Afro-Lecon, Inc., supra.

The burden of establishing that a proceeding should be stayed rests on the party seeking the stay. See, Landis, supra; Gold v. Johns-Manville Sales Corp., 723 F.2d 1068 (3d Cir.1983); Dentsply Intern., Inc. v. Kerr Mfg. Co., 734 F.Supp. 656 (D.Del.1990). Furthermore, when the moving party seeks to stay a trial, the decision of whether to grant the motion is vested in the discretion of the trial court, and its decision will not be overturned on appeal absent an abuse of that discretion. See, American Life Ins. Co., supra; Landis, supra; Federal Sav. & Loan Ins. Corp. v. Molinaro, 889 F.2d 899 (9th Cir.1989); General Dynamics Corp. v. Selb Manufacturing Co., 481 F.2d 1204 (8th Cir.1973), cert. denied 414 U.S. 1162, 94 S.Ct. 926, 39 L.Ed.2d 116 (1974). In making its decision, the trial court should balance the competing needs of the parties, taking into account, among other things, the interest of the courts, the probability that proceeding will work a constitutional violation on the movant, the presence or absence of hardship or inequity, and the burden of proof. See, American Life Ins. Co., supra; Landis, supra; Gold, supra; Wehling v. Columbia Broadcasting System, 608 F.2d 1084 (5th Cir.1979), reh'g denied 611 F.2d 1026 (5th Cir.1980); General Dynamics Corp., supra; Gordon v. Federal Deposit Insurance Corporation, 427 F.2d 578 (D.C.Cir.1970).

Schuessler, at 534.

In applying those standards, the Nebraska Supreme Court noted that an indefinite stay is an “extraordinary remedy.” Schuessler, at 536. In assessing the applicability of such a remedy in the case before it, the Court noted that:

The mere affidavit of Benchmark’s attorney, without more, simply does not provide enough evidence of inability to defend to convince us that the district court abused its discretion when it denied the stay. Benchmark’s workforce comprised approximately 25 employees. Of these 25, at least 5 did not work as salespersons, the individuals most likely to be criminally responsible for sales misrepresentations. Furthermore, we have no evidence that any employees, much less all of them, would actually invoke the Fifth Amendment.

Schuessler, at 536.

A proper showing of inability to answer the Department’s interrogatories would require, at a minimum, a factual basis for concern about self-incrimination amongst all the corporate officers and management-level employees. There are far more people employed by Respondent than were employed by the corporation in Schuessler. Respondent has not deposed its officers to determine if any will assert a testimonial privilege. A corporation may conduct such depositions to determine who can respond to interrogatories. Kohn v. State by Humphrey, 336 N.W.2d 292, 299 (Minn. 1983)(citing Minnesota State Bar Association v. Divorce Assistance Association, 311 Minn. 276, 278, 248 N.W.2d 733, 737 (1976)). Without any evidence to support a reasonable and substantial fear of self-incrimination on the part of the people who could respond to DOLI’s interrogatories, the concerns on that issue expressed by Respondent are too speculative to justify a stay in this matter.

The Nebraska Supreme Court also considered the proper balance between the rights of both litigants in assessing the propriety of staying the proceeding. The Court stated:

The potential for an extremely long delay (no criminal charges had yet been filed) weighs in favor of denial [of the stay]. “ ‘Witnesses relocate, memories fade, and persons allegedly aggrieved are unable to seek vindication or redress for indefinite periods of time on end.’” " Southwest Marine, Inc. v. Triple A Mach. Shop, Inc., 720 F.Supp. 805, 809 (N.D.Cal.1989) (quoting In re Mid-Atlantic Toyota Antitrust Litigation, 92 F.R.D. 358 (D.Md.1981)).

Schuessler, at 537.

This matter closely parallels the facts in Schuessler regarding the balance of interests between the parties. No criminal charges have been filed, eleven months have elapsed since the fatality, and there is no clearly defined time when criminal charges could not be brought against someone arising from the incident. In a recent case, the Minnesota Supreme Court held that a delay of thirty-one months before the issuance of a formal charge in a contested case brought under the Human Right Act (Minn. Stat. Chap. 363) constitutes prejudice “per se” due to the difficulty in carrying on the litigation after a long delay. State by Beaulieu v. RSJ, Inc., N.W.2d (Minn. 1996). The open-ended delay proposed by Respondent constitutes prejudice to the Department in carrying out its statutory duties.

Respondent argues that a corporation cannot simply appoint an agent to answer discovery because Minn.R.Civ.Proc. Rule 33.01(d) requires the answer to interrogatories served on a corporation be signed by an “officer or managing agent.” Respondent asserts that any of its officers could assert the privilege against self-incrimination and there are no “managing agents” working for Respondent. DOLI responded that the “managing agent” language in Rule 33.01(d) was not intended to provide a bar to a corporation answering discovery. The Department pointed out that most discovery is responded to by employees or agents of corporations who are not officers or managing agents. Respondent suggested that what litigants in other matters acquiesced to in discovery did not change the rule requirement.

As discussed above, no showing has been made that the privilege against self-incrimination will be invoked by any corporate officer, much less all of them. As far as appointing persons to respond on a corporation’s behalf, Minn.R.Civ.Proc. Rule 30.02(f) requires the corporation to appoint “one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf” to answer deposition questions. There is nothing more to the limitation in Rule 33.01(d) than an assurance that the corporation will be bound by its answers to the interrogatories propounded. The same effect could be achieved by DOLI by styling its interrogatories as written deposition questions. In this case, any concern over potential self-incrimination can be resolved by the appointment by the Respondent’s Board of Directors of a person unrelated to the operations at issue here to conduct a reasonable inquiry for the requested information and to sign the interrogatory answers. This resolution is consistent with that suggested in Kohn v. State by Humphrey, 336 N.W.2d 292, 299 (Minn. 1983)(appoint of “corporate agent” to answer interrogatories when officer invokes privilege). To do otherwise would elevate the form of discovery practice over its substance.

Respondent has not shown that a stay is necessary in this matter. Further, granting a stay under the facts present here would impose a prejudicial delay on the resolution of this contested case. For these reasons, Respondent’s request for a stay must be denied. Respondent has shown that a limited protective order is appropriate to limit the scope of the Department’s interrogatories to those questions likely to lead to relevant information. That limited protective order is hereby GRANTED.

S.M.M.