U.S. Department of Labor
Office of Administrative Law Judges
1111 20th Street, N W.
Washington, D,C. 20036
DATE ISSUED: Jun 26, 1990
CASE NO.: 90-ERA-40
In the Matter of
JOHN M. RAINEY, JR.,
COMPLAINANT
v.
WAYNE STATE UNIVERSITY,
LAFAYETTE CLINIC AND
HARPER HOSPITAL,
RESPONDENTS
ORDER DENYING MOTION FOR PROTECTIVE
ORDER AND ADJOURNMENT OF POSITION
Respondents, by counsel, move for a protective order
prohibiting complainant's discovery of certain investigative
records in connection with scientific misconduct by respondents
charged by the complainant in this case, and for the adjournment
of the deposition of Garrett Heberlein, scheduled for June 25,
1990, pending resolution of the motion for a protective order.
This case involves a charge that the respondents
discriminated against the complainant in retaliation for his
engaging in an activity protected under the Energy Reorganization
Act, 42 U.S.C. 5851, and implementing regulations contained at 20
CFR Part 24. The trial has been set for July 10, 1990 at Ann
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Arbor, Michigan.
Respondents object to complainant's request on discovery
that they furnish "...tape recordings, transcripts, or other
factfinding sessions of the Committee of Inquiry concerning an
allegation by Dr. John M. Rainey under Wayne State University
Executive Order 89.4." Motion at 2. They complain: that the
subpoena form containing the demand for production of documents
was fabricated; that the information requested is not relevant;
and, that the information requested is confidential. In support
of these allegations, respondents attached four exhibits which
purport to demonstrate the deficiencies of the subpoena,
irrelevance of the requested material, and the confidential
nature of the investigative material.
On June 21, 1990, the parties argued their respective
positions in a conference telephone call placed by the Office of
Administrative Law Judges. Complainant argued that certain
actions taken against him as the result of the investigation are
related to the protected activity, which is the subject of this
complaint. Respondents argued that complainnt had an opportunity
to develope this information is a prior complaint, but did not.
Moreover, the information could not possibly be relevant to this
case. And, respondents have an obligation for confidentiality in
matter of the investigation.
Upon consideration of the allegations and arguments of the
parties, it is found: the form of the subpoena (which was issued
in another case) is not controlling in determining whether the
complainant is entitled to discovery of the items he requested;
discovery can go forward with a notice of deposition, and request
for production of documents, 29 CFR 6.5; discovery is
permissable into any matter, which may be relevant or material;
and, confidentiality is not shown to be a bar to respondent's
obtaining information concerning an investigation regarding
himself. Counsel for respondents was advised that he may raise
an objection on grounds of relevance when the discovered data is
offered for admission into evidence in the case. At the
conclusion of the telephone conference call, the motions were
denied.
Counsel for respondents commented that there might be some
problems for him and witnesses in the case to observe a schedule
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for discovery and testimony at trial due to conflicting
schedules, and unavailability. Indeed, he advised that he has a
conflict which prohibits his attending a deposition scheduled by
the complainant for 9:00 A.M. on June 25, 1990. His motion to
adjourn this deposition, signed June 19, 1990, contains no hint
of such conflict even though the thrust of the motion is the
postponement of the deposition. This announcement, coming as it
does two working days before the deposition, is viewed as an
imposition on complainant.
Both attorneys are advised that the case must move along as
scheduled without unnecessary obstructions. Orders in aid of
discovery will be entered, and sanctions will be applied where
appropriate.
ORDER
It is ADJUDGED and ORDERED that the motions for a
protective order and adjournment of the deposition of Garrett
Heberlein be, and is hereby denied.