DATE ISSUED: Jun 26, 1990
CASE NO.: 90-ERA-40

In the Matter of

JOHN M. RAINEY, JR.,
    COMPLAINANT

    v.

WAYNE STATE UNIVERSITY,
LAFAYETTE CLINIC AND
HARPER HOSPITAL,
    RESPONDENTS

   Respondents, by counsel, move for a protective order prohibiting complainant's discovery of certain investigative records in connection with scientific misconduct by respondents charged by the complainant in this case, and for the adjournment of the deposition of Garrett Heberlein, scheduled for June 25, 1990, pending resolution of the motion for a protective order.

   This case involves a charge that the respondents discriminated against the complainant in retaliation for his engaging in an activity protected under the Energy Reorganization Act, 42 U.S.C. 5851, and implementing regulations contained at 20 CFR Part 24. The trial has been set for July 10, 1990 at Ann

Arbor, Michigan.

   Respondents object to complainant's request on discovery that they furnish "...tape recordings, transcripts, or other factfinding sessions of the Committee of Inquiry concerning an allegation by Dr. John M. Rainey under Wayne State University Executive Order 89.4." Motion at 2. They complain: that the subpoena form containing the demand for production of documents was fabricated; that the information requested is not relevant; and, that the information requested is confidential. In support of these allegations, respondents attached four exhibits which purport to demonstrate the deficiencies of the subpoena, irrelevance of the requested material, and the confidential nature of the investigative material.

   On June 21, 1990, the parties argued their respective positions in a conference telephone call placed by the Office of Administrative Law Judges. Complainant argued that certain actions taken against him as the result of the investigation are related to the protected activity, which is the subject of this complaint. Respondents argued that complainnt had an opportunity to develope this information is a prior complaint, but did not. Moreover, the information could not possibly be relevant to this case. And, respondents have an obligation for confidentiality in matter of the investigation.

   Upon consideration of the allegations and arguments of the parties, it is found: the form of the subpoena (which was issued in another case) is not controlling in determining whether the complainant is entitled to discovery of the items he requested; discovery can go forward with a notice of deposition, and request for production of documents, 29 CFR 6.5; discovery is permissable into any matter, which may be relevant or material; and, confidentiality is not shown to be a bar to respondent's obtaining information concerning an investigation regarding himself. Counsel for respondents was advised that he may raise an objection on grounds of relevance when the discovered data is offered for admission into evidence in the case. At the conclusion of the telephone conference call, the motions were denied.

   Counsel for respondents commented that there might be some problems for him and witnesses in the case to observe a schedule

for discovery and testimony at trial due to conflicting schedules, and unavailability. Indeed, he advised that he has a conflict which prohibits his attending a deposition scheduled by the complainant for 9:00 A.M. on June 25, 1990. His motion to adjourn this deposition, signed June 19, 1990, contains no hint of such conflict even though the thrust of the motion is the postponement of the deposition. This announcement, coming as it does two working days before the deposition, is viewed as an imposition on complainant.

   Both attorneys are advised that the case must move along as scheduled without unnecessary obstructions. Orders in aid of discovery will be entered, and sanctions will be applied where appropriate.

   It is ADJUDGED and ORDERED that the motions for a protective order and adjournment of the deposition of Garrett Heberlein be, and is hereby denied.

       GEORGE A. FATH
       Administrative Law Judge