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OAH
3-2500-21662-2 PUC IP-6701/WS-08-1233 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE PUBLIC UTILITIES COMMISSION
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ORDER ON
MOTION FOR PROTECTIVE ORDER AND MOTION TO COMPEL DISCOVERY |
This matter came before Administrative Law Judge Kathleen D. Sheehy on the Motions for Protective Order filed by Goodhue Wind Truth and the Coalition for Sensible Siting on January 24 and January 26, 2011, respectively, and on the Motion to Compel Discovery filed by AWA Goodhue Wind, LLC, filed on January 27, 2011. The motion record closed on February 3, 2011, the deadline set by the Administrative Law Judge for responding to the Motion to Compel.
Todd J. Guerrero,
Carol Overland, Attorney at Law,
Daniel S. Schleck, Mansfield Tanick & Cohen, PA, 1700 US Bank Plaza
South,
Based upon the materials submitted, and for the reasons explained in the attached Memorandum, the Administrative Law Judge makes the following:
ORDER
1.
The Applicant’s Motion to Compel Discovery is GRANTED;
2.
Goodhue Wind Truth and the Coalition for
Sensible Siting must respond to the Applicant’s Information Requests Nos. 3 and
4 by February 11, 2011;
3.
The Motions for Protective Order of Goodhue Wind
Truth and the Coalition for Sensible Siting are DENIED; and
4.
The Applicant may file supplemental direct
testimony within five business days of receiving complete responses to its
information requests from Goodhue Wind Truth and the Coalition for Sensible
Siting.
Dated: February 4, 2011
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s/Kathleen D. Sheehy |
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KATHLEEN D. SHEEHY |
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Administrative Law Judge |
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MEMORANDUM
On January 10, 2011, the Applicant served the following Information Requests on Goodhue Wind Truth (GWT) and the Coalition for Sensible Siting (CSS):
Applicant’s IR #2: Please list each member or participant of [CSS or GWT].
Applicant’s IR #3: Please provide the home address of each individual listed in response to Applicant’s IR #2.
Applicant’s IR
#4: Please identify all parcels in
Responses to these requests were due January 21, 2011, prior to the date on which the Applicant was required to file its direct testimony. GWT and CSS did not respond or object to the requested discovery until they filed their motions for a protective order on January 24, 2011, and January 26, 2011.
In their motions, GWT and CSS object to the Information Requests on the basis that the requests are not reasonably calculated to lead to the discovery of admissible evidence and serve to “harass and intimidate members of Goodhue Wind Truth and the general public” for participation in this proceeding.[2] Furthermore, GWT and CSS allege that the Information Requests
have the intention and serve to bully, harass, overawe, intimidate and frighten the public and members of CSS [and GWT] and are not related to matter (sic) nor issues before the Administrative Law Judge while trying to limit participation in the public process.[3]
In its Motion to Compel, the Applicant states that it is willing to withdraw its IR No. 2, which asks for the names of GWT and CSS members, because the Applicant seeks only to identify the parcels possessed by those members in the project or buffer area. The Applicant notes that the Administrative Law Judge’s Second Prehearing Order required AWA Goodhue to file direct testimony addressing the “open factual questions about applying the ordinance standards” and “describing all the impacts on the project” should the county standards be applied to the project.
The Applicant
argues that the requests at issue are reasonably calculated to lead to the
discovery of probative evidence, which is the applicable standard for allowable
discovery in a contested case hearing.[4] The Applicant asserts that responses to these
Information Requests may provide evidence regarding the nature and extent of
the impacts and appropriateness of applying
Legal Standard
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 needed for the proper presentation of its case, is not for 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.[5]
Rule 26.02 of the Minnesota Rules of Civil Procedure permits discovery regarding any unprivileged matter that is “relevant to the subject matter involved in the pending action,” including information relating to the “claim or defense of the party seeking discovery or to the claim or defense of any other party.” Materials that may be used in impeachment of witnesses may also be discovered as relevant information.[6] It is well accepted that the discovery rules are given “broad and liberal treatment” in order to ensure that litigants have complete access to the facts prior to trial and thereby avoid surprises at the ultimate hearing or trial.[7] Administrative Law Judges at the OAH “have traditionally been liberal in granting discovery when the request is not used to oppress the opposing party in cases involving limited issues or amounts.”[8]
The definition of relevancy in the discovery context has been broadly construed to include any matter “that bears on” an issue in the case or any matter “that reasonably could lead to other matter that could bear on any issue that is or may be in the case.”[9] As a general matter, evidence is deemed to be relevant if it would logically tend to prove or disprove a material fact in issue.[10] In summary, “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.”[11] The definition of “relevancy” for discovery purposes is not limited by the definition of “relevancy” for evidentiary purposes. Thus, information that is deemed relevant at the discovery stage may not necessarily be admissible evidence at the hearing.[12]
In addition, Minn. R. 1400.6700, subp. 4, authorizes the Administrative Law Judge to issue a protective order as justice requires, “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” due to a discovery request. The Minnesota Rules of Civil Procedure similarly provide that, for good cause shown, the court may make any order “which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”[13]
The Minnesota Supreme Court has articulated a test for determining whether a court should issue a protective order barring disclosure of documents identifying an organization’s members who claim that such disclosure will chill their rights to associate. In the case of In re GlaxoSmithKline, the Court held that the party seeking a protective order must demonstrate “a reasonable probability that the disclosure will cause active members to withdraw or dissuade others from joining because of an objective and articulable fear of threats, harassment, or reprisal to the individual or organization.”[14]
Neither GWT nor CSS have alleged any facts that would show that an Order to Compel will result in such harm, let alone shown that there is a “reasonable probability” of such a result. These organizations are parties to a contested case proceeding, and it is not improper to require their members to disclose property ownership or interest within the project or buffer areas. The Applicant’s requests are reasonably calculated to lead to the discovery of probative evidence; they are not burdensome; and there is no evidence to show the existence of any articulable fear of threats, harassment or reprisal to any of the individuals or to GWT or CSS as organizations.
Accordingly, the Applicant’s Motion to Compel responses to Information Request Nos. 3 and 4 is GRANTED, and the Motions for Protective Order are DENIED. As requested in Information Request Nos. 3 and 4, GWT and CSS must provide the home address of each member who has an interest in property described in Information Request No. 4 and must identify the parcels in the project and buffer area on the map attached to the request.
Finally, because the Applicant was required to file its Direct Testimony before receiving this information, it will be permitted to supplement its Direct Testimony within five days after receiving responses from GWT and CSS.
The Applicant also notes that
K.D.S.
[1] Attachments to Goodhue Wind Truth’s Motion for Protective Order.
[2] Goodhue Wind Truth Notice of Motion and Motion for Protective Order.
[3] Coalition for Sensible Siting’s Notice of Motion and Motion for Protective Order.
[4]
See
[5] Minn. R. 1400.6700, subp. 2.
[6]
See, e.g., Boldt v. Sanders, 261
[7] See, e.g., Hickman v.
[8]
G. Beck, M. Gossman & L.
[9]
Oppenheimer Fund, Inc. v. Sanders,
437
[10]
Boland v. Morrill, 270
[11]
G. Beck, M. Gossman & L.
[12]
2 D. Herr & R. Haydock, Minnesota Practice 9 (2d Ed. 1985), citing Detweiler Brothers v. John Graham & Co.,
412 F. Supp. 416, 422 (E.D. Wash. 1976), and County of Ramsey v. S.M.F., 298 N.W.2d 40 (
[13]
[14]
In re GlaxoSmithKline, 732 N.W.2d,
257, 271 (