Howick v. Campbell-Ewald Co., 2003-STA-6 (ALJ Aug. 20, 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: 20 August 2003
Case No. 2003-STA-6

MARK E. HOWICK,
    Complainant,

v.

CAMPBELL-EWALD COMPANY,
    Respondent.

   This matter arises under the Surface Transportation Assistance Act of 1982 ("the Act" or "STAA"), 49 U.S.C. §§ 2305, and the regulations promulgated thereunder at 29C.F.R. Part 1978. Section 405 of the STAA provides protection from discrimination to employees who report violations of commercial motor vehicle safety rules or who refuse to operate a vehicle when such operation would be in violation of those rules.

   On July 28, 2003, counsel for Complainant submitted to the undersigned a document entitled "Complainant's Motions In Limine 1-10". Complainant's July 28, 2003 Motion, p. 1. Complainant seeks to bar the Respondents from the following:

1. Invading the zone of witness privacy with irrelevant, impertinent, coercive, vexatious questions about prior employment and activities unrelated to issues before the Court, including but not limited to any questions seeking to interrogate witnesses about the associations or the identity of other persons engaging in protected activity. (citations omitted);
2. Refusing to provide employees/contractors under Respondent's control;
3. Delaying the beginning of the hearing with extensive legal arguments;
4. Delaying witness testimony with unfair scheduling difficulties or time constraints;
5. Putting managers on the stand without reading and reviewing key documents;
6. Refusing to provide or bring documents based on dubious "relevance" or other objections contrary to the authority in DOL, (citations omitted);
7. Refusing to provide documents based on putative attorney-client privilege and work product doctrine protection, when any such privilege or protection has been waived, e.g. in support of an inchoate "advice of counsel defense";
8. Making "speaking objections" or speeches instead of stating the legal basis for objections as contemplated by the rules, or addressing Mr. Howick or his counsel instead of the Court or raising voices or otherwise showing incivility, disrespect or contempt or efforts to delay the proceeding; or
9. Placing under surveillance Mr. Howick, the Court, any present or former employee of Respondents or the Court, any witness or visitor, or any other associated persons (e.g. family, household or staff), including employees listed or interviewed pursuant to the Court's July 25, 2003 Order. (citations omitted);
10. Attempting ex parte contacts with the Court, directly or indirectly (e.g. through staff, family, work, charitable/religious, neighbor, business or other associations).

Id. Complainant then states that "[t]hese Motions should not be necessary but have the effect of restating reasonable expectations of probity applicable to administrative hearings." Id. Claimant's motion in limine contains two-and-one-half pages of string-citations, quotations, and unspecified arguments.

   Counsel for Employer submitted a brief in opposition to Complainant's motions in limine 1-10 on August 7, 2003. Employer argues that there is no need to enter any of the requested orders because there has been no showing by Complainant that Respondent has acted inappropriately during the litigation. Moreover, Employer recognizes that motions in limine are normally used to resolve predictable evidentiary issues, which Complainant has not identified.

   Complainant's motion is a frivolous waste of this Court's resources; it does not concern any specific evidentiary issue, it is not supported by affidavits or exhibits, and it is prematurely offered as no articles of evidence have been submitted for admission by Respondent.¹ Counsel for Complainant himself states in the motion that the motion is unnecessary - the motions in limine merely restate counsel's expectations of integrity applicable to administrative hearings. The Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges provide sufficient guidance and authority for the undersigned to regulate the proceedings of this matter. Broad authority is granted by 29 C.F.R. § 18.29(a)(7-9) to an administrative law judge, for the purpose of the hearing and in regulating the conduct of the proceeding, to exercise such powers vested in the Secretary of Labor as are necessary and appropriate, which allows an administrative law judge to apply the Rules of Civil Procedure and to do all other things necessary to enable him to discharge the duty of the Office. Moreover, 29 C.F.R. §§ 18.36, 18.37, and 18.38 provide sufficient standards of conduct to regulate parties appearing before an administrative law judge. Therefore,

   IT IS ORDERED that Complainant's motions in limine 1-10 are hereby denied.

      THOMAS F. PHALEN, JR.
      Administrative Law Judge

¹Counsel for Complainant is hereby cautioned against filing frivolous pleadings, motions, or other papers for an improper purpose or without evidentiary support for factual contentions. Moreover, counsel should refrain from using string-citations. It is not generally necessary to cite to more than the most recent case or the seminal case to support a proposition. If lengthy citations are necessary to articulate multiple contentions, then a short, parenthetical synopsis of each case should be provided to illustrate the proposition for which the case is cited. Citations should be to specific pages.