Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002
DATE ISSUED: February 27, 2001
CASE NO.: 2000-CAA-0020
In the Matter of:
MORTON E. CULLIGAN,
Complainant,
v.
AMERICAN HEAVY LIFTING SHIPPING CO. (AHL), LINCOLN NYE,
BOB SCHILLING, and MIKE C. HERIG,
Respondents.
ORDER CONCERNING DISCOVERY
The instant case is a case brought under the employee protection provisions of the Clean Air Act, 42 U.S.C. §7622 ("CAA"); the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9610 ("CERCLA"); the Water Pollution Control Act, 33 U.S.C. § 1367 ("WPCA"); the Safe Drinking Water Act, 42 U.S.C. §300j-9 ("SDWA"); the Solid Waste Disposal Act, 42 U.S.C. § 6971 ("SWDA" or "RCRA"); the Toxic Substances Control Act, 15 U.S.C. §2622 ("TSCA") [collectively referenced as "the Environmental Statutes"] and the Occupational Safety and Health Act, section 11(c) ("OSHA"). The Complaint was filed with this Office on September 7, 2000 and the case was assigned to the undersigned on September 12, 2000.
The matters now before me consist of (1) "Complainant's Motion to Compel Complete Answers to His Interrogatories and First and Second Requests for Production of Documents and Complainant's Motion for Protective Order" with exhibits, filed on January 10, 2001; (2) Respondent "AHL Shipping Company's Opposition to Complainant's Motion to Compel and Motion for Protective Order" filed by facsimile on January 15, 2001 (with hard copy and exhibits filed on January 18, 2001); (3) Respondent "AHL Shipping Company's Motion for Protective Order and Incorporated Memorandum" filed by facsimile on January 15, 2001 (with hard copy and exhibits filed on January 18, 2001); (4) Respondent "AHL's Motion to Compel Complainant's Discovery Responses and Incorporated Memorandum" filed by
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facsimile on January 15, 2001 (with hard copy and exhibits filed on January 18, 2001); (5) Complainant's Response to Respondent's Motion for Protective Order (along with a draft Order) filed on January 23, 2001; and (6) Complainant's Motion to Strike Misleading Arguments filed on January 23, 2001. Essentially what is involved is Complainant's challenge to the discovery responses by Respondent AHL (hereafter "Respondent") as inadequate, accompanied by Respondent's protective order request, and Respondent's challenge to Complainant's failure to respond to its discovery requests, accompanied by Complainant's protective order request. Previous motions were superseded by my November 2, 2000 Order (which, inter alia, required the parties to attempt to resolve discovery disputes informally) and/or have been withdrawn.
Although I would have preferred that the parties make additional efforts to work out the discovery disputes, it appears that such efforts have been unsuccessful to date and it would be of little use to require the parties to make further efforts. I also note that attorney Slavin contacted the undersigned by telephone on Friday February 23, 2001 for the purpose of ascertaining the status of the discovery motions and I advised him that I was working on the matter but had not issued a ruling. There was no discussion of the merits, as proscribed by 29 C.F.R. § 18.38(a), but I am advising the parties of the contact in accordance with the requirements of that section.
At the outset, I will advise the parties of my general philosophy concerning discovery. Objections based solely on relevancy without accompanying assertions of burdensomeness are disfavored, as it is often impossible to ascertain the relevance of discovery requests until they have been responded to. If there is an assertion and showing of burdensomeness, the need for the document or group of documents must be weighed against the burden on the responding party. While a showing of burdensomeness may not be made based solely upon the number of discovery requests, clearly overbroad requests will not be allowed, and parties cannot be allowed to forage through each other's filing cabinets. Objections based upon purely technical matters that could easily be corrected are also disfavored. Finally, objections based upon privilege must be accompanied by a description of the document or matter for which a privilege is claimed as well as a showing of privilege, unless a communication by or from an attorney to or from a client is involved, in which case the communication will be deemed to be protected by the attorney client and work product privileges without a further showing being required.
Complainant's Motion to Compel and Respondent's Opposition
The Complainant's Motion to Compel, and Respondent's opposition and associated motion for protective order, relate to Respondent's responses and objections to Complainant's First Request for Production of Documents, Complainant's Second Request for Production of Documents, and Complainant's First Interrogatories and Associated Request for Production of Documents. For the bulk of the responses, Complainant essentially argues that the responses are incomplete and/or unresponsive, that the definitions and instructions have not been complied with, and that the objections are boilerplate and/or meritless. Respondent's objections are primarily based upon allegations of burdensomeness, claims of lack of relevance, and claims of privilege. The assertions of both parties will be addressed with respect to the specific discovery requests involved, and the specific objections raised to each such request will also be addressed.
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Specific Points
There are also specific points that have been raised by Complainant (listed in the Conclusion section of Complainant's Motion to Compel at pages 11 to 12 and responded to in Respondent's opposition to Complainant's motion to compel and motion for protective order at pages 4 to 10). These points, some of which vary from the issues specifically raised in the discovery responses, will be addressed seriatim.
First, Complainant argues that Respondent has not provided all documents bearing Mr. Culligan's name (as requested in Request for Production No. 6). While the discovery request involved may be somewhat overbroad, no good faith attempt has been made by Respondent either to provide relevant information in response to the request or to describe the documents or categories of documents that potentially fall within the purview of this request. The response by Respondent and boilerplate objection is clearly insufficient and will not carry the day, unless a showing of privilege can be made. This issue will be addressed with respect to the specific discovery requests involved.
Second, Complainant argues that the Respondent has failed to provide all Coast Guard, AHL and other documents relating to The Monseigneur, including the Coast Guard's September 2, 2000 and October 31, 2000 inspections and investigations. There is no discovery request that exactly parallels this request, although Request No. 17 seeks similar information for all of Respondent's vessels during all periods of time. Unlike the objection to Request No. 17, Respondent's objection to this more specific request is based solely on relevance and there is no claim of burdensomeness. The response by Respondent and boilerplate objection would be insufficient if such a specific request were made. See the discussion relating to Request No. 17, below.
Third, Complainant argues that the Respondent has failed to comply with his definitions and instructions. In response, Respondent states that Complainant's objection is vague and also objects to the definitions as "burdensome, harassing and overbroad." I find Respondent's objection to be insufficient and I further find that the instructions are reasonable efforts to define terms used and, in fact, are not dissimilar to Respondent's own instructions (aside from the request for electronic copies on disks, discussed as the ninth point below). However, I agree with Respondent that the claim that Respondent has not complied with the definitions and instructions is insufficient to show that there has not been a good faith effort to comply. Although I disagree with Respondent's challenge to the definitions and instructions, I find no merit to this argument by Complainant.
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Fourth, Complainant argues that Respondent should provide a list of any of the documents that have been withheld, destroyed, lost or stolen. If documents relevant to the discovery requests have been destroyed, lost or stolen, I agree that the Respondent should be required to disclose such destruction, loss or theft. In addition, if documents have been identified that are responsive to specific discovery requests but are being withheld based upon claims of relevance or privilege, I agree that the Respondent should be required to identify each withheld document or group of documents with specificity, provided that communications between an attorney and a client need not be identified with specificity as such documents presumptively fall within the attorney-client and work-product privileges. See the discussion of Interrogatory No. 7, below.
Fifth, Complainant argues that Respondent has failed to provide legible copies of documents and Respondent has indicated that it will provide clearer copies of those documents that Complainant identifies as being illegible. This is a matter which the parties should resolve informally.
Sixth, Complainant argues that Respondent has failed to provide originals of documents for inspection and Respondent has indicated that it will allow Complainant to inspect requested originals at the offices of its attorney at a mutually agreeable date. This is a matter which the parties should resolve informally.
Seventh, Complainant argues that Respondent should provide complete contact information for crew members of The Monseigneur (as requested in Interrogatory No. 9 for all of Respondent's vessels) and Respondent objects to providing Complainant with the addresses or telephone numbers of any of the crew members due to concerns for their personal privacy and moves for a protective order preventing Complainant from contacting crew members except through its counsel. While fact witnesses who are not management officials with Respondent are subject to being contacted by either party, I agree that the privacy interests of the crew members should be respected when possible. Accordingly, if the Respondent is able to provide the crew members for interview or deposition, the Respondent will not be required to provide personal information concerning those crew members. Respondent may have a representative and/or attorney present during such interviews or depositions. For those crew members not made available for interview or deposition, addresses and listed telephone numbers should be provided.
Eighth, Complainant argues that Respondents should provide all documents sought in discovery requests, and specifically the NCARs. With respect to the NCARs, Respondent argues that they are protected by the self-critical analysis privilege but has merely stated, without supporting evidence, that they are protected by the privilege "(1) because the NCARs are products of internal evaluations; (2) because confidentially of these documents promotes the public policy of encouraging companies to perform self-evaluations; and (3) because such evaluations would terminate in the future if the results were disclosed." I will not rule on the applicability of this privilege at the
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resent time and will hold this matter in abeyance until Respondent has provided specific information (supported by affidavits and/or documents) identifying the documents involved and concerning the circumstances under which the NCARs were prepared, including the dates of the documents, by whom they were prepared, the purpose for which they were prepared, to whom the documents are disclosed, the manner in which they are disclosed, and (if applicable) the basis for determining that disclosure to Complainant would be contrary to the public interest. If the information requested is not provided within thirty days of the date of this order, the requested information and documents must be provided. This issue will be further addressed with respect to the specific discovery requests.
Ninth, Complainant argues that the Respondent has not provided it with a disk of responses in Word Perfect. In response, Respondent notes that its responses were formatted on a McIntosh computer and argues that the pertinent rules do not require it to provide a Word Perfect disk. I agree. There is no requirement that discovery responses be made in a particular format (other than hard copy, see 29 C.F.R. § 18.3), although, of course, the Respondent may voluntarily comply with such a request. Complainant's request is clearly meritless and is denied.
Tenth, Complainant argues that Respondent should make arrangements for him, his counsel, and their consultants to board, photograph, videotape and conduct interviews of crewmen on board The Monsigneur at a time and place to be arranged cooperatively. In response, Respondent argues (at page 9) that the "request to take photographs, videotapes and samples of toxicants' is irrelevant to Culligan's claims that he was terminated for engaging in protected activity." I disagree and I find that Complainant should be allowed access for that purpose. However, I agree that, although Complainant may interview or depose crewmen as potential fact witnesses, he need not be allowed to conduct ex parte interviews with ship personnel. As indicated above, the Respondent will be allowed to have a representative present during any interviews or depositions that Respondent has arranged. Complainant may, however, otherwise contact any other fact witnesses, including ship personnel, without Respondent being present, if Respondent declines to make such personnel available.
As a final matter, in his motion to compel at page 12, Complainant "respectfully requests that the Court Order that Daniel DuBois is a proper witness because he is responsible for safety and environmental compliance, and AHL has put its environmental record at issue by contesting the protected nature of Mr. Culligan's disclosures in its motions and discovery responses." In response, Respondent argues that Mr. DuBois was not involved in any manner with the decision to terminate Complainant and was not on the vessel at the pertinent time period and argues that his testimony would be irrelevant. Respondent therefore "moves for a protective order that Culligan is not entitled to interview or depose Mr. DuBois." While it is not clear that Mr. DuBois will be a relevant witness, and I decline to order that he is a "proper witness," I am unable to conclude that an interview or deposition of him will not lead to the discovery of admissible evidence. See generally 29 C.F.R. § 18.14(b). There is no valid basis for exempting him from being questioned on potentially relevant matters. Accordingly, Respondent's motion for protective order is denied.
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Respondent's Motion for Protective Order and Complainant's Response
In its Motion for Protective Order, Respondent argues that the "records and other documents requested and/or produced by AHL in its discovery responses contain confidential commercial information, trade secrets and private personal information" and specifically asserts its concern that Complainant will provide information disclosed during the course of discovery to the media. I will not rule on the applicability of this privilege at the present time and will hold this matter in abeyance until Respondent has provided specific information (supported by affidavits and/or documents) identifying the documents involved and supporting the assertion of the privilege. In the meantime, I am directing Complainant to refrain from disclosing information provided during the course of discovery to anyone except for his attorneys and consultants and to ensure that any information provided to his attorneys and consultants is not further disseminated until this matter can be resolved.
Complainant's Motion to Strike Misleading Arguments
Complainant's motion to strike essentially amounts to an additional response to Respondent's motion for protective order (and in further support of Complainant's motion to compel). Accordingly, it has been considered with respect to the merits of the issue and is otherwise denied.
Specific Discovery Requests and Responses:
Complainant's First and Second Requests for Production of Documents
The specific production requests and my rulings are listed below. Respondent need not respond to Request Nos. 2, 8, 12, 13, 17, and 18; Respondent need only respond to Request No. 14 based upon its interpretation of the Request; and Respondent shall respond to the remaining requests and either provide the documents requested or a list of the pertinent documents accompanied by a showing of privilege, as set forth below (except for communications between Respondent and its attorneys, which need not be listed.)
Request No. 1: I find that the objections on the basis that the request is "vague, burdensome, and harassing," that the request seeks information that is irrelevant and is not reasonably calculated to lead to the discovery of admissible evidence, and that the request is overbroad are meritless. With respect to the claim that the request seeks trade secrets, confidential information and self-critical analysis, as discussed above, I will not rule on the applicability of the privilege at the present time and will hold this matter in abeyance for thirty days, to allow Respondent to list the privileged documents and to provide specific information (supported by affidavits and/or documents) supporting the assertion of these privileges.
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Request No. 2: I find that the objections on the basis that the request is "vague, overbroad, burdensome, and harassing" and that the request seeks information that is irrelevant and is not reasonably calculated to lead to the discovery of admissible evidence are valid with respect to this request. Specifically, the request is overbroad and burdensome to the extent that it includes all NCARs ever filed on all ships owned by AHL.
Request No. 3: Respondent's objections on the basis that the request is "duplicative, vague, overbroad, burdensome, and harassing" and that the request seeks information that is irrelevant and is not reasonably calculated to lead to the discovery of admissible evidence are meritless. With respect to the protective order request discussed above, I will not rule on the applicability of the privilege at the present time and will hold this matter in abeyance for thirty days, to allow Respondent to list the privileged documents and to provide specific information (supported by affidavits and/or documents) supporting the assertion of these privileges
Request No. 4: Respondent's objections on the basis that the request is "vague, overbroad, burdensome, and harassing" and that the request seeks information that is irrelevant and is not reasonably calculated to lead to the discovery of admissible evidence are meritless. With respect to the protective order request discussed above, I will not rule on the applicability of the privilege at the present time and will hold this matter in abeyance for thirty days, to allow Respondent to list the privileged documents and to provide specific information (supported by affidavits and/or documents) supporting the assertion of these privileges
Request No. 5: I find that the objections on the basis that the request is "vague, burdensome, and harassing," that the request seeks information that is irrelevant and is not reasonably calculated to lead to the discovery of admissible evidence, and that the request is overbroad are meritless. With respect to the claim that the request seeks privileged information, as discussed above, I will not rule on the applicability of the privilege at the present time and will hold this matter in abeyance for thirty days, to allow Respondent to list the privileged documents and to provide specific information (supported by affidavits and/or documents) supporting the assertion of these privileges.
Request No. 6: Respondent's objections on the basis that the request is "vague, burdensome, and harassing" are meritless. With respect to the claim that the request seeks privileged information, as discussed above, I will not rule on the applicability of the privilege at the present time and will hold this matter in abeyance for thirty days, to allow Respondent to list the privileged documents and to provide specific information (supported by affidavits and/or documents) supporting the assertion of these privileges.
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Request No. 7: Respondent's objections on the basis that the request is "vague, burdensome, and harassing" are meritless. With respect to the claim that the request seeks privileged information, as discussed above, I will not rule on the applicability of the privilege at the present time and will hold this matter in abeyance for thirty days, to allow Respondent to list the privileged documents and to provide specific information (supported by affidavits and/or documents) supporting the assertion of these privileges.
Request No. 8: I find that the objections on the basis that the request is "impermissibly vague and overbroad" as well as burdensome (and possibly harassing) and that the request seeks information that is irrelevant and is not reasonably calculated to lead to the discovery of admissible evidence are valid with respect to this request. Specifically, the request is overbroad and burdensome to the extent that it seeks logs of any kind on all ships owned by AHL and it is unnecessary to consider the protective order motion on this request.
Request No. 9: I find that the objections on the basis that the request is "burdensome, and harassing," that the request seeks information that is irrelevant and is not reasonably calculated to lead to the discovery of admissible evidence, and that the request is vague and overbroad are meritless. With respect to the claim that the request seeks privileged information, as discussed above, I will not rule on the applicability of the privilege at the present time and will hold this matter in abeyance for thirty days, to allow Respondent to list the privileged documents and to provide specific information (supported by affidavits and/or documents) supporting the assertion of these privileges.
Request No. 10: Respondent's objections on the basis that the request is "vague, duplicative, burdensome, and harassing" and that the request seeks information that is private and confidential are meritless. Respondent shall provide all documents requested except for communications from or to its attorneys, to the extent that it has not already done so.
Request No. 11: I find that the objections on the basis that the request is "burdensome and harassing," that it is vague and overbroad, and that it seeks information that is irrelevant and is not reasonably calculated to lead to the discovery of admissible evidence are meritless. With respect to the claim that the request seeks privileged information, as discussed above, I will not rule on the applicability of the privilege at the present time and will hold this matter in abeyance for thirty days, to allow Respondent to list the privileged documents and to provide specific information (supported by affidavits and/or documents) supporting the assertion of these privileges.
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Request No. 12: I find that the objections on the basis that the request is "vague, overbroad, burdensome, and harassing" and that the request seeks information that is irrelevant and is not reasonably calculated to lead to the discovery of admissible evidence are valid with respect to this request. Specifically, the request is overbroad and burdensome to the extent that it includes all chemicals and compounds ever carried on board Respondent's vessels.
Request No. 13: I find that the objections on the basis that the request is "vague, overbroad, burdensome, and harassing" and that the request seeks information that is irrelevant and is not reasonably calculated to lead to the discovery of admissible evidence are valid with respect to this request. Specifically, the request is overbroad and burdensome to the extent that it includes essentially all files ("personnel and other business files") of all managers who either supervised Complainant or responded directly or indirectly to his concerns. However, Complainant is free to file a more specific discovery request (such as a request for all files referencing Complainant maintained by his supervisors or other personnel involved in disciplining him), at which time Respondents may make a specific assertion of and showing of privilege, if applicable.
Request No. 14: With respect to the objection that the request is impermissibly vague, I agree, and I find that the interpretation by Respondent that the request (which is confusing as drafted) should be confined to complaints made to EPA is based upon a reasonable means of interpreting the request. As so interpreted, the request is not overbroad, burdensome or harassing, nor is the information requested irrelevant. Respondent shall provide the requested documents to the extent that it has not already done so based upon this interpretation.
Request No. 15: I find that the objections on the basis that the request is "burdensome and harassing," that it is impermissibly vague and overbroad, and that it seeks information that is irrelevant and is not reasonably calculated to lead to the discovery of admissible evidence are meritless. Respondent shall provide the requested documents to the extent that it has not already done so.
Request No. 16: I find that the objections on the basis that the request is vague and overbroad is meritless. Respondent shall provide the requested documents to the extent that it has not already done so.
Request No. 17: I find that the objections on the basis that the request is "burdensome and harassing," that it is impermissibly vague and overbroad, and that the request seeks information that is irrelevant and is not reasonably calculated to lead to the discovery of admissible evidence have merit to the extent that the request relates to inspections of all of Respondent's vessels at any period of time. See the discussion of the second point appearing above.
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Request No. 18: I find that the objections on the basis that the request is "burdensome and harassing," that it is impermissibly vague and overbroad, and that the request seeks information that is irrelevant and is not reasonably calculated to lead to the discovery of admissible evidence have merit. In this regard, it is unclear what "[a]ll AHL, MM&P, Avondale Shipyards or Government documents in the offices of Respondent's Safety and Environmental managers" is intended to include, and if it is interpreted to include all documents in the managers' offices, it is clearly overbroad.
Request No. 19: I find that the objections on the basis that the request is "overbroad, burdensome and harassing," and that it seeks information that is irrelevant and is not reasonably calculated to lead to the discovery of admissible evidence are meritless. Respondent shall provide the requested documents to the extent that it has not already done so.
Request No. 20: I find that the objections on the basis that the request is "overbroad, burdensome and harassing," and that it seeks information that is irrelevant and is not reasonably calculated to lead to the discovery of admissible evidence are meritless. Respondent shall provide the requested documents to the extent that it has not already done so.
Request No. 21: I find that the objections on the basis that the request is "burdensome and harassing," that it is impermissibly vague and overbroad, and that it seeks information that is irrelevant and is not reasonably calculated to lead to the discovery of admissible evidence are meritless. The objections based upon the assertion that the requested "AHL personnel, labor safety, environmental and engineering manuals" potentially include "trade secrets, confidential commercial information, and information protected by the attorney-client privilege, work product privilege and self-critical analysis privilege" appear to be frivolous. Respondent shall provide the requested documents to the extent that it has not already done so.
Request No. 22: Respondent shall provide all documents requested except for communications from or to its attorneys, to the extent that it has not already done so.
Request No. 23: Respondent's objections on the basis that the request is "duplicative, overbroad, vague, and harassing" are meritless. Respondent shall provide the requested documents to the extent that it has not already done so.
Complainant's First Interrogatories and Associated Request for Production
I either find no merit or an insufficient showing with respect to the objections raised with respect to Interrogatory Nos. 1, 5, 8, 10, 15, 16, 17, 18, 19 and 20. Respondent shall make a good faith effort to respond to these Interrogatories to the extent that it has not already done so, and such responses shall be filed within thirty days. However, Respondent may make a specific showing of hardship in obtaining the requested information (providing specific information as to the efforts made and expense undertaken)
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and may also make a specific claim of privilege (identifying with specificity the basis for privilege, supported by the affidavit of a person with knowledge) in its responses. With respect to Interrogatory No. 20, Respondent is incorrect in asserting that interrogatories which seek conclusions of law are objectionable, as contention interrogatories are accepted discovery tools, and I will not strike down discovery requests based solely on the number filed.
With respect to Interrogatory Nos. 2, 6, 12, 13, 14, and 21, Respondent is correct that technically Complainant must file a separate request for production of documents which seeks the documents that have been identified in Respondent's interrogatory responses, and merely entitling a set of interrogatories as encompassing an associated request for production is insufficient. It is not necessary for Respondent to provide the identified documents until a supplemental discovery request is filed. However, the interrogatories are otherwise valid, and Respondent shall make a good faith effort to respond to these Interrogatories to the extent that it has not already done so, identifying pertinent documents, and such responses shall be filed within thirty days. As above, Respondent may make a specific showing of hardship in obtaining the requested information (providing specific information as to the efforts made and expense undertaken) and may also make a specific claim of privilege (identifying with specificity the basis for privilege, supported by the affidavit of a person with knowledge) in its responses. With respect to Interrogatory No. 5, Respondent's objection is meritless, as it seeks identification rather than production of documents.
I have found some merit to the objections made to Interrogatory Nos. 4, 7, 9 and 11. With respect to Interrogatory No. 4, the request appears to be overbroad in that it relates to any agreements and contracts ever entered into by Respondents on any matter, and Respondent need not answer it until it is made more specific. With respect to Interrogatory No. 7, see the discussion above with respect to the fourth point (relating to lists of documents not produced). With respect to Interrogatory No. 9, see the discussion above with respect to the seventh and tenth points (concerning contact with crew members). I agree that the request is overbroad to the extent that it seeks information relating to all employees who ever worked on any of Respondent's vessels, but as confined above it is acceptable. With respect to Interrogatory No. 11, I agree that it is overbroad to the extent that it seeks all events relating to all of Respondent's ships during any period of time, and Respondent need not answer it unless and until it is made more specific.
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Respondent's Motion to Compel and Complainant's Motion for Protective Order
Respondent asserts that it served discovery requests on Complainant on December 5, 2000, but has received no responses to date. A copy of the Respondent's First Set of Interrogatories and First Request for Production of Documents is attached to Respondent's motion. In his Motion for Protective Order (included as part of his motion to compel at page 12), Complainant requests that his responses not be due until ten days after he has received responses to his September 7, 2000 and subsequent discovery requests. He also suggests that a conference call might be useful. Pertinent rules require that responses to discovery be made within thirty days of service and I find no basis for delaying Complainant's obligation to respond or object within that period of time. If Complainant is unable to answer fully until he receives a response from Respondent, he can always supplement his answers when he has received further information. Accordingly, Complainant shall respond or object to Respondent's discovery requests within thirty days of the date of this Order. A conference call will be conducted after the parties have responded to the outstanding discovery.
ORDER
IT IS HEREBY ORDERED that Complainant's motion to compel is GRANTED IN PART, to the extent set forth above, and Respondent shall provide any requested documents not supported by a showing of privilege (as discussed above) and shall respond to the pending Interrogatories, to the extent set forth above, within thirty (30) days of the date of this Order; and
IT IS FURTHER ORDERED that Respondent's motion for protective order is HELD IN ABEYANCE, and Respondent shall have thirty (30) days to make a showing of privilege supported by affidavits and/or documents and identifying the documents involved and the circumstances under which they were prepared, including the dates of the documents, by whom they were prepared, the purpose for which they were prepared, to whom the documents are disclosed, the manner in which they are disclosed, and (if applicable) the basis for determining that disclosure to Complainant would be contrary to the public interest; and absent such a showing, the requested documents shall be provided within thirty (30) days; provided that Complainant shall refrain from disclosing information provided during the course of discovery to anyone except for his attorneys and consultants and shall ensure that any information provided to his attorneys and consultants is not further disseminated until this matter has been resolved; and
IT IS FURTHER ORDERED that Complainant's motion to strike is DENIED; and
IT IS FURTHER ORDERED that Respondent's motion to compel is GRANTED and Complainant's motion for protective order is DENIED, and Complainant shall respond to Respondent's discovery requests within thirty (30) days of the date of this Order; and
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IT IS FURTHER ORDERED that a telephonic prehearing conference will be held in this matter after the parties have responded as set forth above, on or about April 11, 2001, at which time any further discovery issues, including claims of privilege, may be discussed.
