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OAH 3-1902-19578-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF LABOR AND INDUSTRY
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ORDER ON DISCOVERY MOTION |
This matter came before Administrative Law Judge Kathleen D.
Sheehy on the Motion of Shoreline Design, Inc., to Compel Discovery. The motion was filed on November 6, 2008; the
Department filed a response on November 12, 2008. The parties argued the motion during a
prehearing conference on November 14, 2008, at which time the motion record
closed.
Lee R. Johnson, Johnson & Greenberg, P.L.L.P.,
Christopher M. Kaisershot, Assistant Attorney General,
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 DENIED; but at the hearing, the Department shall be limited to presenting evidence that is identified in its discovery responses; and
2. The procedural schedule is amended to require the parties to exchange their exhibits and witness lists on November 26, 2008.
Dated: November 17,
2008 s/Kathleen
D. Sheehy
KATHLEEN
D. SHEEHY
Administrative
Law Judge
MEMORANDUM
The Respondent served discovery requests on the Department seeking to have the Department explain the factual basis for certain claimed violations in the Notice and Order for Hearing. The Department responded to the discovery requests by restating the violations alleged in the Notice and Order for Hearing and by directing the Respondent to documents in its investigative file, without specifically identifying which documents supported its alleged violation. Specifically, the Respondent moved to compel further responses to Interrogatory Nos. 7-10. The Department maintains it has fully responded to these Interrogatories and that no further response should be required.
Interrogatory Nos. 7 and 8 ask the Department to “state the complete factual basis” for its claim that Respondent performed negligently or in breach of contract on the Bursch and Meine projects. In its responses, the Department said that the Respondent “failed to complete” the Bursch and Meine projects. Interrogatory Nos. 9 and 10 ask the Department to identify all proceeds of payments that Shoreline received and failed to apply to the Bursch and Meine projects, as alleged in Counts 4 and C of the Amended Notice and Order for Hearing. In its responses, the Department maintained that the Respondent failed to pay certain suppliers, resulting in the placement of mechanics liens on the properties.
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 and 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 relevancy and privilege.[1]
The information sought by the Respondent is necessary and is neither burdensome nor overbroad. The Department’s file, which it identified as containing the evidence supporting its responses, contains all the correspondence between the homeowners and the Respondent. It is reasonable to ask the Department to identify which of these numerous complaints amounts to the breach of contract that has caused harm to the public. But the Department maintains it has answered fully all of the above interrogatories. If it is the Department’s position that there is no further responsive information, then the Administrative Law Judge will accept that representation; however, the Department’s evidence at the hearing will be limited to the contentions identified above. If the Department determines that it is necessary to supplement its previous discovery responses, it shall ensure that the Respondent receives any supplemented responses no later than November 21, 2008.
K. D. S.