U.S. Department of Labor
Office of Administrative Law Judges
800 K Street, N.W.
Washington, D.C 20001-8002
CASE NO.: 91-ERA-4
In the Matter of
LINDA PORTER,
Complainant,
v.
BROWN & ROOT, INC., and
TEXAS UTILITIES,
Respondents.
ORDER
On April 13, 1992, Respondents filed a Joint Motion to
Compel attendance of Emilio Longoria and Sam Keeling for
discovery depositions, and for sanctions. Although it appears
that Respondents, via subpoena, gave Messrs. Longoria and
Keeling fifteen days and seventeen days notice, respectively, of
depositions scheduled for April 7 and 8, 1992, Respondents were
unable to depose the witnesses because of the witnesses, failure
to attend the depositions. Respondents submit that such failure
was the result of instructions from the witnesses, counsel, Mr.
David Leibowitz.
On or about April 16, 1992, Mr. Leibowitz telephoned me
and, after identifying himself as counsel for witnesses Longoria
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and Keeling, advised that due to his representation of an
enormous number of clients in other proceedings arising from
their employment with Respondents, he had been unable to attend
the depositions in question and for that reason had instructed
his clients not to attend. He offered that his intent in calling
was to assure this office that such instructions were the result
of his inability to be present at the depositions, not the result
of a lack of respect for this office. I instructed him to submit
such statement by letter with copies to counsel for the parties.
Attached is a photocopy of a letter from Mr. Leibowitz, sent to
my office by facsimile transmission. What is not contained
therein, is his telephone statement that Respondents often
simultaneously schedule depositions, involving his clients in
different claims, at two or more locations.
The rules of practice and procedure in whistleblower
actions before the Office of Administrative Law Judges are
codified at 29 C.F.R. Parts 24 and 18, respectively. Twenty-nine
C.F.R. § 18.22(c) requires not less than five days written notice
for the taking of a witness's deposition within the continental
United States.
Given that Respondents clearly gave adequate notice by
scheduling the depositions fifteen and seventeen days in advance,
the better course of action would have been for Mr. Leibowitz to
have timely voiced his objections to the time and place
designated for the depositions. However, what would appear to be
a blatant disregard for the subpoenas issued in this matter is
somewhat mitigated by the statements contained in Mr. Leibowitz's
letter. Specifically, it appears that this legal complication
could have been avoided with the placing of a single telephone
call, regarding an agreeable time and place for deposing the
witnesses, by Respondents to Mr. Leibowitz prior to "noticing"
the parties.
While it is imperative that all parties have a reasonable
opportunity to develop and present the evidence in support of
their respective positions, there is an inherent obligation on
counsel, as officers of the court, to avoid, where practical,
actions that will impede the resolution process. It is my
perception that this legal complication and, more importantly,
additional delay of the completion of discovery has been
occasioned both by Respondents' counsel's failure to attempt to
obtain a mutually agreeable deposition date prior to issuing the
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notice of deposition, and by Mr. Leibowitz's failure to timely
inform counsel for Respondents of his inability to attend the
depositions of his clients.
I am not sympathetic to Mr. Leibowitz's inability to timely
attend to such matters due to the number of his clients. This
impediment could have been avoided by his taking of fewer cases
or by the employment of additional staff. In any event, Mr.
Leibowitz's choice shall not in any way compromise Respondents'
opportunity to develop their evidence.
Likewise, to avoid future delays Respondents are encouraged
to attempt telephone contact with witness's counsel, if known,
prior to noticing depositions, in order to arrange a mutually
convenient time and place for deposition. If such cannot be
obtained, then a request for a subpoena with attending statement,
describing attempts to schedule the deposition and reason(s) why
such attempt was unsuccessful, shall be submitted to the
undersigned for consideration. Any other course of action that
results in further delays of completing discovery will be dealt
with expediently. Accordingly,
IT IS ORDERED that Respondents, in accordance with the
instructions above, attempt to reschedule the depositions of
witnesses Longoria and Keeling.
IT IS FURTHER ORDERED that Respondents supply, within
thirty days of the date of this Order, the authority for the
Secretary of Labor to impose the compensatory sanctions that they
seek in their Motion to Compel. Cases involving the authority of
a United States District Court to impose monetary sanctions,
without further implementing statutes or regulations, create no
authority for me to impose such sanctions.
The regulations at 29 C.F.R. Part 18 are generally
applicable to adjudicatory proceedings before the office of
Administrative Law Judges. 29 C.F.R. § 18.1(a). Therefore,
where the applicable regulations at 29 C.F.R. Part 24 are
incomplete, Part 18 may be referenced. Although these
regulations provide for sanctions against parties or agents of
parties, there is nothing to indicate their design for
application against non-parties and their counsel. See 29 C.F.R.
§ 18.6(d)(2). Additionally, while the Administrative Law Judge
may take any action authorized by the Administrative Procedure
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Act, 29 C.F.R. § 18.29(a)(6), power to enforce sanctions against
subpoenaed non-party witnesses lies with the appropriate district
court. 29 C.F.R. § 18.24(d). Finally, the Rules of Civil
Practice and Procedure for the District Courts (The Federal Rules
of Civil Procedure) are applicable to any situation not provided
for or controlled by the regulations. 29 C.F.R. § 18.1(a). The
regulations, however, stated immediately heretofore, address the
issue of sanctions for subpoenaed witnesses. Therefore, it is
unnecessary to apply the Federal Rules of Civil Procedure.
Upon Respondents, submission of sufficient authority for
the imposition of compensatory sanctions, I will consider their
request for such. A copy of their submissions, if any, shall be
served upon Mr. Leibowitz who shall have five days from receipt
thereof in which to respond.