UNITED STATES DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
Date: August 12, 1996
Case No.: 95-CLA-31
In the Matter of:
UNITED STATES DEPARTMENT OF LABOR,
Complainant,
v.
MERLE ELDERKIN, d/b/a
ELDERKIN FARM,
Respondent.
ORDER GRANTING SANCTIONS
This matter arises under the child labor provisions of section 12 of the Fair
Labor Standards Act, as amended, 29 U.S.C. § 212). An Order of Reference was filed with
this Office on July 18, 1995. A Notice of Docketing was issued on August 1, 1995, requiring the
parties to submit a prehearing exchange, and parties filed timely responses.
On September 5, 1995, the Department served discovery, including
interrogatories, requests for the production of documents, and requests for admissions, on
Respondent. On October 20, 1995, the Department sent a letter to Respondent informing him that
the requests to admit were deemed admitted because Respondent did not timely deny the requests.
The Department also notified Respondent that it would file a motion to compel if he did not respond
to the other discovery requests. This Office received a motion to compel responses to discovery
from the Department on November 24, 1995. The Department alleges that counsel for Respondent
averred that responses to the discovery was to be imminently filed.
On March 5, 1996, I issued an Order instructing Respondent to answer the
Department's discovery, and by Order dated March 20, 1996, Respondent was afforded twenty days
in which to submit a response. Respondent was informed that "failure to timely comply will
result in appropriate sanctions against the noncomplying party in accordance with 29 C.F.R. §
18.6(d)(2)." Respondent did not answer the discovery within the allotted time.
On April 29, 1996, the Department filed a motion for a default judgment
under 29 C.F.R. § 18.6(d)(2)(v). By letter dated May 14, 1996, counsel for Respondent
requested an extension of one week to reply to the discovery, stating that he had been out of town
and just received the motions. The Department opposed this motion. On May 22, 1996, Respondent
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filed the responses to the discovery. The Department renewed its motion for a default judgment due
to the tardiness and incompleteness of the responses.
On June 25, 1996, I issued an Order to Show Cause why a default judgment
should not be entered in this matter. The Rules of Practice and Procedure for Administrative
Hearings Before the Office of Administrative Law Judges, 29 C.F.R. Part 18, provide that:
If a party of an officer or agent of a party fails to comply with a subpoena or with an
order, including but not limited to, an order for the taking of a deposition, the
production of documents, or the answering of interrogatories, or requests for
admissions, or any other order of the administrative law judge, the administrative law
judge, for the purpose of permitting resolution of the relevant issues and disposition
of the proceeding without unnecessary delay despite such failure, may take such
action in regard thereto as is just, including but not limited to the following:
* * *
(v) Rule that a pleading, or part of a pleading, or a motion or other submission
by the non-complying party, concerning which the order or subpoena was issued, be
stricken, or that a decision of the proceeding be rendered against the noncomplying
party, or both.
29 C.F.R. § 18.6(d)(2)(v).
Respondent filed affidavits in response to this Order on July 12, 1996.
Respondent states that, although he was advised by his attorney to respond to the September 1995
discovery requests, he had a serious heart condition and was under the care of a physician
(Respondent's Affidavit ¶ 7). Respondent also avers that the only assistance that he had in
operating his large dairy farm was his son and that the requests for documents were voluminous and
burdensome; "[t]he records and documents as requested date back several years and it was
nearly impossible, given my medical condition and my inability to attend to several of these matters
, to gather the requested documents, if they even existed." (¶ 8). Although stating that
his records had once been kept in an orderly fashion, Respondent asserts the possibility that his
former wife "had confiscated . . . several of my records." (¶ 9). Respondent
submits that during January, February, and March 1996, he was under treatment for his heart
condition and that he "made every good-faith attempt to gather the information
requested." (¶ 10). In response to my March 5, 1996 Order, Respondent states that he
provided responses to Complainant's discovery requests on or about May 17, 1996 and that he was
not attempting to avoid complying with the Order (¶ 12). He reiterates that his health and the
operation of the dairy farm made it "extremely difficult" to comply with the discovery
request (¶ 13).
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Counsel for Respondent also submitted an affidavit, reminding that he and
Respondent had timely complied with all of the previous requests before the discovery motions. He
states that, although he tried to aid Respondent in gathering the necessary documents, Respondent
was "unavailable for substantial periods of time due to his illness." (Counsel's Affidavit
¶ 4). He notes that Respondent's records were never kept in an orderly fashion and that many
have probably been lost or taken by his ex-wife over the years (¶ 5). Counsel professes that
"at no time did [they] attempt to not comply with any of the requested material" (¶
6), that he spoke with the Department's attorney on several occasions, and that Respondent has made
a good-faith effort to comply (¶ 7). Like Respondent, Counsel states that they did not ignore
or proceed "without conscientiousness of the requirement to proceed in good faith."
The Department responded by letter dated July 16, 1996, strongly disagreeing
with Respondent's characterization of his "good faith" efforts to respond to discovery
and renewing the motion for sanctions. Counsel for the Department contends that the conversations
alleged by Respondent's counsel never occurred, although they had spoken previously; on December
8, 1995, the Department received assurance from Respondent's counsel that responses to the
discovery requests would be sent that week, and on January 19, 1996, counsel again assured that the
responses were being mailed that very day (See Department's letter dated May 21, 1996).
As the Department notes, though Respondent claims to have been under
medical care during January, February, and March of 1996, this does not explain his failure to reply
during the period of September through December of 1995, when the discovery requests were first
submitted. Furthermore, Respondent has offered no documentation to demonstrate exactly what his
medical condition was and how that would have prevented him from responding to discovery.
Notably, his health apparently did not preclude him from running his large dairy farm with no
assistance other than his son.
The condition of Respondent's records or documents is also not a valid excuse
for failing to request an extension or ignoring Complainant's discovery requests or this Office's
Orders. In addition, Respondent alleges that his records used to be in proper order until his divorce,
though his counsel attempts to explain Respondent's failure to participate through the poor condition
in which his records were always kept. These statements are obviously inconsistent and do not
justify Respondent's lack of diligence with regard to this matter. Counsel's reminder that Respondent
had timely complied with all of the previous matters in this case is also not persuasive as there was
only one prior filing, the prehearing exchange. Furthermore, Respondent's counsel's assurances, on
two separate occasions, that the responses to the discovery requests were forthcoming were
misinformed representations and statements he should have ensured before making such guarantees.
Respondent's statements are self-serving and inadequate to persuade me that
his health prevented him from filing a simple motion for an extension of time or otherwise
acknowledging his responsibility to respond during this nine month period. Despite their
protestations to the contrary, both Respondent and his counsel purposefully refused to respond to the
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discovery requests or my Orders, nor did they seek an extension of time in which they could attempt
to comply. Respondent flouted the discovery rules and demonstrated an obvious lack of respect for
this proceeding and this tribunal. However, as Respondent is now attempting and proceeding to
comply with my Order and the discovery requests, the sanction of a default judgment is too harsh,
and Respondent is sanctioned according to the other provisions of 29 C.F.R. § 18.6(d)(2).
Accordingly, IT IS ORDERED that it shall be inferred that the admissions,
testimony, documents, or other evidence that should have been produced are adverse to Respondent,
§ 18.6(d)(2)(i), that matters concerning which the Order was issued are taken as established
adversely to Respondent, § 18.6(d)(2)(ii), that Respondent may not introduce into evidence
or otherwise rely upon testimony in support of or in opposition to any claim or defense that was the
subject of these discovery requests at issue, § 18.6(d)(2)(iii), and that Respondent may not
object to the introduction and use of secondary evidence to show what the withheld admissions,
testimony, documents, or other evidence would have shown, § 18.6(d)(2)(iv).
