Date: November 10, 1998

Case Nos.: 98-SWD-3

In the Matter of:

Beverly M. Migliore
    Complainant

    v.

Rhode Island Department of
Environmental Management
    Respondent

   This Order addresses several issues raised by Complainant's Motion to Compel filed in the above-captioned matter. I shall, prior to discussing the substantive issues raised in this Motion, briefly summarize the lengthy and contentious pre-hearing history of this claim.

   Beverly M. Migliore (Complainant) has had the responsibility of

implementing and enforcing the Federal Resource and Conservation Act as a RIDEM employee since 1986. On May 8, 1998, Complaint filed a complaint with the Occupational Safety and Health Administration (OSHA) alleging a violation of Section 7001(a) of the Solid Waste Disposal Act (42 U.S.C. 6971). Specifically, Complainant alleges that she was subjected to a pattern of retaliatory treatment at work beginning in August 1996 and culminating in her suspension from duty on April 13, 1998. (see Complaint, paras. 22-26)

   By document dated June 17, 1998, OSHA dismissed the claim, and on June 22, 1998, Complainant timely filed a request for hearing with the Office of Administrative Law Judges (OALJ). Subsequently, the case was docketed in the Boston office of the OALJ and a hearing was set for August 24, 1998. Shortly thereafter, this Judge postponed the hearing at the request of Complainant who had a change of counsel. The hearing was rescheduled, and remains scheduled, for the week of December 14, 1998.

   Following the Second Notice of Hearing, the parties have brought a number of motions in regards to discovery and procedural issues. On September 1, 1998, this Judge issued an Order Granting In Part Respondent's Motion for a Protective Order, which limited the relevant time frame for discovery in this matter to alleged protected activities occurring on or after August 1, 1995. Additionally, on October 14, 1998, I granted Respondent's Motion to Compel Complainant to comply with a discovery request. At that time, I reminded the parties of the relevant rules of practice and standards for discovery. Nevertheless, I am again faced with resolving yet another discovery issue.

   On August 11, 1998, Complainant served upon Respondent, by facsimile, a Request for Interrogatories and a Request for the Production of Documents. On September 10, 1998, Respondent replied, stating both general and specific objections to the requested discovery. Complainant alleges that Respondent's objections are invalid, and on October 13, 1998, filed a Motion to Compel Discovery.

   By document dated October 21, 1998, Respondent filed an Objection to Complainant's Motion to Compel Discovery, setting forth arguments against the requested disclosures and discovery. Concurrently, Respondent filed a second response to Complainant's request for interrogatories and request for the production of documents. Accordingly, this Judge ordered the Complainant to either withdraw or amend her motion to compel.

   By document filed November 3, 1998, Complainant filed an Amended Motion to Compel which addressed Respondent's general arguments in addition to challenging discovery disputes in regard to seven (7) interrogatories and four (4) document requests. By two documents filed November 6, 1998, Respondent has submitted its oppositions to the motion to compel. Respondent restates its general objections and also provides specific grounds for refusing to comply with Complainant's requests.

   As noted in prior Orders, proceedings under this statute are governed by the Proceedings for Handling Discrimination Complaints, 29 C.F.R. Part 24 (1998), as supplemented

by the Office of Administrative Law Judges' Rules of Practice. 29 C.F.R. Part 18. The former provide that although formal rules of evidence shall not apply, rules or principles designed to assure production of the most probative evidence available shall be applied. The administrative law judge may exclude evidence which is immaterial, irrelevant, or unduly repetitious. 29 C.F.R. 24.6(e). 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, I will again note the case of 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 Administrative Law Judge. Tracanna v. Arctic Slope Inspection Service, 97-WPC-1 (ARB Nov. 6, 1997). The parties should continue to 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 June 21, 1996), and Seater v. Southern Calif. Edison Co., 95-ERA-13 (ARB Sept. 27, 1996). In Timmons, the Administrative Review Board began its review of the Administrative Law Judge's 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 Administrative Law Judge 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 whether there has been disparate treatment, which may provide highly probative evidence of retaliatory intent; and that an Administrative Law Judge erred in refusing to admit on relevancy grounds two NRC investigative reports that were proffered by complainant because these reports were pertinent to the question of retaliatory animus among respondent's managers as these reports documented knowing, deliberate violations of NRC regulations by respondent's management. Timmons, at pp. 6-7.

   It is clear from the aforementioned regulation and precedent that in determining whether to admit evidence at hearing over an objection of relevance, an Administrative

Law Judge should apply a broad scope of relevance. It logically follows that the scope of discovery is even broader. See Mulligan v. Vermont Yankee Nuclear Power Corp., 92-ERA-20 (Administrative Law Judge 4/17/92).

   That said, I shall now address the Respondent's general and specific objections and the contested requests at issue.

   Respondent's first general objection concerns the service of the discovery requests by facsimile. Respondent argues that service by facsimile is an improper method for serving discovery requests, and that even if it were proper, Complaint still exceeded the page limitation mandated by the regulations. Accordingly, Respondent argues that despite its compliance with a majority of the request, it need not comply. Complaint, on the other hand, argues that service was proper, and that the specific rules relating to filing by facsimile refer to filings with the Office of Administrative Law Judges, and not other parties.

   The Office of Administrative Law Judges' Rule of Procedure provide: "Service of any documents upon any party may be made by personal delivery or by mailing a copy to the last known address." 29 C.F.R. §18.3(b). Further, 29 C.F.R. §18.3(f) states that service by facsimile may be permitted by an administrative law judge, and in such situations the parties should limit facsimile filing to twelve (12) pages or less.

   I conclude that both the Complainant's First Set of Interrogatories, and Complaint's First Request for Production of Documents were properly served upon Respondent. The filing instructions contained in 29 C.F.R. §18.3(b) state that a party "may" file by personal delivery of mail, but do not require those two methods. Rather, I conclude that service by facsimile is proper in this situation, especially in this modern age. I also note that the rules relating to service by facsimile upon the Office of Administrative Law Judges serve to promote convenience for all parties. For instance, the recommended twelve (12) page limit serves to prevent one party, or case, from monopolizing an OALJ facsimile machine. I recognize that the filings by Complainant well exceed twelve (12) pages, and may very well have been a nuisance to Respondent. Nevertheless, I find and conclude that the service is proper. I would recommend that in the future, however, the parties be more respectful in the amount of pages sent by facsimile to each other and this Court.

   Respondent next argues that several requests violate this Courts protective Order. In this Judge's September 1, 1998 Order, I stated that "Complainant shall be allowed to explore those alleged instances of protected activity in which she engaged on or after August 1, 1995." Respondent notes that many of the contested requests seek documents and information occurring prior to August 1, 1995. Complainant, on the other hand, notes that the order only applies to "instance of protected activity" occurring after the proscribed date, and argues that she should be permitted to obtain "certain comparative information prior to 1995," to aid in her case.

   I hereby reject Complainant's argument. The plain language of my September 1, 1998 Protective Order was clear, and Respondent when responding to Complainant's discovery requests, need only provide information on and after August 1, 1995.

   Respondent also objects to the discovery on the grounds that Complainant's Instructions violate the Rules of Practice. Both Complainant and Respondent have acknowledged that this issue has, to some degree, been rendered moot by the actions of Respondent in generally complying with the requests. Nevertheless, I conclude that the Instructions merely request that Respondent respond in a clear and organized method, as it apparently has done. Therefore, I reject this argument and overrule this objection.

Interrogatories # 3

   Complainant's third interrogatory requests that Respondent detail all conversations with either the Department of Labor or OSHA occurring on or after May 8, 1998. Respondent challenges this request as unduly burdensome and irrelevant, because it involves actions taken subsequent to the filing of the complaint and alleged action. Further, Respondent argues that "Requiring one party to waste time with this type of question will diminish OSHA's future efforts to resolve these disputes in that the parties will be circumspect in their participation in an investigation that leads to a de novo review."

   I reject Respondent's arguments, and hereby overrule Respondent's objections to this interrogatory. The parties are reminded that discovery and relevance in these proceedings is broad, and a wide range of evidence may prove or disprove retaliatory intent and action. Documents created and conversations occurring after the filing of a so-called whistleblower complaint could be useful in determining the substance of the claim of adverse action. Additionally, such statements, conversations, and affidavits could potentially be used for impeachment purposes in a later proceeding should a person offer contradictory testimony. Finally, this Judge has no reason to doubt that a party would be any less candid or forthright with investigators irrespective of my ruling on this motion. Therefore, as Respondent has failed to present a convincing argument for opposing this discovery, Complainant's motion to compel is granted in regards to this Interrogatory.

Interrogatories # 4-9

   These six interrogatories ask various, named representatives of Respondent to provide information concerning conversations they had concerning the Complainant and complaint after May 8, 1998. Complainant argues that such a request is narrowly tailored to only recent months and concerns relevant information because "in a case alleging continuing violations" such statements are "relevant to show ongoing retaliatory animus on the part of such named DEM officials."

   Respondent objects, arguing that these questions are "grossly overbroad" and "would be a full time job and could not be completed by the trial date" because the complaint could be read so broadly. Further, Respondent argues that the need for such discovery could be solved through deposition testimony, rather than responding to interrogatories.

   I hereby overrule Respondent's objection, as I find these requests concern relevant information that could lead to admissible evidence. Accordingly, the named individuals must comply with this request. I reject Respondent's argument that this material could be best obtained solely through a deposition, because a meaningful deposition can only be had when such documents and materials, if any, are provided to opposing parties prior to depositions. Therefore, I will grant Complainant's motion to compel in respect to these six interrogatories.

Documents #12-15

   At issue are four requests which refer to various documents, including, (12) documents related to the 1998 Programmatic Audit by the EPA; (13) documents related to Respondent's expenditure of EPA grant monies since fiscal year 1991; (14) documents related "to the carryover of federal EPA grant monies for fiscal year 1996 including, but not limited to, correspondence from DEM to EPA and from EPA to DEM"; and (15) "All EPA mid-year and end-of-the-year reviews of the DEM RCRA program since 1990." Complainant argues that such discovery may result in evidence which will "corroborate Complainant's protected disclosures by independently establishing the validity and reasonableness of Complainant's disclosures: namely, that DEM has failed to enforce RCRA properly." Further, Complainant argues that "[s]uch documents are also likely to contradict anticipated purported non-discriminatory reasons respondent may offer at trial for the adverse actions taken against Complainant by demonstrating that federal oversight officials began noting problems with the DEM RCRA program in 1996 after Complainant was stripped of management responsibility for the program and the current management was installed."

   Respondent, on the other hand, argues that these four requests constitute a "fishing expedition" and are not relevant to the issues in this case because they "extend beyond the date of the alleged discriminatory actions taken by DEM."

   I agree with the arguments made by Respondent, and refuse to compel discovery of these four requests. These requests involve documents and communications of an investigation of the EPA, most of which occur beyond the time limit established by my September 1, 1998 protective order. Further, Complainant seeks information solely to corroborate the complaint she made to EPA. Such supporting evidence, however, is not necessary. Complainant need only testify under oath as to the complaints she may to the applicable authorities. It is then up to the Respondent to show that such contacts did not take place. A complainant enjoys protected status as a whistleblower so long as he or she had a reasonable belief in the validity of his or her safety-related complaint, even if subsequent investigation reveals that the complaints were invalid. Accordingly, I find these four requests unnecessary and burdensome, and I will not compel their production.¹

¹ Respondent's request for a protective order regarding these four requests is rendered moot by my decision not to compel discovery of these documents.