By Meghan Droste, June 12, 2019

To close out our discussion of discovery tips, at least for now, I thought I would bring you a cautionary tale to illustrate just how important these points can be. As you know, any party that fails to meet its obligations in discovery — whether that’s the deadlines to initiate or respond to discovery, or the production of all relevant and responsive information — can find themselves on the receiving end of sanctions by an administrative judge (AJ). The sanctions will generally be relatively small, perhaps an adverse inference that someone said or did something that is at issue in the case. They can, however, be much more significant and result in the dismissal of the hearing request or the entry of default judgment.

In Dionne W. v. USAF, EEOC No. 0720150040 (Mar. 27, 2018) the AJ entered default judgment as a sanction against the agency. The Commission’s decision doesn’t list what the agency did, or did not do, in discovery, but it appears to have been significant. The complainant filed a motion for summary judgment based, at least on part, on the agency’s discovery failures and the AJ scheduled a status conference.

Prior to the status conference, the agency’s attorney withdrew his or her appearance due to leaving the agency, but the agency failed to notice the appearance of new counsel and no one appeared for the status conference on the agency’s behalf. Due to the issues with the agency’s discovery practice and its failure to appear for the conference, the administrative judge entered default judgment. As a result, the case moved directly to the damages phase, and the administrative judge awarded the complainant $185,000 in compensatory damages and $155,050 in attorney’s fees, and ordered the agency to place her in a new position.

The Commission upheld the administrative judge’s entry of default judgment on appeal and modified the award slightly. It appears from the Commission’s decision that the harassment and the resulting harm to the complainant were significant and severe, and as a result the agency might not have been able to prevail at a hearing on liability. Regardless, it lost out on that opportunity when it failed to meet its obligations. I may sound like a broken record on this, but be sure to take your discovery deadlines and obligations seriously.  If you don’t, you may end up having to explain why the agency did not have an opportunity to argue the merits of the case. Droste@FELTG.com

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