By Deryn Sumner
So far in this series, we’ve talked about when sanctions against agencies can be appropriate for untimely investigations or incomplete investigations. Now let’s move, with a sigh of relief for most of you, to a discussion regarding when either party can be sanctioned for failing to comply with discovery. Many of the key elements are the same as what we discussed in February. When deciding whether sanctions are appropriate for conduct during discovery, the Commission will look at (1) the extent and nature of the non-compliance, including the justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice, if any; and (4) the effect on the integrity of the EEO process.
Before moving for sanctions is appropriate, in almost every instance the moving party must first obtain a motion to compel the other side to fully respond to the discovery, whether it be written discovery requests or notices of deposition. If the non-moving party simply has not responded at all, a motion to compel will be very succinct (and should as always include evidence as to what efforts were made to resolve the matter before asking for the administrative judge’s involvement). If the non-moving party still fails to comply with discovery, even after being compelled to do so, then moving for sanctions may be appropriate.
Your motion for sanctions should go through each of the four elements listed above. If the party has not responded to discovery at all, then the extent and nature of the non-compliance is significant. Be prepared to explain how the lack of cooperation has harmed you during discovery. Some judges take the view that anything important to the case is already included in the Report of Investigation and further discovery is not really necessary. You should explain why the information you are looking for is important for the case. For example, I have yet to see a Report of Investigation that has a comprehensive collection of information regarding damages. If you are representing the agency, you need to have discovery on this prior to the hearing.
As 29 CFR 1614.109(f)(3) states, sanctions can include an adverse inference against the non-moving party, excluding evidence that would be helpful to the non-moving party from the record, awarding attorneys’ fees to a complainant, or dismissing a complainant’s hearing request and remanding the complaint to the agency for issuance of a Final Agency Decision. This last one is what we see most often in cases where the complainant fails to comply with discovery. Should that be the case, then the administrative judge may find it appropriate to dismiss the hearing request and order the agency to issue a FAD. Note, that does not mean the complaint itself is dismissed; the agency must still issue a decision on the merits. For agencies, sanctions for failing to cooperate in discovery can include excluding certain types of evidence that would support its argument or paying for the attorneys’ fees and costs (including deposition transcripts in some cases) for the complainant’s attorney to conduct the discovery. The best way to avoid such sanctions is to cooperate with discovery and communicate with the other side about what can be produced and what a reasonable timeframe for production is. Sumner@FELTG.com