Date: JUL 22 1997

Case No. 96-ERA-34

RONALD THOMPSON,
    Complainant

    v.

HOUSTON LIGHT & POWER COMPANY,
    Respondent

Case No. 96-ERA-38

RONALD THOMPSON,
    Complainant

    v.

HOUSTON LIGHT & POWER
COMPANY and
HOUSTON INDUSTRIES, INC.
   Respondents

   By document filed July 10, 1997, Respondents have submitted Motion to Compel Discovery in the above-captioned matter. Complainant timely filed Response to that Motion via facsimile on July21, 1997.

   I will begin by noting Kreuzfeld A.G v. Carnehammar, 138

F.R.D. 594, 607 n.3 (D.C. Fl. 1991), which states "it should be a rare occasion when the court is called upon to resolve" discovery disputes. Nevertheless, this Judge has been called upon a number of times to resolve disputes between the experienced counsel of record. Specifically, I refer to Orders issued on September 13, 1996 and April 23, 1997, the former of which stressed the necessity for counsel to work cooperatively and to resolve discovery disputes amongst themselves in a professional manner.

   I shall now turn my attention to the merits of the pending Motion. This Judge was surprised at Complainant's refusal to comply with the first three requests, as set out in Respondents' Motion at pp. 2-5, because the burden of proof concerning damages clearly rests upon Complainant. My surprise was somewhat lessened upon receipt of Complainant's Response, which this Judge construes to indicate the following:

   (1) Complainant refuses to produce his tax returns on the grounds that Respondents have failed to establish the information is not readily available from other source; that Complainant has already informed Respondent, under oath, that he has not obtained other employment since his resignation from Respondent; and that any other income does not constitute deductible interim earnings.

   Furthermore, the Complainant has contended that Respondents are in possession of that information which establishes Complainant's income for the relevant back pay period, i.e., the Respondents' payroll, and Complainant has stated under the pains and penalties of perjury that he has not obtained other employment. See Response, at p. 3. At the same time, however, Complainant's counsel has included 'wiggle' room in his Response to Respondents' Motion. Id. at p. 4, first full pare. This ambiguous language certainly raises the specter of possibility, in this Judge's mind, that Complainant has received additional income and that Complainant's counsel has unilaterally determined that this income is not deductible interim earnings.

   Such a determination is for this Judge to render. Accordingly, Respondents' Motion to Compel Complainant's tax returns is hereby GRANTED.

   (2) In regards to Respondents' Motion to Compel the records of Dr. Carter, Complainant's treating psychologist, Complainant states "complainant has informed respondents that he is seeking compensatory damages for damage to his professional reputation, but not for emotional distress." See Response, at p. 4. See Also Response at pp. 5-6. Complainant's counsel, having made this representation, is hereinafter bound by that statement and this Judge will not accept any evidence relative to a claim for compensatory damages based on emotional distress. Accordingly, Respondents' Motion to Compel these documents is rendered moot.

   (3) Similarly, Complainant's counsel has withdrawn his claim that disruption of medical benefits constituted discrimination in violation of the ERA.¹ Again, I shall reiterate that Complainant's

¹More accurately stated, Complainant's counsel has withdrawn his claim for violation of the ERA based on breached of the medical benefit section of the Settlement Agreement.