U.S. Department of Labor Office of Administrative Law Judges
John W. McCormack Post Office and Courthouse
Boston, Massachusetts 02109
Case No. 93-ERA-25
In the Matter of:
EDWARD P. HOLUB,
Complainant
v.
H. NASH BABCOCK, BABCOCK & KING, INC., FIVE STAR PRODUCTS, INC., U.S.
GROUT CORP., U.S. WATERPROOFING DIV., U.S. HIGHWAY PRODUCTS, INC., THE
NOMIX CORP., THE NASH BABCOCK ENGINEERING COMPANY, CONSTRUCTION
PRODUCTS RESEARCH, INC., INTERNATIONAL CONSTRUCT-TON PRODUCTS
RESEARCH, INC., FIVE STAR CONSTRUCTION PRODUCTS CANADA, INC., THE
BABCOCK CORPORATION,
Respondents
Appearances:
George W. Baker, Esq.
Bentley, Mosher & Babson, P.C.
For Complainant
Harold J. Pickerstein, Esq.
Trager and Trager
Michael F. McBride, Esq.
LeBoeuf, Lamb, Greene and MacRae
For Respondents
Before: JOAN HUDDY ROSENZWEIG
Administrative Law Judge
United States Department of Labor
DISCOVERY ORDER
In furtherance of the Complaint in the above-captioned case, on June 1, 1993,
[Page 2]
Complainant filed a request for production, including "Schedule A," which contains 34
requests for various documents, as well as a request to take the depositions of 31 of the Respondents'
employees upon Respondents' compliance with the requests for production. For their part, on June
16, 1993, Respondents filed a motion for a discovery conference; objections to and responses to
Complainant's requests for production; and two motions for protective orders. On June 18, 1993,
Complainant filed objections to Respondents' motions for protective orders, and on June 29, 1993,
Complainant filed a supplement to its objection to the motion for the protective order. Thereafter,
on July 8, 1993, Complainant filed a motion to compel; and on January 18, 1994,
Complainant filed an additional motion to compel compliance with
production. On January 18, 1994 Complainant filed a supplement to its objection to Respondents'
motion for protective order, and on February 3, 1994, Respondents filed responses to Complainant's
motion to compel compliance with production.
In view of the nature and breadth of Respondents' objections to the
Complainant's discovery requests, which shall be set forth infra, it is appropriate to begin
the discussion with a citation of Hickman v. Taylor, 329 U.S. 495 (1947), in which the
Supreme Court stated as follows:
The pre-trial deposition-discovery mechanism established by Rules 26 to 37 is
one of the most significant innovations of the Federal Rules of Civil Procedure. Under prior
federal practice, the pre-trial functions of noticegiving issue-formulation and fact-revelation
were performed primarily and inadequately by the pleadings. Inquiry into the issues and the
facts before trial was narrowly confined and was often cumbersome in method. The new
rules, however, restrict the pleadings to the task of general notice-giving and invest the
deposition-discovery process with a vital role in the preparation for trial. The various
instruments of discovery now serve (1) as a device, along with the pre-trial hearing under
Rule 16, to narrow and clarify the basic issues between the parties, and (2) as a device for
ascertaining the facts, or information as to the existence or whereabouts of facts, relative to
those issues. Thus civil trials in the federal courts no longer need to be carried on in the
dark. The way is now clear, consistent with recognized privileges, for the parties to obtain
the fullest possible knowledge of the issues and facts before trial.
Id. at 329 U.S. 495, 500. As noted by Wright and Miller, discovery has three purposes:
[Page 3]
(1) To narrow the issues, in order that at the trial it may be necessary
to produce evidence only on a residue of matters that are found to
be actually disputed and controverted.
(2) To obtain evidence for use at the trial.
(3) To secure information about the existence of evidence that may be used at the trial
and to ascertain how and from whom it may be procured, as for instance, the
existence, custody, and location of pertinent documents or the names and
addresses of persons having knowledge of relevant facts.
WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 2001
(1970).
The Hickman v. Taylor Court also spoke to the issue of the scope
of discovery:
[T]he deposition-discovery rules are to be accorded a broad and liberal
treatment. No longer can the time-honored cry of "fishing expedition" serve to
preclude a party from inquiring into the facts underlying his opponent's case. Mutual
knowledge of all the relevant facts gathered by both parties is essential to proper litigation.
To that end, either party may compel the other to disgorge whatever facts he has in his
possession. The deposition-discovery procedure simply advances the stage at which the
disclosure can be compelled from the time of trial to the period preceding it, thus reducing
the possibility of surprise.
Hickman v. Taylor, 329 U.S. at 507-508.
Rule 26(b), which governs discovery scope and limits, addresses the issue
of scope as follows:
Parties may obtain discovery regarding any matter, not privileged, which is
relevant to the subject matter involved in the pending action, whether it relates to the claim
or defense of the party seeking discovery or to the claim or defense of any other party,
including the existence description, nature, custody, condition and location of any books,
documents, or other tangible things and the identity and location of persons having
knowledge of any discoverable matter. It is not ground for objection that the information
sought will be inadmissible at the trial if the information sought appears reasonably
calculated to lead to the discovery of admissible evidence.
FED.R.CIV.P. 26(b)(1). As to limitations, the rule states as follows:
[Page 4]
The frequency or extent of use of the discovery methods set forth in subdivision
(a) shall be limited by the court if it determines that: (i) the discovery sought is unreasonably
cumulative or duplicative, or is obtainable from some other source that is more convenient,
less burdensome, or less expensive; (ii) the party seeking discovery has had ample
opportunity by discovery in the action to obtain the information sought; or (iii) the discovery
is unduly burdensome or expensive, taking into account the needs of the case, the amount
in controversy, limitations on the parties' resources, and the importance of the issues at stake
in the litigation. The court may act upon its own initiative after reasonable notice or pursuant
to a motion under subdivision (c) ["Protective Orders"].
Id. As alluded to above, the courts have construed Rule 26 as permitting liberal
discovery, holding that discovery must be related to the subject matter of the action rather than
circumscribed by a particular pleading. See generally UnitedStates v. I.B.M. Corp.,
66 F.R.D. 180 (S.D.N.Y. 1974). Further, the discovery sought need not be specifically relevant
in the first instance; rather, it is sufficient that the requested discovery lead to factual matter that is
relevant to the proceeding. In Mallinckrodt Chemical Works, the court considered Rule
26(b), and stated as follows:
The parameters of relevance in the context of any litigation is necessarily
imprecise. Most authorities admit that it is impossible to formulate a general rule defining
the word "relevance." (Citations omitted] Rule 26(b)(1) makes it clear that
admissibility at trial is not a limitation on discovery provided that "the information
sought appears reasonably calculated to lead to the discovery of admissible evidence."
The sweeping scope of this language led one distinguished commentator to suggest that
"discovery should be relevant where there is any possibility that the
information sought may be relevant to the subject matter of the action." [Citation
omitted] (Emphasis added).
Mallinckrodt Chemical Works v. Goldman, Sachs & Co., 58 F.R.D. 348, 353 (S.D.N.Y.
1973). The I.B.M. case, cited above, also provides a useful discussion as to scope:
The broad scope of discovery . . . is also reflected in an opinion by Judge
Leahy shortly after the adoption of the Federal Rules of Civil Procedure. In Hercules
Powder Co. v.Rohm & Haas Co., 3 F.R.D. 302 (D.Del. 1943), Judge Leahy
stated as follows:
"Unless it is palpable that the evidence sought can have no possible
bearing upon the issues, the spirit of the [then-]new rules calls for every
relevant fact, however remote, to be brought out for the inspection not
only of the opposing party but for the benefit of the court which in due
course can eliminate those facts which are not to be considered in
determining the ultimate issues. Id. at 304."
United States v. I.B.M. Corp., 66 F.R.D. at 186, fn.4. Finally, at least in terms of
how courts view the respective burdens on parties in discovery disputes, Fonseca v.
Regan, 98 F.R.D. 694 (E.D.N.Y. 1983), is instructive:
[Page 5]
The basic purpose of interrogatories is to discover facts under oath or learn
where facts may be discovered and to narrow the issues in the case for trial. Life
Music, Inc. v.Broadcast Music, Inc., 41 F.R.D. 16, 26 (S.D.N.Y. 1966);
U.S. v. 216 Bottles, More or,Less, etc., 36 F.R.D. 695, 701 (E.D.N.Y.
1965); United States v. Grinnell Corp., 30 F.R.D. 358, 361 (D.R.I. 1962). If a
party objects to interrogatories, the burden falls on that party to convince the court that
the interrogatories are improper and need not be answered. See Roesberg v. Johns-ManvilleCorp., 85 F. R. D. 292 (E. D. Pa. 19 8 0) ; In reFolding Carton Antitrust Litigation, 83 F.R.D. 260 (N.D.Ill. 1979).
Id. at 700.
Turning to the Complainant's production requests, the Respondents' particular
objections thereto and Complainant's responding motion to compel, I have found it helpful to
categorize them by the nature of the objection raised. With respect to ten of the requests for
production, the Respondents' have lodged objections of relevance, overbroad and unduly
burdensome, and have additionally characterized certain of these production requests as
"vague." Three objections go to relevance alone.
Relevance, of course, in a discovery context, goes to the nature, or subject
matter, of the complaint, rather than to its boundaries. In addition, as was noted in the
previously issued Order, "[t]he law is well settled regarding the appropriateness of extensive
discovery in employment discrimination cases. McDonnell Douglas Corp. v. Green, 411
U.S. 792, 804-05 (1973). Seegenerally 29 C.F.R. § 18.14. Further, the courts
have held that liberal discovery in these cases is warranted." (Order, June 24, 1993,
sl. op. at 16). There is another point to be made, alluded to above, that involves what might be
termed the sufficiency of the Respondents' objections, and there is case law which speaks
directly to this issue. In what might be broadly termed an asbestos product-liability case, the district
court was required to rule on objections to various interrogatories, the nature of the objections being
strikingly similar to those under consideration herein. The court noted that the plaintiffs had filed
fifty-seven separate interrogatories with all defendants, of which one (GAF Corporation),
"answered six but objected to the others as 'overly broad', 'burdensome', 'oppressive', 'not
reasonably calculated to lead to discoverable evidence' and privileged'. Plaintiffs then moved to
compel answers thereto, and the magistrate so ordered." Roesberg v. Johns-Manville
Corp., 85 F.R.D. 292, 295 (E.D.Pa. 1980).1Roesberg continues:
1Roesberg was specifically
followed in Compagnie Francaise D'Assurance v. Phillips Petro., 105 F.R.D. 16
(S.D.N.Y. 1984).
2But see Securities and
Exchange Com'n. v. Samuel H. Sloan & Co., 369 F.Supp. 994 (S.D.N.Y. 1973). This case
involved a Rule 34(b) motion by Sloan seeking to require the SEC to produce for inspection and
copying the transcript of a hearing before an administrative law judge of that agency to which
Sloan was a party. Sloan was represented by counsel. A transcript of the hearing was prepared
by a reporter, and all parties were entitled to purchase a copy of the transcript. Sloan chose not to
do so. The court noted that, "[a]t the conclusion of the hearing, the parties were called
upon to file proposed findings of fact and conclusions of law. The Commission, which had
purchased a copy of the transcript, allowed Sloan's counsel to come to its offices and examine its
copy of the transcript while he was preparing his proposed findings." Id. at 995.
The administrative law judge found for the Commission and against Sloan. Sloan filed a petition
for review with the Commission, and Sloan's counsel asked that the Commission release the
transcript for a period of one week for his use. The commission refused, and Sloan filed a Rule
34 motion, seeking to obtain by discovery what he had declined to purchase. The court stated as
follows:
It is well established that discovery need not be required of documents of
public record which are equally accessible to all parties. Komov v. Simplex Cloth
Cutting Machine Co., Inc., 109 Misc. 358, 179 N.Y.S. 682 (1919), aff'd., 191
App.Div. 884, 180 N.Y.S. 942 (1920). The court in Komov held that a party is
not entitled to discovery and inspection of matters of public record and denied plaintiff's
motion for discovery and inspection of the certificate of incorporation of defendant
corporation. The [administrative hearing] transcript is available to anyone, including
Sloan, by purchase from CSA Reporting Service. Like the certificate of incorporation in
Nomov the requested transcript is a public document available to movant and
thus, not discoverable from the commission.
Id. at 995--96. Distinguishing Sloan's situation from that of an indigent defendant in a
criminal proceeding, the judge concluded as follows:
To grant Sloan's motion would in the future allow all respondents in
administrative proceedings, regardless of how many parties may be involved, to obtain a
copy of the transcript on motion, thereby requiring the Commission to purchase
additional copies of the transcript and placing an undue burden on the Commission.
Id. at 996.
I find Sloan to be distinguishable from the procedural facts herein.
Thus, Sloan sought a transcript of a proceeding to which he was a party, and for no reason other
than to obtain a copy of that transcript gratis. By contrast, Complainant herein seeks a transcript
of a proceeding to which he was not a party, and which may contain evidence relevant (within
the meaning of Rule 26) to the instant case. Further, I find the Komov citation
inapposite to the case herein. I note initially that Komov was decided almost two
decades prior to the adoption of the Federal Rules of Civil Procedure, and respectfully suggest
that it does not stand for the broad proposition for which it was cited. Thus, "it is not
usually ground for objection that the information is equally available to the interrogator [footnote
omitted] or is a matter of public record (footnote omitted]." 8 WRIGHT & MILLER
§ 2014, at 111. See Riordanv. Ferguson , 2 F.R.D. 349 (S.D.N.Y. 1944),
Canuso, v. City ofNiagara Falls, 4 F.R.D. 362 (W.D.N.Y. 1945), Blau v.
Lamb, 20 F.R.D. 411 (S.D.N.Y. 1957). See also Rogers v. Tri-State MaterialsCorp., 51 F.R.D. 234 (D.C.W.Va. 1970), stating that, "[i]n 2A BARRON &
HOLTZOFF, FEDERAL PRACTICE AND PROCEDURE, § 766, pages 299-300 (1961),
the writers state[,] 'The fact that the information is already known to the interrogator is not a
valid ground for objection to the interrogatories. Interrogatories are not limited to facts which
are exclusively or peculiarly within the knowledge of the interrogated party. The fact that the
information sought is a matter of public record, does not render the interrogatories objectionable.
* * *.'" Id. at 245.
3The Gray court noted
that Dr. Gray might prove intent to discriminate if he could show that the faculty in question
harbored a racial animus against him and that this was manifested in the negative reappointment
and tenure votes, but that he would have to know the votes. "Or, he could establish that the
reasons given by the . . . committee for its actions were pretexts for its refusal to rehire and
tenure him -- if the committee had given reasons. 8 [ 8 Only if defendants explicate the reasons
for the denial of reappointment with tenure can Gray proceed to meet his burden of proof that the
nondiscriminatory motives advanced by the defendants are merely pretextual. . . . McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) . . . . ]."
The court continued:
Once Gray has established a prima facie case, the burden shifts to
defendants, note 8 supra, to articulate with reasonable specificity the reasons for
the denial of tenure and to produce some evidence in support thereof. If defendants fail to
do so the court will be required to enter judgment for Gray. If they discharge that burden,
the burden will shift back to Gray to prove discrimination either directly (i.e., by
persuading the court that a discriminatory reason more likely than not motivated the
defendants) or indirectly (i.e., by showing that the proffered nondiscriminatory
reason is mere pretext).
(Emphasis supplied).Id. at 905. The Gray court put it most succinctly:
"Merely by furnishing an after-the-fact statement of reasons the defendants cannot fill the
void left by the Committee's conclusory decision, (footnote omitted) especially in light of the
fixed policy against giving such reasons. But if unable to engagein discovery, Dr.
Gray cannot prove intent, and without proof ofintent, he has no case."
(Emphasis supplied). Id. at 906
4The Gray court noted
that, "[w]hile we have the flexibility to adopt rules of privilege on a case-by-case basis,
[citation omitted], we believe a cautious approach preferable. While we will not adopt such a
rule (i.e., a protective order) here, we do not decline to do so because the party claiming privilege
has failed to show a 'compelling justification' for it, as held in In re Dinnan, 661 F.2d
426, 430 (11th Cir. 1981), cert. denied, sub nom. Dinnanv. Blaubergs, __ U.S.
__, 102 S.Ct. 2904, 73 L.Ed.2d 1314 (1982).[Footnote omitted). Rather we prefer the balancing
approach taken by the district court, 92 F.R.D. at 90; (footnote omitted] we simply strike the
balance in this case differently." Gray, 692 F.2d at 904--05. While the
Gray court noted at footnote six that Dinnan compelled discovery of a faculty
tenure committee member's vote, and that they would express no opinion as to the
Dinnan result, the Gray court stated that, "we think the opinion accords too little
weight to the concerns for confidentiality in the academic tenure decision-making process."
Id. at 904--5, n.6. The case herein involves neither academic freedom nor freedom of
speech; and I again make note that Respondents have "provided no justification for their
position, compelling or otherwise.
5The 1993 amendments to the
Federal Rules of Civil Procedure have added a requirement to be met by any party seeking a
motion for a protective order. That additional language is shown in bold type as follows:
Upon motion by a party or by the person from whom discovery is sought,
accompanied by acertification that the movant has in goodfaith conferred or attempted to confer withother affected parties in an
effort to resolvethe dispute-without court action, and for good cause
shown, the court . . . may make any order which justice requires to protect a party or
person from annoyance, embarrassment, oppression, or undue burden or expense,
including one or more of the following:
(7)that a trade secret or other confidential research,
development, or commercial information not be revealed or be revealed
only in a designated way . . . .
See also 29 C.F.R. § 18.15(a) (6), which does not include the above-cited
amended language.
6The court declined to grant the
motion for a protective order based on First Amendment considerations.
7At footnote 43, the
Zenith court discussed the degree of injury required to be shown to support a request for
a protective order. They noted that, "'[v]ery serious injury' was required in United
States v. InternationalBusiness Mach. Corp., 67 F.R.D. 40 (S.D.N.Y. 1975).
Accord, Citicorp v. InterbankCard Ass'n., 478 F.Supp. 756 (S.D.N.Y.
1979); Reliance Ins. Co., supra. We question the appropriateness of and necessity for
the higher standard, under Rule 26(c)(7) . . . . * * * The 'very serious injury' standard of
United States v. I.B.M. may be limited to the particular facts of that case. Judge
Edelstein was confronted with a request that disclosure be limited in the fact of the Publicity in
Taking Evidence Act, 15 U.S.C. § 30 (1970), which mandated that depositions taken in a
suit brought by the United States under the antitrust laws be open to the public. That statute if of
no effect in the case before us." Id. at 891, fn.43.
A review of Chief Judge Edelstein's opinion, however, reflects that he
considered a broad range of precedent in reviewing the circumstances under which confidential
or trade secret information should be considered in camera. Noting that while courts
have traditionally protected trade secrets, "the case law does not articulate what showing
should be made by one seeking in camera treatment." United States v. I.B.M.,
67 F.R.D. at 45. He did look for guidance to proceedings before the Federal Trade
Commission. He continued:
In hearings before the Federal Trade Commission (FTC) certain commercial
data has also received in camera treatment despite the fact that the FTC deems that these
proceedings are required to be public. H.P. Hood & Sons,Inc., 58 F.T.C.
1184, 1186 (1961). To this end the FTC is guided by its rule of practice, 16 C.F.R.
§ 3.45 (1974), which states that in those unusual and exceptional circumstances
when good cause is found[,] documents and testimony offered in evidence may be placed
in camera. Good cause is shown when the party seeking protection demonstrates
that disclosure of the documentary evidence at issue will result in a clearly defined,
serious injury to the person or corporation whose records are involved. H.P. Hood &
Sons,Inc., supra; Graber Manufacturing Co. v.Dixon, 223 F.Supp.
1020 (D.D.C. 1963); TheCrown Cork & Seal Co., 71 F.T.C. 1714
(1967). The disclosure of a secret formula will almost invariably result in this injury, 58
F.T.C. at 1188--89, but the disclosure of two-and-a-half-year-old sales data will not. 71
F.T.C. at 1714.
Id. at 46.
8Chief Judge Edelstein also
addressed the definition of "trade secret" as it appears in Section 757 of the
Restatement of Torts. He stated as follows:
There it is suggested that a trade secret is any "formula, pattern, device
or compilation of information which is used in one's business, and which gives him [or
her] an opportunity to obtain an advantage over competitors who do not know or use it . .
. . It differs from other secret information in a business..... in that it is not simply
information as to single or ephemeral events in the conduct of the business, as . . . the
amount or other terms of a secret bid for a contract or the salary of certain employees, or
the security investments made . . . or the date fixed for the announcement of a new policy
or for bringing out a new model . . . ." It is suggested that a secret be in continuous
use in the business and may relate to the production of goods or to the sale of goods such
as a code for determining discounts, rebates, or a list of specialized customers. The
Restatement continues that a trade secret must be secret, communicated to others
under pledge of secrecy. It then lists the factors of secrecy to be considered when
determining if given information should be treated as a trade secret....... The Restatement
definition has been supported in both state and federal courts. [Citations omitted].
United States v. I.B.M., 67 F.R.D. at 46, fn. 9. See also page 31,
supra.
9Although Respondents bear the
initial burden of proving serious harm, I find that Complainant has nonetheless shown the
relevance of, and need for, the requested documents. Thus, they are crucial to a showing of
pretext and motivation for Complainant's suspension and discharge. The only issues to be
addressed by the court is whether full disclosure will seriously harm Respondents, and, if so, the
balancing of relevance and need by Complainant against serious harm to Respondents, and the
scope of a protective order, if any. See generally Deitchman v. E.R.Squibb & Sons,
Inc., 740 F.2d 556 (7th Cir. 1984), which notes that a protective order can be fashioned so as
to provide one party with the information required without doing needless harm to the
confidentiality interest involved.
10I note merely in passing that
Respondents' citation of D.Conn. Local Civil Rule 9(d)(4) appears to be somewhat of a non
sequitur. Thus, the text of that section states that, "[w]here a party has sought or
opposed discovery which has resulted in the filing of a motion, and that party's position is not
warranted under existing law and cannot be supported by good faith argument for extension,
modification or reversal of existing law, sanctions will be imposed in accordance with applicable
law. If a sanction consists of or includes a reasonable attorney's fee, the amount of such
attorney's fee shall be calculated by using the normal hourly rate of the attorney for the party in
whose favor a sanction is imposed, unless the party against whom a sanction is imposed can
demonstrate that such amount is unreasonable in light of all the circumstances." RULES
OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT,
1994 (West Publishing Co.) , at 917. In any event, local rules of Federal District Courts do not
generally control.
11But c.f. Union City Barge
Line, Inc. v. Union CarbideCorp., 823 F.2d 129 (5th Cir. 1987). While
endorsing the use of Rule 26(f) discovery conferences, the court noted that, "[a]pparently,
the admonition against overuse has been heeded. In a survey of reported litigation, less than fifty
cases have resorted to it (footnote omitted]." at 134. The court also recognized that the
Third, Eights and Seventh Circuits have recognized the rule with approval and encouraged its use
in an appropriate case. It is interesting to note, however, that in Union City, the party
moving for the discovery conference was the one which was unable to proceed with discovery
("Union City [Plaintiff] noticed twenty depositions and was able to take but two. Union
City attempted but was unable to depose any representative of Carbide or Gulf Coast. Union
City filed three motions to compel discovery and moved for a protective order to use
(confidential] discovery from a related case [footnote omitted]. In response, defendants filed
eight motions seeking protective orders, to quash subpoenas and to stay discovery."
Id. at 135). It is noted that the case herein presents the converse situation.
