Date: July 2, 1997

Case Nos.: 97-CAA-2 and 97-CAA-9

In The Matter Of:

PAUL BERKMAN
   Complainant

    v.

U.S. COAST GUARD ACADEMY
   Respondent

    By document filed June 19, 1997 Respondent has moved this Judge to issue a Protective Order (1) limiting the number of witnesses to be deposed and to testify at hearing; (2) limiting the scope of discovery to relevant and material issues, and (3) precluding discovery of any matter that falls within the attorney-client privilege. Complainant has opposed the Motion by document filed via facsimile transmission on June 27, 1997.

    Respondent's Motion is hereby DENIED. This Judge declines to limit the number of witnesses to be deposed and/or testify at hearing for two reasons. First, I will note Respondent's assertion in its Motion, which is simply unattested to argument of counsel, that the proposed witnesses do not have any personal knowledge regarding the issues in the case. Depositions, however, are a method of discovery used specifically for the purpose of ascertaining an individual's knowledge, or lack thereof, of pertinent facts and to obtain that individual's statements under the pains and penalties of perjury. Second, Respondent's request to limit the number of witnesses at hearing is simply premature.

    Respondent also requests a Protective Order of Thomas Lennon and Thomas Mackell, both of whom are attorneys for the U.S. Coast Guard Academy. The attorney-client privilege is a privilege which must be asserted on a case specific basis in regards to those matters which satisfy the elements of that privilege. In this regard, I generally refer Respondent to this Judge's Orders issued in the matter of Paine v. Saybolt, Inc., 97-CAA-4 (3/21/97), which Orders are available on the Internet and/or from this Office. The appropriate course of action for Respondent is to produce these attorneys for deposition and to assert the attorney-client privilege as it appropriately applies.

    Finally, I shall address Respondent's request for a protective order in regards to what Respondent characterizes as Complainant's "exploratory discovery, " i.e., Complainant's attempt to discover information concerning the Respondent's previous environmental non-compliance and reporting issues. As previously stated, this Judge declines Respondent's request to issue a Protective Order. I will, however, provide the following ORDER in regards to the proper scope of discovery.

    While Complainant accurately points out that discovery is broad, see generally Complainant's Opposition at p.7 and cases cited therein, it is not an unbridled procedure. Complainant states he wishes to discover the Respondent's poor environmental compliance record as circumstantial evidence of Respondent's motivation for retaliating against the Complainant for reporting instances of environmental non-compliance. This information is relevant, however, only if in temporal proximity to the facts giving rise to Complainant's complaint and only if those persons alleged to have committed the retaliatory acts knew of the sought after information. Moreover, the specific factual underpinnings of each of the prior instances of non-compliance are not at issue and, therefor, do not need to be inquired into with particularity.

    Accordingly, this Judge strikes the following balance between Complainant's right to discovery and Respondent's right to have that discovery curtailed to reasonable limits: Complainant may inquire into those instances of the Respondent's previous environmental non-compliance and reporting issues that occurred on or after September 1, 1995 and may inquire into the basics of the occurrence, i.e., the nature of the violation and resultant reprimand, if any; the witnesses knowledge of it; and the role that knowledge played, if any, in relation to the witnesses allegedly wrongful conduct against Complainant.

      DAVID W. DI NARDI
      Administrative Law Judge

Boston, Massachusetts
DWD:jw