DEC 24 1996
CASE NO.: 89-ERA-7/17

In the Matter of:

THOMAS J. SAPORITO, JR.
   Complainant

    v.

FLORIDA POWER & LIGHT CO.
   Respondent

   Complainant has submitted a Motion requesting that this Administrative Law Judge issue an Order compelling Respondent to produce certain persons for the purpose of being deposed. Complainant's Motion to Compel Respondent to Produce Employees for Deposition, pare. 6. The two persons are employees of Respondent Company, although they are neither supervisory nor managerial personnel.

   As grounds therefor, Complainant states his attempt to discover the addresses and telephone numbers of these persons has been met by objection from Respondent. This, Complainant argues, will result in an unfair disadvantage by preventing the deposition of two witnesses in possession of relevant and material information. Respondent's Response, pare. 5.

   Respondent objects to production of this information on the grounds that this is confidential information, the disclosure of which may infringe upon the persons' right to privacy. See Respondent's Response, EX A. Furthermore, Respondent accurately points out that it is under no duty to produce the persons for deposition and/or at the hearing because neither works in a managerial or supervisory capacity for Respondent Company.

   The Eleventh Circuit applies a balancing test in determining whether certain information is discoverable when opposed by a claim of the privilege of privacy. See Serina v. Albertson's, Inc., 128 F.R.D. 290, 292 (M.D. F1. 1989), (citing Farnsworth v. Procter & Gamble Co., 758 F.2d 1545 (llth Cir. 1985)). See Also Bradway v. American Nat. Red Cross, 132 F.R.D. 78, 80 (N.D. Ga. 1990). The Court must balance the plaintiff's interest in discovering relevant information and the privacy and confidentiality interests of the individuals involved. Serina, 128 F.R.D. at 292 (compelling Defendant corporation to produce the addresses and phone numbers of individual employees with relevant information).

   Although information contained in employment records might, under some circumstances, be included within the protected zone of privacy, the party posing the objection must show the particulars of the expectation of privacy beyond merely conclusory allegations that the employer considers such information to be private and keeps it confidential. Humphreys v. Caldwell, 881 S.W.2d 940, 946 (Tex. App. 1994).

   In this case, Respondent has asserted a general privilege of privacy. The information sought is not particularly sensitive nor of the kind that one would expect to be held in confidence. It is for these reasons that I find the balance to weigh in Complainant's favor.

   Accordingly, it is hereby ORDERED that Complainant's Motion be granted. I am tailoring my Order, however, to fit the sensitive nature of whistleblower litigation. Complainant shall serve the subpoena on the two persons identified at the employment address. In the event that said persons work in restricted access areas, Respondent shall ensure that the persons receive the subpoenas.

   I have issued this Order as a means of accommodating Complainant's right to discover relevant information and the employees' privacy right. The only alternative to this Order, which should satisfy all interested parties, would be an Order compelling disclosure of the employees' home addresses.

      DAVID W. DI NARDI
      Administrative Law Judge

Boston, Massachusetts

DWD:jw:las