8-3001-17706-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF TRANSPORTATION
|
In the Matter of |
PROTECTIVE ORDER |
During a June 21, 2007 telephone discovery conference, Respondent
Comstock Construction (“Comstock”) sought the production of documents that
included the names of persons who provided information to the Department of
Transportation’s investigators, as part of an investigation of wages and labor
classifications for the above-referenced project. Firmly resolved to protect against reprisal
upon any government informant, or the chilling effect against future
disclosures by laborers on other projects, the Department opposes disclosure of
the investigatory materials to Comstock.
The undersigned conducted an in
camera review of
the documents.
Based upon the submissions of the parties at the June 21,
2007 telephone discovery conference, post-Conference submissions, the arguments
of counsel and a review of the investigative materials, the Administrative Law
Judge makes the following:
IT IS HEREBY ORDERED THAT:
1.
The
Department produce to Comstock’s counsel un-redacted copies of:
a.
Wage
Complaint Regarding Comstock Construction, Inc. – Dated October 31, 2001
(two-sided document);
b.
Investigators
Check on Compliance with Labor Provisions – Dated April 18, 2001 (two-sided
document); and,
c.
Investigators
Check on Compliance with Labor Provisions – Undated, but denominated “
2.
The
disclosure of the names or other identifying information of any employee
referenced in the items disclosed pursuant to paragraph 1, shall only be made
to counsel for the parties and other qualified persons. Other qualified persons includes:
a.
The
presiding Administrative Law Judge, the Administrative Law Judge’s staff, court
reporters and other employees of the Office of Administrative Hearings who may
be involved in further proceedings in this matter;
b.
legal
assistants and clerical staff to counsel;
c.
court
reporters and their associated staff;
d.
persons
who held a separate authorization to access this data, prior to entry of this
Order; and,
e.
other
persons as designated by the Administrative Law Judge in subsequent Orders.
3.
Qualified
persons who are not government officials, may only use identifying information
of the employees referenced in the items disclosed pursuant to paragraph 1, for
hearing preparation or other purposes relating to the resolution of OAH Docket
No. 8-3001-17706-2.
4.
Any
recipient of the non-public information pursuant to this Order agrees, by accepting
receipt thereof, to be subject to the jurisdiction of the Administrative Law
Judge in connection with any use or disclosure of non-public information.
5.
No
further reproduction of the documents disclosed pursuant to paragraph 1 may be
made, except that, as required in this litigation, copies, excerpts, or
summaries may be disclosed to persons authorized to receive such information
pursuant to this Order.
6.
If
protected information is discussed or used during the conduct of a deposition,
counsel shall take adequate steps so as to prevent the disclosure of protected
information to unqualified persons.
Additionally, counsel shall direct that any portions of deposition
transcripts which include protected information shall be separately designated
and secured against unauthorized disclosure.
7.
Upon the conclusion of this litigation, counsel for Comstock shall:
a) Return all documents
containing the information that is the subject of this Protective Order to Department’s
counsel.
b) Submit a complete and
accurate list of the names, employers and employment position (if applicable)
of each person to whom non-public information was disclosed by Comstock’s
counsel.
8.
This Order does not alter the classification of any data under the Minnesota
Government Data Practices Act or Minn. Stat. § 182.659, subd. 8.
Dated: July 13, 2007.
|
_s/Eric L.
Lipman _____________ |
|
ERIC L. LIPMAN |
|
Administrative Law Judge |
MEMORANDUM
Comstock’s request for the discovery
of investigative notes and materials places its demand at the intersection of
two important sources of law. On the one
hand, Minn. Stat. § 181.932, subd. 2, provides that “[t]he identity of any
employee making a report to a governmental body or law enforcement official”
regarding workplace violations of law is “private data on individuals as
defined in section 13.02.” By statute
and policy, the Department has legitimate interests in guarding against
inappropriate disclosures of such investigative information.
Yet, it is also true that the
information sought by Comstock is clearly discoverable under Minn. Rule
1400.6700. As part of a larger array of
due process guarantees, this Office’s discovery standards are generous:
Parties may obtain discovery
regarding any matter, not privileged, that is relevant to a claim or defense of
any party … Relevant information sought need not be admissible at the trial if
discovery appears reasonably calculated to lead to the discovery of admissible
evidence.[1]
Counsel for Comstock will benefit
from reviewing the un-redacted versions of documents, so as to assure
themselves that there are no inconsistencies in the statements of testifying witnesses
or other documents to be entered into the record.
In an effort to balance and
harmonize these competing interests, an in camera review of the
documents was conducted. Central to this
review was whether and how the privacy and policy interests identified in Minn.
Stat. §§ 13.03, subd. 6 and 181.932, subd. 2, might be reconciled with Comstock’s
interests in aiding the discovery of relevant information.[2]
At the conclusion of the review, it
is clear to the Administrative Law Judge that the Department’s legitimate
interests in guarding against inappropriate disclosures of investigative
information can be met and satisfied by a protective order limiting disclosure
to, and use by, only certain qualified persons.
[1]
[2] Compare generally, Commissioner v. Maguire Iron, Inc., OAH Docket No. 12-1901-16863-2 (2006) (http://www.oah.state.mn.us/aljBase/190116863.or.protect.htm); Commissioner v. CBI Na-Con, Inc., OAH Docket No. 8-1901-12038-2 (2006) (http://www.oah.state.mn.us/aljBase/190112038.po.htm).