ROBERT L PERKINS, Complainant
BOS MRS ENTERPRISES INC, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed November 26, 2008
perkiro . rsd : 125 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
On August 28, 2006, the Equal Rights Division certified Robert Perkins' complaint alleging that the respondent discriminated against him because he filed a Labor Standards complaint against the respondent with the Equal Rights Division (ERD Case No. CR200504499) to a probable cause hearing. A second complaint Perkins filed with the ERD alleging that the respondent had discharged him because he filed a second Labor Standards complaint with the Division (ERD Case No. CR200504650) was certified to a hearing on the merits on September 5, 2006. The two cases were subsequently combined and scheduled for hearing on March 2, 2007.
After the cases were certified to hearing the parties conducted discovery, which began with Perkins' December 4, 2006, Request for Production of Documents in ERD Case No. CR200504650, and later on December 18, 2006, a First Set of Interrogatories for both cases and a Request for Production of Documents in ERD Case No. CR200504499. By letter dated December 12, 2006, Attorney Jeffrey Jones for the respondent advised the ERD of the respondent's intent to direct discovery to Perkins, who was not represented by legal counsel.
On January 9, 2007, the respondent mailed to Perkins a response to Perkins' December 4, 2006, Request for Production of documents. On January 23, 2007, the respondent mailed to Perkins responses to his December 18, 2006 discovery requests.
On February 2, 2007, the respondent's counsel mailed the respondent's First Set of Interrogatories, Requests to Admit, Request for Production of Documents and a Notice of Deposition Duces Tecum to Perkins. February 13, 2007, was the date noticed for taking Perkins' deposition. The respondent requested that Perkins bring with him to the deposition: 1) a copy of his federal and state tax filings for 2005 and 2006; 2) a copy of each and every document that supported his contention the respondent retaliated against him for filing a Labor Standards complaint; and 3) a copy of each and every document that relates to, supports, or tends to support the allegations contained in his complaints and all exhibits he would utilize at the March 2, 2007 hearing that he was not providing in response to the first two requested documents.
By letter to the ALJ dated February 6, 2007, Perkins enclosed a Motion for Order to Compel Answer and a Motion for Protective Order with respect to his two cases. In the Motion for Order to Compel, Perkins asserted that the respondent failed to provide an answer to one interrogatory and had provided evasive answers to several others. In his Motion for Protective Order, Perkins stated that Wis. Stat. § 804.05(2)(d) provides that if a notice to a party deponent is accompanied by a request to produce documents, the procedures of § 804.09 shall apply to the request. Perkins stated that § 804.09 allows a party 30 days to respond to a request for production of documents, unless a shorter or longer time is allowed by the court, that the respondent was attempting to usurp the department's authority by only allowing him 10 days to produce the requested documents, and that it would be burdensome upon him and inequitable to require him to respond to the respondent's request for production of documents in 10 days when the respondent was allowed and took 34 days to respond to his request. In the letter itself, Perkins commented that the respondent chose to send to him copies of the documents that he had requested respondent to produce, instead of producing the documents for inspection and copying by him, and that the respondent did not provide any certification that the copies were true and accurate reproductions of the originals.
Counsel for the respondent responded to Perkins' motions by letter to the ALJ dated February 9, 2007. With respect to Perkins' assertion that he was allowed 30 days to respond to the request for production of documents that accompanied the deposition notice, counsel stated that the allowance for 30 days to produce documents in § 804.09 pertained to providing a written response to a production of document request; that the respondent is deposing Perkins and has requested that he produce certain documents at the deposition. Further, counsel stated that with respect to Perkins' Motions to Compel and for a Protective Order Perkins had not complied with § DWD 218.14(4), which requires that all motions to compel discovery or motions for protective orders shall be accompanied by a statement in writing by the party making the motion that, after consultation in person or telephone with the opposing party and sincere attempts to resolve their differences, the parties are unable to reach agreement. Counsel stated that Perkins had never contacted him or filed the required statement.
With respect to producing the documents for Perkins to inspect, the respondent replied that the purpose of the inspection provision is to save the party requesting the documents the cost of reproduction of documents which the party does not want, and that in any event, the respondent has the originals and Perkins could review the originals when he appeared for his deposition on February 13, 2007. The respondent also stated that it was unaware of any requirement that documents provided in response to a request for production of documents must be certified.
On February 9, 2007, the respondent mailed an Amended Notice of Deposition Duces Tecum to Perkins, which requested him to bring to the deposition all documents that would be responsive to the respondent's First Set of Interrogatories, Requests to Admit and Request for Production of Documents.
By letter to Perkins dated February 12, 2007 (with a copy to the ALJ), counsel for respondent confirmed a telephone conversation that he had with Perkins that day. After noting that Perkins had called about a number of matters pertaining to the respondent's discovery requests and stating that he would have difficulty providing the requested documents at the February 13, 2007 scheduled deposition, counsel's letter reads as follows:
We mutually agreed to reschedule your deposition for Wednesday, February 21, 2007, at 10:00 a.m. You stated that you wished to appear by telephone rather than travel to Wausau, Wisconsin. I agreed that your deposition could be taken by telephone. You stated you would provide me with the documents which the respondent has requested through its discovery process prior to your deposition. You stated that you would have the documents to me by Monday, February 19, 2007, or Tuesday, February 20, 2007, at the latest.
Our above agreements should address your Motion for Protective Order. We understand that you are filing another Motion to Compel (although we are not sure of the basis for that Motion).
By letter to the ALJ dated February 12, 2007, Perkins enclosed a Renewed Motion for Order to Compel Answer and an Amended Motion for Protective Order. Perkins moved for a Protective Order asserting as reasons that: 1) Service of the respondent's Notice of Deposition Duces Tecum and Amended Notice of Deposition Duces Tecum were not in compliance with Wis. Stat. § 885.03; and 2) the notices did not comply with Wis. Stat. § § 804.05(2)(d) & (3)(a). Perkins included a "Statement of Consultation" with his Amended Motion for Protective Order, which reads as follows: "After consultation with respondent and sincere attempts to resolve the differences over procedure applicable to depositions duces tecum, Complainant and Respondent are unable to reach agreement. The consultation was by telephone on February 12, 2007, and Mr. Robert L. Perkins and Att'y Jeffrey T. Jones were the parties participating in the consultation."1(1) (Bold text in original.)
By letter to the ALJ dated February 20, 2007, counsel informed the ALJ that the respondent had answered Perkins' interrogatories.
Perkins did not provide the documents he agreed to provide to counsel by February 20, 2007, and did not appear (by phone) for his rescheduled February 21, 2007 deposition.
By letter to the ALJ dated February 21, 2007, counsel again explained that the deposition originally scheduled for February 13, 2007, was rescheduled for February 21, 2007, and the agreement that had been reached by the parties. Counsel stated that Perkins never contacted him to state that counsel's February 12 letter confirming their agreement was wrong and that counsel never received the documents Perkins said he would produce by February 19 or 20, but that counsel had received Perkins' Exhibit List on February 21. Further, counsel stated that Perkins had never contacted him to ask that his deposition be rescheduled, and counsel informed the ALJ that on February 21, 2007, he had called Perkins before and after the scheduled 10:00 a.m. deposition but was unable to reach him and left messages for Perkins but received no reply.
On February 21, 2007, counsel mailed a second Amended Notice of Deposition Duces Tecum to Perkins to be held on February 27, 2007, in Wausau, Wisconsin.
Perkins did not appear for the scheduled February 27 deposition. Counsel stated while on the record at this scheduled deposition that he had called Perkins at his home several times on February 26 but was unable to reach him and that he had called Perkins at his home on February 27, but got his answering machine so he left a message.
Up to this point, the ALJ had not responded to Perkins' motions or to any of the other correspondence the parties had sent to him.
Counsel for respondent contacted the ALJ to inform him that Perkins had failed to appear for a second deposition and apparently requested that the hearing scheduled for March 2, 2007 be postponed in order to file a motion to dismiss. Apparently, the ALJ then contacted Perkins, was told by Perkins that he had a legitimate reason for failing to appear at the deposition, and therefore postponed the hearing.
By letter dated March 7, 2007, the respondent submitted a Motion for Sanctions and Dismissal of the case on the grounds that Perkins had failed to appear for scheduled depositions on two occasions and failed to respond to prior discovery requests as mutually agreed by the parties. The respondent's motion was accompanied by counsel's affidavit and several exhibits.
By letter dated March 13, 2007, Perkins submitted a response to the respondent's motion objecting to the Motion for Sanctions and Dismissal. In his response, Perkins indicated that on February 12, 2007, he contacted the respondent's counsel to comply with the consultation requirement of § DWD 218.14(4) and that he and counsel were not able to reach agreement on the respondent's failure to answer his interrogatories and the procedure applicable to Depositions Duces Tecum, so he filed a Renewed Motion to Compel an Answer and an Amended Motion for Protective Order that same day. Perkins asserted that the respondent's Notice of Deposition Duces Tecum and Amended Notice of Deposition Duces Tecum were defective in that "service was not proper and they did not comply with the applicable procedure" and therefore he was not required to attend the depositions nor liable for any costs or expenses incurred by the respondent. Perkins also indicated that because of his Motion for Protective Order, the respondent's Motion for Sanctions and Dismissal should be denied.
The ALJ issued his decision in the matter on March 20, 2008, which dismissed Perkins' complaints. The following excerpt from the ALJ's decision sums up the basis for his decision:
Sec. 885.03 stats. governs the service of subpoenas and is not applicable to the notice at issue here. Even if Perkins was correct in his interpretation of secs. 804.05(2)(d) the only effect would be to allow him to ignore the request to produce the requested documents at his deposition.
Perkins ignores the one issue that renders his arguments meritless. In the affidavit accompanying his motion for sanctions Attorney Jones avers that during his telephone conversation with Perkins on February 12, 2007 Perkins asked to postpone the deposition, that he be allowed to attend by telephone and that he would produce the requested documents prior to the deposition. In his response to the motion Perkins argues that the notice was defective; nowhere does he deny that he requested the deposition be rescheduled, that he asked to appear by telephone or that he said he would produce the requested documents. Perkins has demonstrated a familiarity with the legal process and a certain ability and comfort with legal argument and procedure. If Perkins did not say what Attorney Jones claims, it is not plausible that he would fail to challenge what could only be characterized as outright lies by Attorney Jones in his affidavit.
Based upon the foregoing and the record and file herein it is the undersigned's belief that Perkins is not making a good faith legal argument for his failure to appear at two scheduled depositions; rather, he is merely trying to frustrate the Respondent's attempt [to] take his deposition. It is, therefore, appropriate to dismiss Perkins' complaints.
The ALJ went on to note that the dismissal of Perkins' complaints is punishment enough for Perkins' conduct and that the imposition of a financial penalty would be unjust.
Wisconsin Statute § 804.12(4) provides, in relevant part, as follows:
If a party...fails (a) to appear before the officer who is to take the party's deposition, after being served with a proper notice...the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others, it may take any action authorized under sub. (2) (a) 1., 2. and 32(2)....The failure to act described in this subsection may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by s. 804.01(3).
On appeal, Perkins argues that the ALJ made no decision with respect to whether the respondent's Notice of Deposition Duces Tecum was served with proper notice, and, apparently that his failure to appear for his deposition may be excused because he had applied for a protective order as provided under s. 804.01(3).
Perkins' argument about whether the respondent's Notice of Deposition Duces Tecum was served with proper notice is without merit. First of all, a subpoena is not necessary to compel a party's attendance for a deposition. Wis. Stat. § 804.05(1). Further, Chapter 804 of the Wisconsin Statutes does not specifically define the manner in which notice must be given to take the deposition of a party. However, other chapters of the statutes, including Chapter 801, do define the procedures and practice with respect to Chapter 804. Specifically, Wis. Stat. § 801.14(2) provides, in relevant part, that "Whenever under these statutes, service of pleadings and other papers is required...Service upon...a party shall be made by delivering a copy or by mailing it to the last-known address...Service by mail is complete upon mailing." (Emphasis added.) The respondent mailed notice of its discovery requests to Perkins at his last known address.
Wis. Stat. § 804.01(3) provides that "Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense..." In his February 6, 2007 dated Motion for Protective Order, Perkins asserted that the respondent's Notice of Deposition Duces Tecum "would be burdensome upon him and inequitable to require him to respond to the respondent's request for production of documents in 10 days when the respondent was allowed and took 34 days to respond to his request." However, in a letter by counsel for the respondent dated February 12, 2007, confirming a telephone conversation on that date with Perkins, and a subsequent affidavit signed by counsel for respondent on March 7, 2007, counsel stated that Perkins asked to reschedule his February 13, 2007 deposition to February 21, 2007, that Perkins asked to be allowed to attend his deposition by telephone and that Perkins advised counsel that he would provide the documents requested in the respondent's February 2, 2007 discovery requests by no later than February 20, 2007. This, as noted by the ALJ, renders Perkins' argument meritless.
Perkins further states that the statutes allow a party up to 30 days to respond to discovery requests, unless the court allows a shorter or longer time, and that the respondent did not seek discovery until February 2, 2007, less than 30 days before the scheduled March 2, 2007 hearing. Perkins argues that the only purpose the respondent's Deposition Duces Tecum served was to shorten the amount of time that he was allowed to respond to the respondent's discovery requests without getting permission from the court. Again, however, Perkins' argument is rendered meritless since the record shows that on February 12, 2007, counsel for the respondent agreed to Perkins' request to reschedule his deposition to February 21, 2007, and that Perkins advised counsel that he would provide counsel with the documents which the respondent requested through its discovery process prior to the deposition by no later than February 20, 2007.
Next, Perkins accuses counsel for the respondent of "misrepresentation" and "false swearing". Perkins asserts that he did not call Attorney Jones on February 12, 2007 to ask that his deposition be rescheduled to February 21, 2007, that he did not ask to be allowed to attend his deposition by telephone, and that he did not advise Attorney Jones that he would send to Attorney Jones the documents requested in the respondent's February 2, 2007 discovery requests by no later than February 20, 2007. Perkins references an affidavit he signed that accompanied his March 13, 2007 correspondence sent to the ALJ objecting to the respondent's Motion for Sanctions and Dismissal as support for his assertions. Further, Perkins argues that although the ALJ finds that his "failure to specifically deny each element of Attorney Jones' affidavit makes Complainant's arguments meritless," he did not believe this was necessary in light of the Amended Motion for Protective Order he filed following the telephone conversation (with Attorney Jones) and his affidavit concerning the reason for his telephone call. Perkins' assertions regarding his Amended Motion for Protective Order were discussed above and rejected and need not be repeated here. Perkins' March 13, 2007 affidavit states in its entirety as follows:
I, Robert L. Perkins, an (sic) oath do depose and say: I telephoned Respondent's attorney, Jeffrey T. Jones, in the forenoon of February 12, 2007 to comply with the consultation requirement of Wis. Admin. Code § DWD 218.14(4) with respect to motions for an order to compel an answer and for a protective order, and I informed Att'y (sic) Jones that the aforesaid was the purpose of the call at the beginning of the conversation. (Underlining emphasis in original.)
Perkins' affidavit simply expresses what the intent of his call to Attorney Jones was and what he stated to Attorney Jones at the beginning of the conversation. Perkins' affidavit provides no support for his denial of having asked Attorney Jones to reschedule his deposition from February 13 to February 21, 2007, of asking to be allowed to attend the deposition by telephone and having advised Attorney Jones that he would send the documents requested in the respondent's February 2, 2007 discovery requests to Attorney Jones by no later than February 20, 2007.
Further, in support of his denial of what Attorney Jones asserts the parties agreed to during their February 12, 2007 telephone conversation, Perkins cites his "Statement of Consultation" attached to his February 12, 2007, Amended Motion for Protective Order. However, if there had been no agreement to reschedule the deposition from February 13 to February 21, 2007, and Perkins had not promised to provide Attorney Jones with the documents requested in the respondent's February 2, 2007 discovery requests by no later than February 20, 2007, it is incredible to believe that Attorney Jones would copy the ALJ on his February 12, 2007 letter sent to Perkins confirming the agreement to reschedule the deposition and Perkins' promise to provide the requested documents by February 20, 2007. Furthermore, Perkins' contention appears incredible because in addition to never objecting to the contents of Attorney Jones' February 12, 2007 letter of confirmation, Perkins' March 13, 2007 affidavit also fails to dispute what Attorney Jones asserts was agreed upon during their February 12, 2007 telephone conversation.
Perkins argues that the supreme court has stated that "because dismissal of a complaint terminates the litigation without regard to the merits of the claim, dismissal is an extremely drastic penalty that should be imposed only where such harsh measures are necessary", citing Trispel v. Haefer, 89 Wis. 2d 725, 732, 279 N.W.2d 242, 245 (1979); that the supreme court has held "that dismissal is appropriate only where the noncomplying party's conduct is egregious or in bad faith and without a clear justifiable excuse, citing Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 273, 470 N.W.2d 859, 865 (1991); and that in Hudson Diesel, Inc. v. Kendall, 194 Wis. 2d 531, 545 (Ct. App. 1995), the court of appeals, citing Johnson, concluded that "[W]hen the conduct that is the basis for dismissal is not intentional or in bad faith, the trial court must determine whether less severe sanctions are available to remedy the noncomplying party's discovery violation before dismissal may be ordered."
Although dismissal of a case may be harsh, dismissal of Perkins' complaints is warranted because the record indicates that his conduct was intentional, evinced bad faith and was without justifiable excuse. The record shows that despite obtaining the respondent's permission to reschedule his deposition from February 13, 2007, to February 21, 2007, and agreeing to provide respondent the documents requested in the respondent's February 2, 2007 discovery requests by no later than February 20, 2007, that Perkins did not provide those documents by February 20, did not appear for his rescheduled deposition and did not return messages Attorney Jones left asking him to return Attorney Jones' telephones calls regarding his failure to appear at the deposition and to provide the requested documents. Further, the record shows that on February 21, 2007, the respondent mailed an Amended Notice of Deposition Duces Tecum to Perkins, rescheduling the deposition for February 27, 2007, that on February 26, 2007, Attorney Jones attempted to contact Perkins by phone on seven occasions to ensure that he was appearing for the deposition on February 27 and providing the requested documents, but each time Perkins' phone was either busy or no one answered, that Perkins failed to appear for the February 27 deposition, that Perkins never contacted Attorney Jones to state that he had any conflicts with the February 21 or 27 deposition dates and that Perkins has never returned any of Attorney Jones' telephone calls.
Perkins further argues that a timely ruling on his Motion for Protective Order "would have precluded Complainant's noncompliance with Respondent's discovery request." This argument fails. Perkins' initial Motion for Protective Order is dated February 6, 2007. The credible evidence indicates that only six (6) days later on February 12, 2007, the parties had reached an agreement with Perkins promising to provide respondent with the documents requested in its discovery requests, thereby resolving the basis for Perkins' Motion for Protective Order.
cc: Attorney Jeffrey T. Jones
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(1)( Back ) Perkins also included a "Statement of Consultation" with his Renewed Motion for Order to Compel Answer. It reads, "After consultation with respondent and sincere attempts to resolve the differences over Respondent's failure to answer Complainant's Interrogatories, Complainant and Respondent are unable to reach agreement. The consultation was by telephone on February 12, 2007, and Mr. Robert L. Perkins and Att'y Jeffrey T. Jones were the parties participating in the consultation."
(2)( Back ) Subsections (2)(a) 1., 2. and 3. concerns the courts authority to make orders with respect to a party's (or other person designated to testify on behalf of a party) failure to comply with an order to provide or permit discovery. Under this subsection the court may make (1) An order that the matters regarding which the order was made or any other designated facts be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the disobedient party from introducing designated matters in evidence; and (3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.