Date: August 13, 1998

Case Nos.: 98-SWD-3

In the Matter of:

Beverly M. Migliore
    Complainant

    v.

Rhode Island Department of
Environmental Management
    Respondent

   By document filed via facsimile on August 11, 1998, the Complainant in the above-captioned matter has requested that the hearing, currently scheduled to begin on Monday, August 24, 1998, be postponed. In support thereof, the Complainant states that her local counsel has withdrawn from the case and new local counsel has entered a Notice of

Appearance on August 11, 1998 and that Complainant has, "just this week," begun her discovery. Respondent objected to the postponement by document filed via facsimile on August 12, 1998. Respondent argues that the Complainant's lead counsel has remained the same and should be able to proceed with the originally scheduled hearing date and that the brief time limits provided by statute and regulation demonstrate that such matters should be resolved expeditiously. If, however, the Complainant's Motion is granted, the Respondent informs the court of his unavailability prior to December 1, 1998 and requests that the Complainant's discovery requests be limited to the one day suspension that triggered this action.

   This Judge first notes that the Notice of Hearing scheduling this matter for hearing on August 24, 1998 was issued on July 2, 1998. There has been no stated reason for Complainant's failure to initiate any discovery until a mere two weeks before the hearing date and a mere one week before the Pre-Hearing exchange date. Nevertheless, it is clear that this delay renders the matter unfit for hearing as scheduled. Accordingly, the Complainant's Motion is hereby reluctantly GRANTED and the hearing, which was scheduled for August 24, 1998, is hereby CANCELED and POSTPONED at the request of the Complainant, who has thereby implicitly waived the time constraints provided by statute and regulation. A Second Notice of Hearing shall be forthcoming and the parties are advised that the new hearing date will be December 14, 1998, due to this Judge's heavy docket schedule and due to the scheduling conflicts for Respondent's counsel.

   It is not appropriate, at this time, to issue any kind of protective order in regards to discovery as requested by the Respondent. If Respondent has objection to any specific interrogatories, it can states its ground(s) for objection in its response and the Complainant may submit a Motion to Compel. Preliminarily, this Judge notes that "it should be a rare occasion when the court is called upon to resolve" discovery disputes. Kreuzfeld A.G. v. Carnehammar, 138 F.R.D. 594, 607 n.3 (D.C. Fl. 1991).

   Nevertheless, the following should provide guidance to the parties as they embark upon discovery. On the one hand, in retaliatory intent cases that are based on circumstantial evidence, fair adjudication of the complaint "requires full presentation of a broad range of evidence that may prove, or disprove, retaliatory animus and its contribution to the adverse action taken." Seater v. Southern California Edison Co., 95-ERA-13 (ARB September 27, 1996) at 4 (Citing Timmons v. Mattingly Testing Services, 95-ERA-40 (ARB June 21, 1996) (Footnote Omitted)). In cases filed pursuant to the SWD, the Office of Administrative Law Judges' Rules of Practice provide that material and relevant evidence shall not be excluded unless "unduly repetitious." See 29 C.F.R. Part 24.6(e)(1). Cf. 29 C.F.R. Part 18.403 (applying a cumulative standard). The question of relevancy is to be more loosely construed at the discovery stage than at trial. Oppenheimer Fund, Inc. v. Sanders, 98 S.Ct. 2380, 2389, 437 U.S. 340, 351 (1978) (unanimous decision).

   On the other hand, discovery requests should be tailored to the specifics of each case and broad, generalized discovery requests, while well-intentioned at the time of issuance, may lead the fact-finder to infer that the requests are not made in good faith but are designed to harass the opposing party and to greatly prolong/exacerbate the litigation process. There is some point at which past occurrences become too remote to have any real bearing on the matters at issue.

   The parties are hereby ORDERED to work cooperatively and expeditiously in completing discovery, keeping in mind the broad nature of the process. Specific disputes, if any, shall be submitted to this Administrative Law Judge.

       DAVID W. DI NARDI
       Administrative Law Judge

Boston, Massachusetts
DWD:jw