United States Department of Labor
Office of Administrative Law Judges Law Library

NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES, AND WAS LAST REVISED IN NOVEMBER, 1996.

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Motion to compel answers to interrogatories relating to coverage is granted. OFCCP v. Burlington Northern Railroad Co., 81-OFCCP-21, ALJ Dec. on Motions and Prehearing Order, February 8, 1984, slip op. at 7.

ALJ Rules of Practice and Procedure apply in the absence of analogous provisions in program rules. OFCCP v. Washington Metropolitan Area Transit Authority, 84-OFC-8, ALJ Order Denying OFCCP's Motion to Compel Discovery and Denying Defendant's Motion for Summary Judgment, September 26, 1985, slip op. at 1.

A party responding fully to a request for discovery is under no duty to supplement his or her response but must disclose identities of persons having knowledge of discoverable matters and must correct responses which were incorrect when made or have been superseded by subsequent developments. Id. at 2.

A party who responds to interrogatories in good faith, and later supplements and clarifies its initial responses and promises to supply additional information as soon as it becomes practicable to do so, has complied with the regulations regarding supple- mentary responses to interrogatories. Id. at 3.

Where the Solicitor failed to request a timely extension of time or a protective order, that failure constitutes a waiver of any objection, including a claim of privilege. OFCCP v. Crown Zellerbach Corp., 87-OFC-23, ALJ Discovery Order, June 6, 1989, slip op. at 3.

The Department of Labor objection to providing the details of the contract which allegedly established jurisdiction and was specified in its complaint was not made in either its initial or supplemental responses and therefore is waived. Id. at 10.

An interrogatory is not objectionable as burdensome if it relates to the details alleged in the administrative complaint, about which DOL would gather evidence in preparation of its own case. Id. at 10-11.

DOL is ordered to answer an interrogatory concerning the details of the contract establishing jurisdiction, even where DOL argues that the contract is not in its possession. Id. at 11.

DOL has sufficiently established that the interrogatory seeking information about DOL's compliance with 41 CFR 60-741.26(b), 60-741.26(g)(2), and 60-741.28(a) is not relevant to this case, because those regulations apply to a contractor's internal procedures to attempt to resolve an employee complaint prior to action by the DOL; here the action is being brought against the defendant on behalf of two "applicants," rather than employees. Id. at 16-17.

Despite OFCCP's assertion that the issue of the Defendant's prior compliance is irrelevant to the specific allegations of discrimination against the two job applicants at issue, OFCCP must answer the interrogatory concerning whether the OFCCP has ever certified the defendant as in compliance with Section 503. Id. at 17-18.

The initial burden of establishing the existence of and properly asserting the "informer's privilege" falls on the party opposing discovery. Id. at 21.

The "informer's privilege," as DOL concedes, is a qualified privilege, and the public interest in protecting the flow of information to aid law enforcement must be balanced against the defendant's need for disclosure. Id.

DOL's invocation of the informer's privilege is insufficient, because DOL failed to provide enough information to enable the court to determine the validity of the assertion. DOL failed to submit affidavits confirming the existence of employees whose identities need to be protected, and failed to request an in camera review of any other evidence to support the applicability of the privilege to this case. Id. at 21-23.

Under the regulations and the Federal Rules of Civil Procedure, interrogatories may only be served on persons who are "parties" to the litigation. The regulatory definition of "party" does not expressly include those persons who were allegedly discriminated against, although their complaints may be the basis of any action initiated by DOL. The two job applicants in this instant case, therefore, are not considered "parties" to the action and as such, interrogatories may not be served on these individuals. Id. at 25-26.

DOL does not have sufficient "control" over the job applicants, who are the alleged discriminatees in the case, to justify an order compelling DOL to obtain their individual employment history details. Id. at 26.

The only connection the applicants have to DOL is as reporters of potential wrongful activities by the defendant. They are outside persons with relevant knowledge of the facts at issue in this action, and as such are equally available to both parties for questioning. If the defendant, or for that matter, DOL wishes to obtain formal discovery from these two individuals, it may do so by deposition pursuant to 41 CFR 60-30.11(a). Id.

Where DOL filed its answers and objections to the Defendant's First Request for Production of Documents beyond the 25-day period allowed for responses to discovery requests under the regulations (41 CFR 60-30.9, 41 CFR 60-30.10), DOL has generally waived any objection to producing the documents requested. Id. at 28.

A claim of privilege, in contrast to a claim of relevancy, is generally narrowly construed, and the initial burden of establishing the applicability of an accepted privilege falls upon the party asserting that privilege (citations omitted). Id. at 32.

The intragovernmental opinion privilege applies to intragency memoranda and documents that record the deliberative predecisional process leading to an agency decision. The privilege, however, must be claimed in the form of an affidavit, rather than a mere assertion in a production answer, either sworn by the head of the agency which has control over the matter, or by an official with delegated authority from the agency head, after actual personal consideration by that officer (citations omitted). Id. at 33.

With the intragovernmental opinion privilege, the agency must demonstrate the precise reasons for preserving the confidentiality of the governmental communication, and must designate and describe those documents claimed to be privileged with sufficient detail so that the validity of the privilege may be determined. Id.

To assert the attorney-client privilege effectively, the party must at a minimum establish that any such communication concerned the seeking of legal advice, was between a client and an attorney acting in his professional capacity, was actually related to legal matters, and was made in confidence by the client with the intention that the communication would be permanently protected from disclosure by himself or by the legal advisor (citations omitted). Id.

DOL has made an untimely, inadequate and ambiguous showing that the requested documents constitute work product because DOL's general descriptions of various documents (e.g., "Letter," "Memo to File") do not provide enough information to determine the validity of DOL's claim. DOL has submitted no affidavits, no requests for in camera review of the documents at issue and a protective order. DOL has submitted insufficient information and argument to sustain an objection to production on the basis of work product. Id. at 35.

In response to a request for production, generally, when a party makes a good faith averment that the documents do not exist, or are not in its possession, custody, or control, the issue of failure to produce is resolved, so long as the party makes a sufficient showing that the documents requested are not within that party's "control" (citations omitted). Id. at 37.

With respect to a government agency that institutes an administrative enforcement proceeding, any obligation to disclose relevant information extends to the government as a whole under the broad definition of control, not just those materials in the immediate possession of the particular agency-plaintiff. Id.

Not only does the concept of control encompass documents in the

possession of the government as a whole, the DOL, under 41 CFR 60-741.24, has a clear legal right to obtain the requested documents from the specific contracting agency. Id. at 38.

DOL has sufficiently established that the federal tax returns of the two job applicants from 1982 to the present, and copies of all physical examinations taken by the two during the relevant time period, are not within DOL's possession, custody or control, and thus the defendant's motion to compel the production of documents is denied. Id.

If the defendant wishes to obtain any documents from the two job applicants, who are not "parties" to the enforcement proceedings, then it may do so pursuant to a subpoena duces tecum. Id.

Without more detail regarding any social Security records and benefit claims made by either of the two job applicants, to determine if such claims and related documentation are relevant to these proceedings, the defendant's motion to compel the production of all Social Security records is denied. Id. at 43.

DOL is not foreclosed from discovering additional government contracts, which would support its burden of proof that defendant was a government contractor during the relevant time, simply because the complaint provided more detail about one particular contract than is required. Id. at 46.

Even if DOL is attempting to "change its theory of the case" midstream, by requesting information regarding other government contracts, the defendant has not been prejudiced by any such shift in focus since the Administrative Complaint sufficiently notified the defendant that other contracts may be relevant to this action by using the plural form of the noun (i.e., contracts). Id.

The Federal Rules of Civil Procedure favor broad discovery by all parties of relevant evidence; relevant material is material admissible as evidence or material reasonably calculated to lead to the discovery of admissible evidence. OFCCP v. USAA Federal Savings Bank, 87-OFC-27, ALJ Rulings and Order on Plaintiff's and Defendant's Motions to Compel Discovery, December 20, 1989, slip op. at 2; ALJ Recommended Decision and Order on Motions for Summary Judgment, October 4, 1990; Secretary of Labor Final Decision and Order, March 16, 1995.

ALJ grants OFCCP's motion to compel contractor to provide

discovery regarding alternate bases for jurisdiction and

regarding single-entity issue, even though complaint alleged coverage based solely on defendant's FSLIC insurance contracts. Ibid.

Attorney-client privilege is applicable to documents containing communication between the client and attorney, based on then-confidential information which remains so, which was made for the purpose of rendering or obtaining legal advice. Ibid.

Privileged material must be excised from documents, where possible, without revealing the confidential information, and documents must be produced. Ibid.

The deliberative process privilege applies where disclosure of pre-decisional deliberative documents would discourage open, candid communication in the decision-making process or would mislead the public about the agency's policies or the bases for maintaining them. Ibid.

The deliberative process privilege must be invoked after personal consideration by the head of the agency with control of the matter or by a delegate acting under specific guidelines. Ibid.

Because the Secretary of Labor is the final adjudicator of cases filed under both the Executive Order and Section 503, s/he is not the proper official to assert the deliberative process privilege after personal consideration of the documents. Id. at 3.

The Director of OFCCP is the proper official to review deliberative material and invoke the deliberative process privilege in cases which the Secretary of Labor will decide because the Director is a political appointee with political accountability and because s/he is the highest official with detailed knowledge of the case who will not be performing judicial role in the case. Ibid.

ALJ grants OFCCP's motion to compel contractor to provide names, addresses, phone numbers, positions, dates of employment educational background and previous employment for all hires for two-year period because it will be significantly more burdensome on OFCCP to search for this information in contractor's records than it will be for contractor; contractor has greater familiarity with its own records. OFCCP v. Jefferson County Board of Education, 90-OFC-4, ALJ Order Denying Summary Judgment and Compelling Discovery, November 16, 1990, slip op. at 14 and 17; Consent Decree, May 7, 1991.

Even though discovery deadline had passed, ALJ rejects

contractor's argument that amendment of complaint is unfairly prejudicial. Rather, ALJ permits either party to apply for reopening of discovery and postponement of trial. OFCCP v. Jefferson County Board of Education, 90-OFC-4, ALJ Order Granting Motion to Amend Complaint, November 21, 1990, slip op. at 3; Consent Decree, May 7, 1991.

The regulation governing responses to admissions, 41 CFR 60-30.9(b), does not require less than FRCP 36(a), and thus, does not permit contractor to simply plead lack of knowledge in response to a request for admission. Rather, a failure to admit a request for lack of sufficient knowledge must also include a statement that a reasonable inquiry has been made. OFCCP v. Holly Farms Foods, Inc., 91-OFC-15, ALJ Order Denying Plaintiff's Motion to Deem Admitted Requests for Admission and for Summary Judgment, October 24, 1991, slip op. at 8; Consent Decree, June 2, 1993.

Deponent's statement that he lacked sufficient knowledge to answer questions regarding coverage does not constitute a "a refusal or failure" to answer under 41 CFR 60-30.11(c). Thus, ALJ declines to impose a "presumption that the answer, if given, would be unfavorable to the [contractor]." Id. at 9-10; Consent Decree, June 2, 1993.

It would not be unfair to require contractor to expend additional resources necessary to respond to discovery regarding work-on-the-contract issue after considerable expense of defending litigation because even if case were dismissed now for lack of jurisdiction, OFCCP could renew investigation to resolve the issue and, under 41 CFR 60-1.43, could require contractor to make available its records on Government contracts and subcontracts. OFCCP v. Rowan Companies, Inc., 89-OFC-41, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, slip op. at 7, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Memoranda prepared by OFCCP investigator do not fall within the deliberative process privilege because they are primarily factual and do not contain deliberations involving legal strategies or enforcement approaches, or a discussion of strengths and weaknesses of the case or policy pros or cons. Nor do they purport to place selective emphasis on particular facts, assign relative weight to a conflicting or ambiguous fact situation; there is no "intertwining of facts with a deliberative or policy making process or discussion. OFCCP v. USAir, Inc., 91-OFC-2, ALJ Order Granting Motion to Compel, November 10, 1992, slip op. at 2-3; Consent Decree, September 7, 1993.

The attorney/client privilege applies to communications intended to be confidential. Id. at 3.

The mere existence of an attorney/client relationship or even the exchange of information with an attorney is not enough to establish the applicability of the privilege. Ibid.

To effectively assert the attorney/client privilege, the party must at a minimum establish that the communication involved the seeking of legal advice, was between a client and an attorney acting in his professional capacity, was actually related to legal matters, and was made in confidence by the client with the intention that the communication would be permanently protected from disclosure. Ibid.

The attorney/client privilege applies to the communications themselves, not to any underlying facts or to the particular documents. Ibid.

Non-privileged portions of a multiple-subject document are not exempt from production. Ibid.

Documents which were prepared by EOS after Joint Review Committee meeting involving OFCCP personnel and their attorneys did not fall within the attorney/client privilege because no legal advise is specifically sought in the documents and none is reported to have been given; the documents were neither responsive to counsel's inquiries nor designed, formulated, or initiated by counsel. Id at 4.

In granting a motion for leave to amend a response to admission, a threshold condition is a cogent concern that the original admission fails to provide an accurate reflection of the subject matter addressed; the mistake may be corrected if the presentation of the merits will be served, and the party who justifiably relied upon the original admission will not suffer prejudice. OFCCP v. USAir, Inc., 91-OFC-2, ALJ Order Denying Motion To Amend Admissions, November 24, 1992, slip op. at 3-4, aff'd, ALJ Order Denying Motion To Reconsider and Motion to Limit, February 24, 1993, slip op. 1-4; Consent Decree, September 7, 1993.

Contractor's motion to amend a response to request for admission to state that it had no knowledge of complainant's handicap at the time of his rejection is denied on the grounds that contractor's original response (that it rejected complainant because of his handicap) is more likely to be true and the proposed amendment essentially changes the theory of contractor's defense thereby causing significant prejudice to OFCCP. Id. at 5-6, aff'd, ALJ Order Denying Motion To Reconsider and Motion to Limit, February 24, 1993, slip op. 1-4; Consent Decree, September 7, 1993.

Contractor waived its objections to interrogatories by failing to raise and advance its position regarding the validity of those objections in response to OFCCP's motion to compel discovery. OFCCP v. Rowan Companies, Inc., 89-OFC-41, ALJ Rec. Dec. and Order on Remand, January 4, 1993, slip op. at 4-5; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Because contractor's supplemental response to interrogatories was not signed and sworn to by the person making such answers in violation of 41 CFR 60-30.9 and FRCP 33(a), contractor has failed to answer any of the interrogatories. Id. at 5; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Because regulations governing administrative proceedings under Section 503 are silent as to whether sanctions are appropriate for failure to comply with discovery orders, the Federal rules of Civil Procedure apply. Id. at 5, n.7; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Because contractor failed to comply with ALJ discovery order requiring contractor to respond "fully" to OFCCP's interrogatories regarding coverage, ALJ imposes sanction resembling judgment by default under FRCP 37(b)(2)(c): i.e., ALJ holds that, under the principles set forth in WMATA, each complainant would have performed work on defendant's Government contracts, subcontracts, or oil leases. Id. at 6-7; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

The informer's privilege is in reality the government's privilege to withhold from disclosure the identity of persons who furnish information of law violations to officers charged with enforcement of that law. OFCCP v. Holly Farms Foods, Inc., 91-OFC-15, ALJ Order Granting In Part And Denying In Part Defendant's Motion To Compel, February 19, 1993, slip op. at 2; Consent Decree, June 2, 1993.

The purpose of the informer's privilege is to promote and protect the public interest in effective law enforcement, and the scope of the privilege is limited by its underlying purpose. Ibid.; Consent Decree, June 2, 1993.

Executive privileges must be invoked by the head of the agency or his/her delegee after actual personal consideration by that officer. Ibid.; Consent Decree, June 2, 1993.

Invocation of the informer's privilege by a DOL attorney, without any showing of a proper delegation of authority from the Secretary of Labor, was defective. Id. at 3; Consent Decree, June 2, 1993.

Although OFCCP's failure to have the Secretary of Labor invoke the informer's privilege would justify rejection of the claim of privilege, ALJ is reluctant to disregard the important policy underlying the privilege and, therefore, orders OFCCP to provide contractor with a more detailed description of the documents withheld on the basis of the privilege and, if contractor continues to challenge the assertions of privilege, OFCCP must submit documents for in camera inspection. Id. at 3-4; Consent Decree, June 2, 1993.

The party asserting that documents are protected by a privilege must give sufficient identification of the material withheld so that opposing counsel can determine whether the privilege ought to apply. Id. at 4; Consent Decree, June 2, 1993.

The party making discovery generally has the choice of discovery methods, and an interrogatory is not improper simply because the same information can be obtained by the use of a different discovery method. Id. at 5; Consent Decree, June 2, 1993.

The answering party may not limit his answers to matters within his knowledge and ignore information immediately available to him or under his control. Ibid.; Consent Decree, June 2, 1993.

All discovery requests are a burden on the party who must respond, and an interrogatory is not burdensome or oppressive because the interrogated party must expend considerable time, effort and expense in order to answer it. Ibid.; Consent Decree, June 2, 1993.

Contractor's motion to compel OFCCP to provide current addresses of the class members is granted; request is not burdensome. Ibid.; Consent Decree, June 2, 1993.

Contractor's motion to compel OFCCP to provide information

regarding class members' medical histories and medical releases is granted; OFCCP has control of the alleged discriminatees in that they stand to benefit from this action brought by OFCCP, in part, in their behalf. Id. at 6; Consent Decree, June 2, 1993.

ALJ grants contractor's motion to compel OFCCP to provide more exact back pay calculations. Ibid.; Consent Decree, June 2, 1993.

ALJ grants contractor's motion to compel OFCCP to provide more exact information regarding each class member's particular handicap. Id. at 6-7; Consent Decree, June 2, 1993.

ALJ finds that draft Notification of Results of Investigation falls within the deliberative process privilege. OFCCP v. USAir, Inc., 91-OFC-2, ALJ Order Granting In Part And Denying In Part Motion To Compel, February 23, 1993, slip op. at 1; Consent Decree, September 7, 1993.

ALJ finds that memorandum detailing a conversation between counsel and OFCCP supervisor which involved a candid appraisal of legal, procedural and other confidential evaluations of issues in case falls within the attorney client privilege. Id. at 2; Consent Decree, September 7, 1993.

ALJ finds that document containing EOS' handwritten compilation of facts concerning allegations and results of investigation not privileged and subject to disclosure. Ibid.; Consent Decree, September 7, 1993.

Although ALJ denied contractor's motion to amend a response to request for admission to state that it had no knowledge of complainant's handicap at the time of his rejection, ALJ denies OFCCP's motion for an order precluding contractor from raising at trial the issue of whether it ceased to consider complainant because he was not qualified for the job. OFCCP v. USAir, Inc., 91-OFC-2, ALJ Order Denying Motion To Reconsider and Motion to Limit, February 24, 1993, slip op. at 4-5; Consent Decree, September 7, 1993.

Contractor's admission that it rejected complainant because of his handicap obviates the need for OFCCP to commence discovery to prove that contractor knew about the handicap and considered it as part of its decision-making process. However, the admission does not foreclose the presentation of evidence by contractor documenting other factors which it considered in deciding to reject the complainant. Ibid.

In granting summary judgment for contractor on the grounds that complaint was not timely filed, ALJ declines to permit OFCCP to conduct further discovery on the issue of whether contractor should have been on notice of the violations prior to the late filing or whether contractor was prejudiced by the delay in filing. OFCCP v. Norfolk & Western Railway Co., 93-OFC-4, ALJ Rec. Order Granting Motion for Summary Decision, slip. op. at 4; reversed, Assistant Secretary Order of Remand for Discovery, July 20, 1995.

The ALJ's granting of the defendant's motion for summary decision, while the plaintiff's motions for discovery were unresolved was inappropriate. The plaintiff is entitled to present the best arguments it can in opposition to the defendant's motion for summary judgment. Therefore, the plaintiff must have access to information that could support its determination that a complainant's allegation, that he had been continuously refused reinstatement by the company for medical reasons since the date of his disqualification, constituted a continuing violation and was "good cause" to extend the filing date past 180 days. OFCCP v. Norfolk & Western Railway Co., 93-OFC-4, Assistant Secretary for Employment Standards Order and Remand, July 20, 1995, at 2-3, 5.

Because the plaintiff should also have the opportunity to make specific arguments in support of its opposition to a defendant's summary judgment motion, OFCCP had a right to discovery prior to responding to defendant's motion for summary judgment. Id. at 3, 5-6.

The Assistant Secretary has the authority to order a covered government contractor to comply with discovery. OFCCP v. Rowan Companies, Inc., Marine Division, 89-OFC-41, ALJ Second Recommended Decision and Order on Remand, March 11, 1996, at 5; exceptions pending, Administrative Review Board.

Even if Rowan is correct that subject matter jurisdiction may not be deemed established as a discovery sanction, all the usual sanctions provided for in the regulations at 41 CFR 60-741.28, including debarment and termination of contracts, are available as sanctions, under [circumstances in which an ALJ has found that a contractor has not complied with his order compelling discovery and had failed to timely resist OFCCP's motion to compel]. Id. at 4-6; exceptions pending, Administrative Review Board.

[P]arties upon whom interrogatories are served have occasionally responded by directing the interrogating party to a mass of business records or by offering to make all of their records available, justifying the response by the option provided by FRCP 33(c)(now 33(d)). Such practices are an abuse of the option . . . [A] Responding Party has the duty to specify, by category and location, the records from which answers to interrogatories can be derived. Id. at 6; exceptions pending, Administrative Review Board.

When a party responds to interrogatories by offering copies of voluminous documents and citing FRCP 33(c), the party propounding the interrogatories must demonstrate that the burden of deriving the answer is not substantially the same for both parties. "An important--often key--factor in weighing the respective burdens on the parties is the interrogated party's familiarity with it own documents," and "[a] respondent may not impose on an interrogating party a mass of records as to which research is feasible only for one familiar with the records." Id. at 7; exceptions pending, Administrative Review Board.

The Assistant Secretary held that a request for interrogatories, which calls for answers and the identification of documents for the time period from January 1, 1983 to September 4, 1992, was too broad and not reasonably calculated to lead to the discovery of admissible evidence because the affected class members were denied employment in 1984 and 1985. Id. at 9; exceptions pending, Administrative Review Board.

The Assistant Secretary sustained objections to OFCCP's interrogatories to the extent they went beyond the scope of the issue on remand: whether specific rejected applicants for employment and members of an alleged affected class were covered by the act. Id. at 10; exceptions pending, Administrative Review Board.

The ALJ held that Goodyear's opposition to OFCCP's entry upon its facility on the grounds that observation and videotaping by OFCCP would be extremely disruptive to its operation was insufficient, because it did not reveal the nature of the disruption, especially in view of the fact that Goodyear had no objection to OFCCP's videotaping nine other positions. Thus, general objections without specific support may amount to a waiver of the objections. OFCCP v. Goodyear Tire & Rubber Company, 94-OFC-11, Order Granting Plaintiff's Motion to Compel Entry Upon Designated Property and to Video Certain Jobs, April 11, 1995, at 2.

Assuming without deciding that OFCCP's position is correct and that the duty to accommodate includes transfer or reassignment to another position, then OFCCP's contention that the duties of positions that OFCCP seeks to discover may be relevant to the issues of remedy as well as liability. Such discovery is not baseless and therefore satisfies regulations 41 CFR §§ 60-30.1, and 60-30.10(b). Id. at 1-3.

The fact that invoices, corporate records, and packages containing location and date codes were no longer available to OFCCP when it conducted its discovery does not make OFCCP's burden to establish jurisdiction under the carry-out-the contract standard impossible or unworkable, nor license OFCCP to use creative measures to meet its burden. OFCCP v. Keebler Company, 87-OFC-20, Administrative Review Board, Final

Decision and Order, September 4, 1996, at 4; Motion for Reconsideration pending, Administrative Review Board.

Pursuant to Upjohn Co. v. United States, 449 U.S. 383, 395 (1981), and Hickman v. Taylor, 329 U.S. 495, 511 (1947), American may invoke the attorney-client privilege for any discovery request that requires the disclosure of the substance of a confidential communication between an attorney and client. American may invoke the attorney work product privilege for any requests to produce documents that were prepared in anticipation of litigation, in contrast to documents prepared in the normal course of business. However, American must identify and justify all instances in which it withholds information on the basis of these privileges. OFCCP v. American Airlines, Inc., 94-OFC-9, ALJ Order on Plaintiff's Motion to Compel Responses and for Admissions, January 19, 1995, at 2.

American generally objects to the discovery of any information that would violate the privacy of American or of any third party. However, in determining the extent to which privacy rights can foreclose discovery, courts generally "balance the interests." Farnsworth v. Proctor & Gamble, 758 F.2d 1545, 1547 (1985). Moreover, in OFCCP v. USAir, 88-OFC-17 (1990), the ALJ concluded that "OFCCP's interest in pursuing effective and informal discovery outweighs the privacy interests of those individuals whose addresses and telephone numbers are sought." Thus, the privacy interests of third parties do not constitute an absolute privilege. Id. at 2-3.

The Federal Rules of Civil Procedure only apply in the absence of an applicable regulatory provision. The implementing regulations for actions brought under Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. § 793, are found at 41 CFR Chapter 60. 41 CFR § 60-30.9 does not limit the number of interrogatories that a party may serve upon another party. Thus, the 25 interrogatory limit contained in FRCP 33 does not apply. However, the ALJ will impose a test of reasonableness. Id. at 3.

Given the vast amount of discovery material already generated in response to OFCCP's discovery requests, the ALJ declined to further expand the issues in this case and denied OFCCP's motion to compel responses to discovery requests pertaining to events that occurred subsequent to the period covered by the 1988-1989 compliance review. Id. at 4.

Since OFCCP has requested an order canceling all of American's government contracts until American has complied with Section 503, the identity of all these contracts is relevant to this action. Id. at 4.

The ALJ held that in his judgment the interests of all concerned will be served by ordering American to supply the requested telephone numbers and addresses for all former and current employees except those with authority to speak for the company; and, further, to supply addresses, either work addresses or home addresses, of former and current management employees with authority to bind the company for the limited purpose of allowing OFCCP to notice depositions. Id. at 9.

Finding OFCCP's subject requests overbroad and unduly burdensome and oppressive, the ALJ denied OFCCP's request to compel American to respond to its interrogatories concerning American's system of storing personnel information on computers. Ibid.

The ALJ granted OFCCP's request to compel American to respond to a second set of interrogatories which sought "facts and documents which American relied upon in support of each of the 24 affirmative defenses raised in its Answer, as well as the individuals with knowledge of such facts." The ALJ held that by raising affirmative defenses American has placed at issue the specific facts, documents, regulations and statutes upon which they are based. OFCCP is entitled to sufficient information regarding these affirmative defenses to enable it to prepare for trial. Id. at 9-10.

The ALJ denied OFCCP's motion for an order deeming admitted each of the matters asserted on the ground that American's response to OFCCP's requests for admission was not initially submitted as a sworn statement as required by 41 CFR § 60-30.9(b). The ALJ held that granting OFCCP's motion on the basis of American's failure to timely satisfy this technical requirement would foreclose a hearing on the merits of this case, and that OFCCP has failed to present factual evidence demonstrating that it has been prejudiced. Id. at 10-11.

The ALJ held, that absent a violation of a court order compelling responses to OFCCP's discovery requests and given that American's opposition to the requests is substantially justified, OFCCP's request to award expenses and attorney's fees incurred by OFCCP in seeking this order is denied. Id. at 11.