U.S. Department of Labor Office of Administrative Law Judges
Federal Building, Suite 4300
501 W. Ocean Boulevard
Long Beach, California 90802
(562) 980-3594
(562) 980-3596
FAX: (562) 980-3597
DATE: March 19, 1999
CASE NO: 1998-ERA-37
In the Matter of
MARK GRAF,
Complainant,
v.
WACKENHUT SERVICES LLC,
Respondent.
ORDER GRANTING MOTION TO COMPEL, IN PART
AND GRANTING PROTECTIVE ORDER
This case arises under the Energy Reorganization Act of 1974, as amended,
42 U.S.C. § 5851 (the "ERA" or "Act"), and the regulations
promulgated thereunder at 29 C.F.R. Part 24. A formal hearing is currently scheduled before the
undersigned administrative law judge on April 5, 1999 in Denver, Colorado. The pre-hearing
deadline for completing discovery has been set for Friday, March 26, 1999.
BACKGROUND
On January 25, 1999, Complainant filed a Motion to Compel Respondent to
file answers to several interrogatories and document production requests, and to make two of
Respondent's employees available for depositions. On January 26, 1999, Respondent filed a
Response to Complainant's Motion to Compel. Respondent filed a request for a protective order on
January 27, 1999.
[Page 2]
On February 1, 1999, the undersigned issued an Order granting in part
Complainant's Motion to Compel, and granting Respondent's Motion for Protective Order. Therein,
Respondent was ordered to answer Complainant's Request for Production No. 21, which requested
"copies of documents explaining disciplinary actions taken against any employees for violation
of information release regulations." Said order was contingent upon the issuance of an
appropriate protective order. In addition, the parties were ordered to enter into a protective order to
shield Respondent's employees from embarrassment by keeping confidential any information
obtained at future depositions concerning their disciplinary and medical records. Counsel for both
parties were unable to agree on the conditions and precautions to be contained in a protective order.
As such, the undersigned issued an appropriate Protective Order on February 18, 1999, to protect
the privacy of Respondent's employees whose disciplinary and medical information might be
released to Complainant in response to either Request for Production No. 21 or future depositions.
2. Respondent is ORDERED to answer the following discovery request:
With the exception of financial data, identify and produce all documents in the possession,
custody or control of Mr. Gillison, Mr. Cosgrove, and/or their superiors pertaining to
whistleblower activities at Wackenhut between January 1, 1992 and the present.
Respondent may withhold a) settlement agreements; and b) information covered by the
attorney client or attorney work product privileges, pursuant to Fed. R. Civ. P. 26(b)(5).
Likewise, Respondent is ORDERED to answer deposition questions pertaining
to the above-mentioned documents. To protect the privacy of the employees whose
information shall be released, it is ORDERED that information disclosed under
this discovery request shall be governed by the terms of the Protective Order issued on
February 18, 1999.
3. Respondent is ORDERED to answer the discovery requests specifically
pertaining to Gary Cupp and Jeff Peters. The terms "all documents" and
"all written statements" shall be interpreted to mean a) documents contained in
the personnel file; b) documents maintained by the Human Resources Department relating
to whistleblower activities; c) all other correspondence and memos maintained by the
Human Resources Department relating to whistleblowers; d) memos reflecting in-house
investigations into whistleblower complaints, providing that said documents are not
privileged; and e) the EAP file. Respondent may withhold a) settlement agreements; and b)
information covered by the attorney client or attorney work product privileges, pursuant to
Fed. R. Civ. P. 26(b)(5). Likewise, Respondent is ORDERED to answer
deposition questions pertaining to the above-mentioned documents. To protect the privacy
of the employees whose information shall be released, it is ORDERED that
information disclosed under this discovery request shall be governed by the terms of the
Protective Order issued on February 18, 1999.
4. Complainant's Motion to Compel Respondent to answer all other discovery
requests discussed herein is DENIED.
5. The Protective Order issued in this matter on February 18, 1999, is incorporated
by reference.
Entered this 19th day of March, 1999, at Long Beach, California.
DANIEL L.
STEWART
Administrative Law
Judge
DLS: cdk
[ENDNOTES]
1These requests are broader than Request
for Production No. 21, which was limited to employees disciplined "for violati[ng] of
information release regulations."
2On March 18, 1999, counsel for
Respondent explained to my law clerk that the "EAP file" is a medical file containing
psychiatric evaluations of employees.
3On March 18, 1999, counsel for
Respondent explained to my law clerk that the "EAP file" is a medical file containing
psychiatric evaluations of employees.