Howick v. Campbell-Ewald Co., 2003-STA-6 (ALJ Feb. 21, 2003)

U.S. Department of Labor

Office of Administrative Law Judges 36 E. 7th Street, Suite 2525 Cincinnati, OH 45202 (513) 684-3252 (513) 684-6108 (FAX)

Issue Date: 21 February 2003
CASE No. 2003-STA-6

MARK E. HOWICK,
    Complainant,

    v.

CAMPBELL - EWALD,
    Respondent.

   On February 14, 2003, Complainant, Mark. E. Howick, submitted a letter containing several requests. One was a request "to correct the record," when no record has yet been made in this case, and the matter dealt solely with conversations that had been held between the parties or their counsel. This followed a similar letter/motion dated February 10, 2003 containing a request that contained two elements: one was for a protective order, and that it allow for simultaneous exchange of discovery responses. Respondent filed a reply on February 14, 2003.

   I ruled that the February 10, 2003 request provided no information warranting a protective order, and that it was, in fact, a request for an extension of time to comply with the prehearing order. I noted that Complainant made no representation that he had contacted the Respondent about its position on the request, and that there was no evidence presented that Respondent had engaged in conduct that would warrant such an order. However, I also noted that Respondent, in its reply, neither stated any reason how it would be harmed if the extension was granted, nor did it present any alternatives for resolution of the timing issues, considering the recent initial appearance of Complainant counsel's in the case.

   In the order, the prehearing conference admonition to the parties was repeated that I expected in such requests for extensions and like procedural matters, that the requesting counsel contact the opposing counsel, and state whether opposing counsel opposed it or not. This was not done in that case, nor has it been done to my satisfaction in the present letter. Further, I found that the request was to be construed as one for extension of time to file answers to interrogatories only. I also found that there was no substantial basis stated either by Complainant for protective order or for Respondent's opposition to an extension to the filing of answers to interrogatories to a date later than February 24, 2003, but before February 28, 2003, other than the fact that its counsel would be out of the country for a week or so, and that preparations had to be made for the March 1, 2003 deposition of Complainant. (On the latter, Respondent's counsel would have returned for a week.

   The request for an extension of time to February 26, 2003 for Complainant to file his answers to interrogatories was ordered, to accommodate Complainant's need for some additional time, and so that Respondent would have time to utilize the interrogatories for the March 1, 2003 deposition preparation. It was also ordered that Respondent serve its responses to interrogatories on the date scheduled, February 28, 2003 - also to accommodate the taking of the deposition.

   The present letter was received via facsimile on Friday, February 14, 2003, at about the time that my order on the February 10, 2003 letter was being transcribed and served on the parties via facsimile, and was not answered in that order. It requested an order "to correct the record"; sought "default judgment, adverse inferences and preclusions (sic) orders" and then solicited a default judgment, all in a one and a half page letter, sprinkled with various unsupported factual allegations and legal citations. No supporting documents were attached. It was not an appropriate filing.

   Upon reconsideration of the original order in light of the new letter, I am sua sponte amending my February 14, 2003 order, withdrawing it, and issuing the present order in response to both letters, denying those requests.

   As a first consideration, I find that the both letter requests must be denied due to the failure of the Complainant to abide by the regulations set forth in the above provisions. Attention is directed to the applicable regulations governing motions (29 C.F.R. §18.6), motions to compel discovery (29 C.F.R. §18.21) and motions for protective orders (29 C.F.R. §18.15), with the admonition that all provisions of the Regulations set forth in 29 C.F.R. Part 18 are applicable to this proceeding, and that the parties are responsible for reading and complying with them in all submissions.

   Secondly, it should be absolutely clear that only individual motions, accompanied by distinct memoranda in support of those motions, together with necessary supporting documents, are deemed to comply with those provisions. I am expecting, and direct, that counsel for the parties remain in reasonably constant, and civil contact with each other as officers of this court, and that they attempt, in good faith, to resolve all conflicts between them before the filing of a motion to order a matter that has been discussed. In all motions involving such procedural matters as requests for extension of time, or the setting and changes to dates, the filing party or counsel must contact opposing party or counsel concerning the need for the new dates or other procedural formality at a reasonable time to respond. Counsel are ordered to represent in the motion or the memorandum that the opposing party or counsel has been contacted, and that he either does or does not oppose the motion, with specific reasons and alternative proposals stated. The parties must set forth the issues over which they are deadlocked, and the reasons therefore. Further, I expect that official and personal considerations such as initial appearance of counsel, family illnesses and planned vacations or trips will be considered, just I would do, as long as such considerations are not abused.

   In the case of discovery or other non-compliance motions, as with the United States District Court's local implementing rules to Rule 37 of the Federal Rules of Civil Procedure, it is my requirement that all attempts to resolve discovery issues must be exhausted before the filing of any motions on the matter. No discovery documents are to be served on or filed with the undersigned unless and until those documents are needed to support a discovery motion. or motion for a protective order. Each discovery motion must be supported by applicable evidence, including a sworn statement by the individual that the facts represented are true and correct to the best of the knowledge and ability of the person so sworn. The statements must include a representation of the precise requests for discovery and the precise noncompliance that has occurred, together with a complete statement representing all efforts of the parties to resolve the discovery matters before filing respective motions to compel, or for protective orders. As is my practice, when necessary, an on-the-record hearing will be held, here, in Cincinnati, to determine unresolved issues. Therefore,

   IT IS ORDERED that:

1. The order of February 14, 2003, is withdrawn and replaced by this amended order and order;

2. The requests of February 10, 2003 and February 14, 2003 are denied for failure to follow the above Regulations found in 29 C.F.R. Part 18 in the filing of those motions;

3. To accommodate any necessary adjustments to schedules when the appearance of new counsel takes place in a proceeding, there is ample time prior to the scheduled June 10 - 13, 2003 hearing to alter the dates for completion of discovery and prehearing motions which are now rescheduled as follows:

Monday, April 21, 2003	Discovery cutoff date, (meaning the receipt by opposing parties of all discovery, not the final date for the initiation of it.)
Friday, May 9, 2003	Prehearing motions (Postmark date)
Friday, May 16, 2003	Replies to prehearing motions (Postmark date)
Monday, June 2, 2003	Final prehearing statements (due in this office)
Friday, June 6, 2003	Final prehearing conference call at 10:00 a.m.
Tuesday, June 10 through Friday, June 13, 2003	Hearing, daily: 9:00 - 5:00, Dayton, OH

4. The parties, through counsel, either resolve the outstanding discovery issues between them, including the due dates for complete answers to interrogatories, and the date of depositions, or file the appropriate discovery motions and supporting affidavits and documents, and replies, the unresolved issues of which will then be determined by the undersigned, with or without an on-the-record hearing.

      THOMAS F. PHALEN, JR.
      Administrative Law Judge