Date: October 14, 1998

Case Nos.: 1998-SWD-3

In the Matter of:

Beverly M. Migliore
    Complainant

    v.

Rhode Island Department of
Environmental Management
   Respondent

   By document filed October 13, 1998, Complainant has submitted a Motion to Compel Discovery in the above-captioned matter, arguing that many of the objections raised by Respondent in its responses are not valid. Respondent is hereby ORDERED to submit an opposition to that Motion, if any, on or before the close of business Wednesday, October 21, 1998.

   By document filed October 14, 1998, Respondent has submitted a Motion to Compel Discovery, stating that Complainant has failed to timely respond at all to any of the

discovery requests. The Certificate of Service attached to the discovery requests indicates the documents were served by hand delivery to Attorney Andrews and mailed to Attorney Robins on August 14, 1998. As yet, Complainant has failed to respond.

   The Office of Administrative Law Judges' (OALJ) Rules of Practice require interrogatories and requests be answered within thirty (30) days of their service. See 29 C.F.R. Part 18.18(b) and 18.19(d). In this case, Complainant has clearly failed to comply with this administrative rule of practice. Complainant is hereby ORDERED to submit her responses to the Respondent on or before Wednesday, October 21, 1998.

   Both parties are hereby NOTIFIED that they should work cooperatively and expeditiously in completing discovery. The OALJ's Rules of Practice are clear in providing the appropriate methods of discovery, relevant time for responses and sanctions for failure to comply. 29 C.F.R. 18.13-18.22; 18.6. These rules are neither complicated nor unique to the OALJ and are easily susceptible to application by attorneys at law.

   Furthermore, this Judge notes 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. The Administrative Review Board has noted that, as a practical matter, parties are encouraged to make a good faith attempt to resolve discovery disputes without the intervention of an ALJ. Tracanna v. Arctic Slope Inspection Service, 97-WPC-1 (ARB 11/06/97). The parties should bear this precept in mind as they continue on their discovery course.

   In regards to the remainder of discovery, this Judge has been generally guided by the Administrative Review Board's decisions in the matters of Timmons v. Mattingly Test Services, 95-ERA-40 (ARB 6/21/96), and Seater v. Southern Calif. Edison Co., 95-ERA-13 (ARB 9/27/96).¹ In Timmons, the Administrative Review Board began its review of the Administrative Law Judge's (ALJ) recommended decision by summarizing principles concerning the evaluation of evidence of retaliatory intent in cases arising under the Energy Reorganization Act, a similar so-called whistleblower statute. See Timmons, at p. 5. See Also Seater, at pp. 3-6.

   In the context of whistleblower litigation, 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. Timmons, at p. 5. Accordingly, 29 C.F.R. Part 24.5(e)(1) provides that "formal rules of evidence shall not apply, but rules or principles designed to assure production of the most probative evidence available shall be applied. The ALJ may exclude evidence which is immaterial, irrelevant, or unduly repetitious." Applying this standard, it has been held that evidence as to deliberate violations of relevant regulations suggest antagonism toward the regulatory scheme and thus may provide support for an inference of retaliatory intent; that evidence of the past practice of the respondent in similar situations is relevant to determining

¹The parties may bear these cases in mind as a general guide to discovery. More persuasive cases may exist in regards to particular issues and are easily obtainable through legal research on the OALJ's internet site, www.oalj.dol.gov.