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724 Discovery (also see 506)
The Commission lacks authority to order a state agency to pay costs and attorney fees for discovery motions filed by a complainant in a proceeding under the Wisconsin Fair Employment Act. Dept. of Transportation (Beaverson) v. Wis. Pers. Comm., 176 Wis. 2d 731, 500 N.W.2d 545 (1993)
Dismissal, though an extreme sanction, was appropriate where complainant failed to attend his scheduled deposition and the failure was intentional and in bad faith. Complainant refused to attend the deposition that had been scheduled with relatively short notice although it had been scheduled to take advantage of complainant's presence in Wisconsin to attend another Personnel Commission proceeding. The deposition had been discussed during two separate telephone conferences with the designated hearing examiner and the parties. Complainant also refused to respond to specific questions posed by the designated hearing examiner in a letter to the parties establishing a briefing schedule on respondent's motion to dismiss. Huff v. UW (Stevens Point), 97-0092-PC-ER, 11/18/98
Language in §804.02(1), Stats., relating to the perpetuation of testimony by deposition before an action in court has been filed, is inapplicable to a case that was already pending before the Commission. Huff v. UW (Stevens Point), 97-0092-PC-ER, 11/18/98
Pursuant to §227.46(1), Stats., and §PC 4.03, Wis. Adm. Code, a designated hearing examiner has the authority to act on discovery disputes between the parties to cases pending before the Commission. An examiner's oral ruling is a ruling made with the authority of the Commission. Huff v. UW (Stevens Point), 97-0092-PC-ER, 11/18/98
Information a party provides in response to an interrogatory is not controlling as to that information. While the party propounding the interrogatory is free to rely on the information by offering the answer in evidence, or by not objecting to the answering party's offer, he also can dispute the information contained in the interrogatory answer. Balele v. DOC et al., 97-0012-PC-ER, 10/9/98
In a complaint arising from the decision not to select the complainant for a vacant Administrative Officer 3 position, where complainant had not asked a preliminary question relating to whether the materials he submitted for the job were received by the employing agency and reviewed by the rating panel, and, therefore, had not established that the raters did not see all of his materials, he was not entitled to discover information about the clerical handling of the application materials. To rule otherwise would create an undue burden for the employing agency. Balele v. DOR et al., 98-0002-PC-ER, 7/7/98
Respondent's answer that "no statistics are available," was an inadequate response to a request for the number of times the agency had used a two-page executive summary for screening candidates for positions in 1997. That information is not available already in summary form does not meet the duty to respond. Balele v. DOR et al., 98-0002-PC-ER, 7/7/98
The responding party is not required to gather and create a document of the requested information at the responding party's own expense. However, the responding party has an obligation to produce what exists and if a requested compilation does not exist, the responding party must make available to the requesting party the documents from which the requested compilation could be derived. Balele v. DOR et al., 98-0002-PC-ER, 7/7/98
Complainant was not entitled to discover the minority hiring record for one of the persons involved in the subject hiring decision, where the record related to hires made while the person was employed by a different agency, citing Awe v. DATCP, 89-0040-PC-ER, 11/6/91. Balele v. DOR et al., 98-0002-PC-ER, 7/7/98
Complainant was not entitled to discover the salary paid to one of the persons involved in the subject hiring decision, either by his current or previous employer, because the inquiry was not reasonably calculated to the discovery of admissible evidence. Balele v. DOR et al., 98-0002-PC-ER, 7/7/98
In a complaint arising from a decision not to select the complainant for a vacant position, information as to how the successful candidate came to apply for the job is a topic that could lead to the discovery of admissible evidence. Balele v. DOR et al., 98-0002-PC-ER, 7/7/98
In a complaint arising from a decision not to select the complainant for a vacant position, information about connections between the successful candidate and someone who played a part in the hiring decision could lead to the discovery of admissible evidence. Balele v. DOR et al., 98-0002-PC-ER, 7/7/98
In a complaint arising from a decision not to select the complainant for a vacant position, a request for all correspondence between two offices, with no limits as to either subject matter or time, was too broad. Balele v. DOR et al., 98-0002-PC-ER, 7/7/98
The closed record protections of §230.13, Stats., pertain to keeping personnel matters closed to the public, not to a complainant in the context of litigation where the information is relevant to the complainant's claims. Balele v. DOR et al., 98-0002-PC-ER, 7/7/98
Complainant's attempt to identify a pattern of discrimination in faculty hires and promotions, regardless of which individuals made the hiring decision, was an area of inquiry that could lead to the discovery of admissible evidence relevant to a claim arising from a decision not to select the complainant for a vacant position in the College of Business. Complainant's motion to compel discovery of the names of persons hired or promoted in the College of Business for a ten year period was granted. However, where the issue for hearing only referred to a claim of sex discrimination, complainant's motion to compel was denied with respect to her request to discover the age of the persons hired/promoted. Ready v. UW (La Crosse), 95-0123-PC-ER, 7/1/98
Discovery inquiries relating to the names of persons hired or promoted by respondent must be of a reasonable period of time but are not limited solely to the time complainant was not hired. Rather, the period of time may precede and/or follow the date when complainant was not hired. Complainant's motion to compel discovery of the names of persons hired or promoted in the College of Business for a ten year period was granted. Ready v. UW (La Crosse), 95-0123-PC-ER, 7/1/98
Where it appeared reasonable to presume that respondent's personnel office would have access to hiring and promotion information without much difficulty and where respondent presented insufficient information about its record-keeping system to conclude that answering complainant's interrogatory would create an undue burden, complainant's motion to compel discovery of the names of persons hired or promoted in the College of Business for a ten year period was granted. Ready v. UW (La Crosse), 95-0123-PC-ER, 7/1/98
The responding party is not required to gather and create a document of the requested information at the responding party's own expense. Rather, the responding party has an obligation to produce what exists and if a requested compilation does not exist, the responding party must make available to the requesting party the documents from which the requested compilation can be derived. Ready v. UW (La Crosse), 95-0123-PC-ER, 7/1/98
Complainant, in a case arising from a decision not to select her for a faculty position in the College of Business, was entitled to information in the personnel files of persons hired into faculty positions where that information preceded or was associated with each of the individual hires. However, complainant was not entitled to information in the personnel files which post-dated each individual hire, as those post-dated documents could not have played any part in the hiring or promotional decision made. Ready v. UW (La Crosse), 95-0123-PC-ER, 7/1/98
Sanctions under §804.12(2), Stats., were premature where the Commission granted, in part, complainant's motion to compel, and there had been no opportunity to fail to comply with that ruling. In addition, the Commission lacks authority to order a state agency to pay costs and attorney fees for discovery motions filed by a complainant in a proceeding under the Wisconsin Fair Employment Act, citing Dept. of Transportation v. Wis. Pers. Comm., 176 Wis. 2d 731, 500 N.W.2d 545 (1993). Ready v. UW (La Crosse), 95-0123-PC-ER, 7/1/98
It is not possible, within the context of discovery, to order the production of something that does not exist. Complainant's motion for discovery sanctions was denied. Nelson v. UW-Madison, 97-0020-PC-ER, 5/20/98
A mental status report regarding complainant, prepared about seven months after the termination decision that was the subject of the disability and age discrimination complaint, had enough inherent indicia of relevance to the complaint that it appeared reasonably calculated to lead to the discovery of admissible evidence. Huempfner v. DOC, 97-0106-PC-ER, 5/6/98
A mental status exam, conducted 7 months after complainant filed his complaint of age and disability discrimination, requested by respondent because it needed an independent medical opinion regarding complainant's fitness for duty and prepared in order to evaluate the possibility of complainant returning to work in connection with a contractual grievance, fell within the scope of §804.10 where complainant complied with respondent's request and submitted to an examination. The exam was conducted by agreement of the parties. Respondent was required to provide complainant with a copy of the report and respondent's motion for a protective order was denied. Huempfner v. DOC, 97-0106-PC-ER, 5/6/98
A party obtaining a report under §804.10 is to provide the report to the adverse party. Section 804.10(3)(a) applies to non-personal injury actions. Huempfner v. DOC, 97-0106-PC-ER, 5/6/98
Investigative materials prepared by a personnel manager for respondent, acting as a representative of the respondent's attorney, are subject to protection from discovery under the attorney work product doctrine. The protection extended to statements the personnel manager took from party witnesses as well as the portions of her report that discussed or summarized information obtained from party witnesses. However, the protection did not extend to copies of statements obtained from non-party witnesses or to other portions of her report. Winter v. DOC, 97-0149-PC-ER, 3/11/98
Respondent was required to provide complainant with a non-redacted version of notes taken by the appointing authority when conducting reference checks regarding complainant. Respondent had redacted the names of the individuals who provided the information to the appointing authority. According to respondent, the appointing authority had informed the references he was speaking with them confidentially. Complainant indicated she intended to depose the individuals providing the references to discover what information they provided that was not reflected in the appointing authority's notes. Complainant's motion to compel was granted. Kalashian v. Office of the Jefferson County District Attorney, 97-0157-PC-ER, 2/25/98
The nature of the defense offered by respondent does not define the permissible scope of complainant's discovery inquiry. Kalashian v. Office of the Jefferson County District Attorney, 97-0157-PC-ER, 2/25/98
Where the document in question had been provided to complainant without having been identified as confidential, but with the implication it was not considered confidential and was not given to complainant in connection with a protective order issued on another date, respondent's motion for the imposition of sanctions for violating the protective order was denied. Cygan v. DOC, 96-0167-PC-ER, 1/28/98
In an age discrimination claim arising from a decision to reject complainant as a candidate for a tenure-track position, complainant was not entitled to discover the field of interest of current faculty or information about current faculty publication dates. Respondent had established the field of interest for the vacancy in question prior to the solicitation of candidates and scholarly activity was a hiring criterion but was defined to include more than recent publications. How-ever, complainant was allowed to discover the date of Ph.D. and the date of hire for current faculty as well as the resumes of all finalists and semi-finalists for the vacancy. Huff v. UW (La Crosse), 95-0113-PC-ER, 12/17/97
Where respondent appointed a former law school professor as "an investigator" to "conduct an impartial investigation" of complainant’s allegations against a faculty member and then "report to the Chancellor, giving her findings," the professor’s notes and documentation of the investigation did not constitute confidential attorney-client communication or attorney work product. The professor was acting as an impartial investigator rather than as a lawyer/advocate. The attorney-client privilege did not apply because the professor was not acting as respondent’s lawyer or advocate and respondent was not acting as a client of the professor. In addition, only those materials, information, mental impressions, or strategies collected or adopted by a lawyer after retainer in preparation of litigation come within the ambit of the work product exception. Nelson v. UW-Madison, 97-0020-PC-ER, 11/20/97
In a claim arising from respondent’s decision to abandon an initial hiring procedure and its later decision not to interview complainant as part of a second hiring process for the same position, complainant was entitled to obtain discovery of the criteria used to evaluate candidates in the first hiring procedure before that process was abandoned. Respondent claimed that the first hiring procedure was abandoned because respondent was dissatisfied with the applicant pool. Complainant’s motion to compel discovery was granted even though the 300 day statute of limitations barred complainant from presenting the issue of whether respondent’s decision to abandon the first hiring procedure was discriminatory. Information relating to the first procedure could be relevant and admissible to the timely-filed claim of whether discrimination occurred with respect to the decisions made in the second hiring procedure. Vest v. UW (Green Bay), 97-0042-PC-ER, 9/10/97
In a claim arising from respondent’s decision to abandon an initial hiring procedure and its later decision not to interview complainant as part of a second hiring process for the same position, respondent was required to provide complainant with a copy of transcripts and resumes, in its possession, for the seven individuals who were members of either the initial or final screening committee. However, respondent was not required to obtain such records if it did not possess them. Vest v. UW (Green Bay), 97-0042-PC-ER, 9/10/97
No party is under an obligation to create records for no charge in order to respond to a discovery request. No party is under an obligation to obtain records from other entities in order to respond to a discovery request. However, parties must at least check for existing records before claiming that an undue burden exists. Vest v. UW (Green Bay), 97-0042-PC-ER, 9/10/97
Complainant was not entitled to obtain discovery designed to investigate possible involvement by a third party in the conduct that was the subject of the complaint of employment discrimination where the Personnel Commission lacked jurisdiction to add that entity as a party. Vest v. UW (Green Bay), 97-0042-PC-ER, 9/10/97
Where respondent provided no justification for its request that certain materials relating to reference checks be reviewed in respondent’s offices in Madison, and complainant lived 150 miles away, the request was denied. Duncan v. DOC, 96-0064-PC-ER, 7/31/97
Section 230.13(1)(a), Stats., protects disclosure of certain information "to the public." However, the provision does not bar discovery of information in the context of litigation where the request was for reference information regarding all candidates and all successful candidates and the information had potential relevance to the discrimination complaint. Complainant’s use of the information was subject to the terms of a protective order previously issued by the Commission. Duncan v. DOC, 96-0064-PC-ER, 7/31/97
Section 230.13, Stats., does not operate to bar discovery of materials which are otherwise subject to discovery and are relevant to the case. The statute protects certain information from being disclosed "to the public." However, complainant’s discovery requests were made in the context of litigation rather than as a member of the public. Respondent’s request for a protective order covering complainant’s use of the requested material was granted. Complainant was entitled to obtain application materials, candidates’ resumes and letters, the scores given to them and the names and races of the candidates. Balele v. DER et al., 97-0012-PC-ER, 7/23/97
Respondent agency was entitled to payment for copy charges associated with discovery requests. Balele v. DER et al., 97-0012-PC-ER, 7/23/97
A respondent agency is not required to gather and create a document of the requested information at its own expense. Balele v. DER et al., 97-0012-PC-ER, 7/23/97
The Commission’s responsibility, in terms of its authority to issue a protective order, is not only to protect the parties, but also to protect other persons involved. Therefore, proposed language for a protective order was modified by the Commission to prohibit disclosure of an individual’s work history to the public in order to avoid the potential of releasing information which could lead to the discovery of a candidate’s identity. Wilson v. DHSS, 95-0043-PC-ER, 5/28/96
An "undue expense" and "undue burden" would occur if the Commission did not protect from disclosure the interview questions asked or the benchmarks used to evaluate the candidates’ responses, because the employer would be forced to create new questions and benchmarks to ensure the integrity of a subsequent hiring process. Wilson v. DHSS, 95-0043-PC-ER, 5/28/96
Respondent's motion for an order compelling discovery under §804.12(1), Stats., was granted where respondent had explained its need for the requested materials and complainant had failed to meet the original time requirements as well as two subsequent extensions to which complainant had agreed. Elvord v. DOT, 95-0126-PC-ER, 4/9/96 (ruling by examiner)
In a complaint of race discrimination and retaliation based on whistleblower activities relating, in part, to respondent's conduct of assigning complainant to a particular workstation where complainant requested she not be required to move to the workstation and she based her request on her statement, along with medical documentation, that such a move would make her ill, respondent was entitled to discover, from complainant, a description of the symptoms of her mental condition, the duration of the condition and how it changed during its duration. Where, in response to an interrogatory asking her to describe, identify and specify every on-the-job injury she had suffered during her employment with respondent, complainant had merely stated she "could not function because of personnel problems in cashier unit" of respondent, complainant was required to specify the nature of the injury she suffered, to provide a description of the manifestations of the injury and to specify how the injury was suffered. Respondent's request for an award of expenses, including attorney's fees and costs, pursuant to §804.12(1)(c), Stats., was denied, where the respondent's motion to compel was only granted in part, the interrogatories were, in some instances, overly broad and complainant was unrepresented by counsel. King v. DOC, 94-0057-PC-ER, 3/22/96
Respondent's motion to compel was granted where complainant's response to interrogatories was notarized but did not meet the requirement that it be "under oath" within the meaning of §804.08(1)(b), Stats. The defect was not cured by complainant's subsequent swearing before the notary as to the accuracy of the statements in his response to interrogatories. Complainant was required to resubmit his interrogatory responses to include a notary seal and notary language consistent with notary verification upon oath or affirmation. Respondent's request for an order for reimbursement of fees and costs associated with its motion to compel was denied where complainant expressed having made a good faith effort to reply to the interrogatories and the motion relied upon recently issued case law. La Rose v. UW-Milwaukee, 94-0125-PC-ER, 3/22/96
A complainant who has alleged discrimination as to the decision to terminate her employment as a correctional officer and has alleged harassment based on various remarks attributed to her supervisor, is entitled to information relating to other charges of discrimination/harassment which may have been lodged against the supervisor, whether or not the supervisor had a substantive role in the decision to terminate complainant's employment. Jaques v. DOC, 94-0124-PC-ER, 3/31/95
A complainant who requested information relating to complaints regarding "gender discrimination or harassment" by supervisory officers, without limitation, at a correctional institution, was required to limit the request in terms of time and also to those supervisory personnel who were involved in the decision and other conduct that was the subject of the complainant's charge of discrimination. Jaques v. DOC, 94-0124-PC-ER, 3/31/95
Respondent was entitled to a protective order relative to complainant's discovery request relating to a 1988 personnel action, described by complainant as a "demotion" and by respondent as a "reassignment," where the complaint was untimely filed relative to that transaction. The protective order extended to information relating to complainant's contention that respondent subsequently recreated his former position and hired another person to fill it, where complainant did not contest respondent's contention that complainant did not compete for the vacancy when it was available. LaRose v. UW-Milwaukee, 94-0125-PC-ER, 3/31/95
In an action under the FMLA in which complainant asserted she was suffering from a serious medical condition which made requested leave medically necessary, complainant's medical records from her treating physician were discoverable, consistent with §§804.01(2)(a) and 905.04(4)(c), Stats., irrespective of whether the employer would have been entitled to request or obtain the information in reviewing a request leave under the FMLA. Sieger v. DHSS, 90-0085-PC-ER, 2/6/95
Respondent's request for a protective order was denied where the underlying complaint alleged discrimination based on race and arrest/conviction record regarding the failure to hire and respondent sought protection of information relating to five candidates who were not selected because they had not provided correct information concerning their criminal record as well as information concerning Affirmative Action Planning and Reporting forms for each of the Black candidates selected, the identifying information could be redacted from the materials related to the five unsuccessful candidates and where the Planning and Reporting forms simply verified information already contained in another document already supplied to the complainant. Hamilton v. DOC, 93-0216-PC-ER, 12/22/94
Where, in his response to the answer to his complaint, complainant recited certain alleged statements suggesting discriminatory intent by management, but subsequently refused the Commission's requests to provide specifics relating to the statements, the Commission made an inference, for purposes of the investigation only, that such alleged statement were never made. Wentz v. DOT, 94-0056-PC-ER, 10/24/94
Even though a request from the Commission to the complainant did not provide notice that his failure to respond could result in the imposition of sanctions identified in §PC 2.05(4)(b), (c), and (d), where respondent's subsequently moved for such sanctions, the Commission then provided complainant a copy of the applicable rules, including al of §PC 2.05, and the complainant reiterated his decision not to provide the requested information, the complainant's refusal was a "failure to answer or produce requested information" within the meaning of §PC 2.05(4)(b). Wentz v. DOT, 94-0056-PC-ER, 10/24/94
Appellant, who was proceeding pro se, unjustifiably refused to comply with an order compelling discovery. The Commission concluded that "other circumstances" within the meaning of §804.12(2)(b), Stats., made an award of attorney's fees to respondent unjust, since the Commission already had dismissed her handicap claims and barred her from supporting two disciplinary appeals with evidence relating to her medical condition. Mosley v. DILHR, 93-0035-PC, etc., 6/21/94
Because petitioner alleged handicap discrimination, there was no privilege attached to her relevant medical records, and they were subject to discovery by the employer. Mosley v. DILHR, 93-0035-PC, etc., 1/25/94
Petitioner's refusal to comply with an order compelling discovery did not result in dismissal of all her cases, inasmuch as she is proceeding pro se and her refusal to permit discovery of her medical records did not relate to all her claims. However, her claims of handicap discrimination were dismissed, and she was prohibited from using any evidence concerning her medical condition in connection with her disciplinary action appeals. Mosley v. DILHR, 93-0035-PC, etc., 4/19/94
Respondent DMRS's request to hold discovery in abeyance (essentially to extend the time for responding to interrogatories) pending establishment of the issue for hearing was granted based on the following circumstances: DMRS's representations that it was unable to determine the issue from the pleadings, and that, once the issue was established, it might seek dismissal of the action based on jurisdictional grounds or based on res judicata or collateral estoppel; and the Commission's conclusion that it would be unnecessarily burdensome to require DMRS to respond to discovery requests prior to determining that dismissal of the action on one of these bases may be appropriate. However, DMRS failed to establish a basis for delaying the requested discovery until a hearing date was set. Balele v. DILHR et al., 94-0020-PC-ER, 6/2/94
A single unjustified failure by complainant to appear for a properly noticed deposition did not justify sanction of dismissal but did justify the award of reasonable expenses to respondent. Dorf v. DOC, 93-0121-PC-ER, 5/27/94
Discovery sanctions were imposed where complainant's answers to respondent's interrogatories were tardy, incomplete and evasive, and the continued tardiness had the effect of avoiding a Commission order to reply. Soliman v. DATCP, 93-0049-PC-ER, 94-0018-PC-ER, 3/2/94 (ruling by examiner)
Complainant's attempts to avoid sanctions were rejected where respondent's questions were relevant to its potential defense and complainant's claim that the interrogatories, consisting of over 100 questions, were overly burdensome should have been raised by a request for a protective order rather than for the first time as a defense to respondent's motion to compel. Soliman v. DATCP, 93-0049-PC-ER, 94-0018-PC-ER, 3/2/94 (ruling by examiner)
Where the complaint arose from a decision not to hire the complainant, the examiner denied respondent's dismissal request but granted its request that complainant be prohibited from presenting any evidence, other than her own testimony, relating to the subject matter of those interrogatories where the responses were incomplete or evasive. Soliman v. DATCP, 93-0049-PC-ER, 94-0018-PC-ER, 3/2/94 (ruling by examiner)
Although complainant did not violate the language of the protective orders previously agreed to by the parties, the information she conveyed to others derived from respondent's documents probably should have been prohibited and the respondent was provided an opportunity to propose a revision in the language of the existing protective orders. Volovsek v. DATCP & DER, 93-0098-PC-ER, 3/1/94 (ruling by examiner)
The party alleging violation of previous protective orders has the burden of establishing the existence of such violations. Volovsek v. DATCP & DER, 93-0098-PC-ER, 3/1/94 (ruling by examiner)
Respondent's request that complainant's accessibility to certain documents, including test questions, rating criteria and worksheets of interviewers, and applicant resumes, be limited to the offices of the Commission and that complainant not copy these documents was denied where complainant would have greater flexibility if the documents were supplied to her attorney's office rather than in the Commission's office, complainant needed copies of interviewers' worksheets to analyze their ratings, and complainant was represented by counsel which served as a protection to confidentiality. Volovsek v. DATCP & DER, 93-0098-PC-ER, 12/28/93
Complainant's failure to file a response to a request for admissions and production of documents in violation of the Commission's order resulted in statements in the request being deemed admitted. The cases were dismissed pursuant to the admission that complainant had agreed to settle the claims. Garner v. SPD, 88-0015-PC, 88-0183-PC-ER, 8/11/93
Complainant was precluded from offering any evidence related to the subject matter of respondent's underlying discovery request where complainant failed to provide discovery until 10 months after the issuance of an order to compel, there was no showing that the underlying information was unavailable or that the delay was unintentional, and the delay reflected gross negligence and callous disregard for the discovery process and the Commission's order. Germain v. DHSS, 91-0083-PC-ER, 7/30/93
Where complainants simply failed to respond to a request for inspection within 30 days, the Commission has the discretion to award expenses arising from that failure once a motion has been filed under §804.12(4), Stats. Expenses were justified where complainants engaged in other conduct, including a delay in providing certain other documents and various other delays. Harden et al. v. DRL & DER, 90-0092-PC-ER, etc., 4/23/93
Respondent's request, as a sanction for the failure to respond to a discovery request, for expenses representing 13 hours of time was reasonable where the procedural steps included two motions, two briefs, a conference attended by the parties and a hearing on the motion. Harden et al. v. DRL & DER, 90-0092-PC-ER, etc., 5/20/93
Complainant's request for an extension of the discovery deadline was denied where the conference report clearly set forth the discovery schedule and complainant was aware of the deadline date, having filed his first discovery request on that designated date. Complainant's pro se status was insufficient in itself to justify an extension. Stark v. DILHR, 90-0143-PC-ER, 5/7/93 (ruling by examiner)
Respondent was entitled to an order compelling discovery where complainants failed to respond to the original request for production of documents and then, when they did respond, failed to produce certain documents that were referenced in their response despite a follow-up request from respondent's counsel. Harden et al. v. DRL & DER, 90-0092-PC-ER, etc., 12/17/92
In a race discrimination case involving complainant's termination from the State Patrol Academy, deposition questions about his earlier termination from the Milwaukee Police Department were within the boundaries of relevance for discovery purposes. Owens v. DOT, 91-0163-PC-ER, 9/18/92
Discovery is available to a party to a Fair Employment Act claim during the investigative stage of the proceeding. Germain v. DHSS, 91-0083-PC-ER, 5/14/92
Where respondent's deposition of a witness denominated by complainant as an "expert" did not occur "upon motion" and by "order" as provided in §804.01(2)(d), the respondent was not obligated to pay expert fees to the witness for the time spent in deposition. Keul v. DHSS, 87-0052-PC-ER, 5/14/92
Complainants were entitled to discovery of the investigative report prepared by respondent's affirmative action officer in response to complainant's charge of discrimination and retaliation. Galbraith et al. v. DOT, 91-0067-PC-ER, etc., 12/23/91
The attorney-client privilege could not rightfully be claimed for all communications that occurred at meetings where a personnel problem was discussed and advice was sought from a number of persons, one of whom was a lawyer and where it could not be said that the primary purpose of the communications made by those present at the meeting besides counsel was to facilitate the obtaining of legal advice. Respondent was ordered to provide information on the meetings pursuant to discovery requests except that the respondent was not required to provide information regarding the content of any legal advice rendered by counsel at the meetings. Iwanski v. DHSS, 89-0074-PC-ER, etc., 8/21/91
Because there is nothing in either ch. 804, Stats., or the Commission rules that requires a complainant to be in pay status or otherwise be compensated while being deposed, a complainant cannot insist on being in pay status as a precondition to being deposed. Holubowicz v. DOC, 90-0048, 0079-PC-ER, 8/22/90
Respondent's motion to compel was granted where, in response to a series of interrogatories seeking specific information from petitioner as to the basis for her allegations of discrimination and retaliation, the petitioner stated that the information was "contained within the documents already in the Department's possession." The petitioner was not entitled to invoke §804.08(3), Stats, which allows the party on whom an interrogatory is served to specify the records from which the answer may be derived. The petitioner also was not entitled to avoid responding by claiming attorney work product. Iwanski v, DHSS, 89-0074-PC-ER, etc., 3/21/90
Where respondent had unsuccessfully attempted to arrange for DMRS to provide copies of certain examination documents (the examination plan, the written exam and benchmark and the oral exam and benchmarks) as the answer to complainant's interrogatory and later amended its answer to provide only some of that information, the complainant was entitled to an order compelling discovery because the respondent had not completely answered the interrogatory. Beaverson v. DOT, 88-0109-PC-ER, 2/22/90
In a complaint of age discrimination arising from the decision not to select the complainant for a vacant position, the complainant was entitled to discovery of the results of other hiring transactions where the same decision makers were involved. That discovery was not limited to appointments made at the same or higher salary ranges but respondent was not required to give detailed information about the transaction until there was at least a preliminary indication that the particular transactions had some meaning in the context of the statistical or similar transactions evidence that conceivably would support complainant's case. Respondent's motion for protective order was granted to prevent the discovery of the hiring patterns of other supervisors in the agency. Beaverson v. DOT, 88-0109-PC-ER, 2/22/90
In a complaint arising from respondent's decision to discharge the complainant, the complainant was entitled to review the personnel files of co-workers and supervisors because the files could contain information relating to the comparative work performances of the co-workers and information relating to the supervisors' attitudes and performance relating to affirmative action. The files were not privileged. Awe v. DATCP, 89-0040-PC-ER, 2/9/90
In a complaint arising from respondent's decision to discharge the complainant, complainant was not entitled to obtain information regarding vacancies for which he was considered but not hired, where those decisions preceded his selection for the position from which he was later discharged. Awe v. DATCP, 89-0040-PC-ER, 2/9/90
Where complainant alleged he was not hired despite ranking second on the civil service exam and that his nonselection was part of a pattern extending to at least two prior rejections, complainant was granted discovery of criteria utilized for both the exam and the post-certification decision, information concerning the officials or agencies responsible for the examination process, and information regarding those persons who were certified after taking any of the last three examinations for the particular classification. Discovery was denied as to information regarding those persons who were not certified. Beaverson v. DOT, 88-0109-PC-ER, 6/29/89
Nothing prevents a party from first obtaining information via a deposition or interrogatories and then seeking an admission covering the same information. The purpose of requests for admission is to narrow the issues for trial. Therefore, the fact that the requesting party is already in possession of certain of the items he is requesting the respondent to admit to is not determinative. Wing v. UW-Stout, 85-0104-PC-ER, 1/9/89
The Commission rejected the respondent's contention that requests for admissions were inappropriate because they amounted to complainant's arguments as to what inferences should be drawn from various pieces of documentary evidence. The Commission went on to individually address the appropriateness of numerous requests. Wing v. UW-Stout, 85-0104-PC-ER, 1/9/89
Where complainant appeared pro se, his motion to compel was not simply denied in toto because of its vagueness. Rather, in an effort to eliminate unnecessary delays, the examiner went on to rule on the motion after having assumed the complainant had redrafted his requests with greater specificity. Asadi v. UW-Platteville, 85-0058-PC-ER, 11/13/87
Discovery was limited to a period not extending beyond 5 years prior to the date the claim was filed. Complainant is entitled to discovery for the period subsequent to his filing, as well. Asadi v. UW-Platteville, 85-0058-PC-ER, 11/13/87
Where the complaint arose from respondent's decision not to renew his tenure track employment at the Department of Industrial Engineering in the College of Engineering, UW-Platteville, complainant was entitled to discovery of faculty evaluations and contracts for all of the UW-Platteville rather than only the College of Engineering. Restrictions were imposed in an effort to protect the information from unnecessary disbursement. Asadi v. UW-Platteville, 85-0058-PC-ER, 11/13/87
Complainant was granted discovery of claims or cases of discrimination based on national origin that had been filed by faculty members against persons at UW-Platteville subsequent to a date 5 years prior to the date complainant filed his own claim of discrimination based on national origin. Discovery was not granted as to the broader category of all lawsuits and charges of discrimination against the UW System. Asadi v. UW-Platteville, 85-0058-PC-ER, 11/13/87
The Commission discovery rule, §PC2.02, Wis. Adm. Code (1980) applies to any contested case filed with the Commission under §230.45, Stats., including complaints of discrimination. Friedman v. UW, 84-0033-PC-ER, 8/l/84
A discovery request designed to elicit information to determine whether the complaint was timely filed relates to a "defense of the party seeking discovery" as provided in §804.01(2)(a), Stats., and is appropriate. Friedman v. UW, 84-0033-PC-ER, 8/1/84
While this digest has been prepared by Personnel Commission staff for the convenience of interested persons, it should be remembered that the decisions themselves are the ultimate source of Commission precedent.