ROYD JACKMAN, Complainant, and IOWA CIVIL
RIGHTS COMMISSION,
VS.
JENSEN CONSTRUCTION COMPANY, Respondent.
RULING ON EXCLUSION OF WITNESSES
Findings of Fact:
1A. During the course of the hearing, the attorney for Complainant Jackman
made a motion to exclude the testimony of three witnesses of the Respondent:
Mark Sears, Charles Stansbury, and Chuck O'Gorman. (Tr. at 263-65, 269,
299). The motion was based on Respondent's failure to supplement its answers
to interrogatories propounded by Complainant. (Tr. at 265, 269). The motion
was granted. (Tr. at 303). After the motion was granted, Respondent's attorney
was allowed to make an offer of proof by stating what the testimony of what
each witness would be. (Tr. at 308-20).
2A. The Notice of Hearing in this matter was issued on June 25, 1990.
Complainant filed its First Set of Interrogatories to Respondent with 'the
Administrative Law Judge and served them on Respondent's attorney on July
6, 1990. These interrogatories specifically reminded Respondent of its duty
to supplement answers concerning the identity and location of persons having
knowledge of discoverable matters.
3A. Respondent's Answers to Interrogatories Propounded by Complainant
(hereinafter "Respondents Answers to Interrogatories")
were served on Complainant Jackman's attorney by mail, on August 6, 1990,
and were filed with the Administrative Law Judge on August 7, 1990. Interrogatory
No. 14 and its answer were set forth as follows:
14. Please identity all persons not previously identified in your answers to the preceding interrogatories who have or may have knowledge regarding discoverable matters, including any experts; summarize the substance of his or her knowledge; and identify each document or oral communication which, directly or indirectly, mentions, relates or pertains to his or her knowledge.Prior to answering this interrogatory, please refer to Definitions 1, 2, 5, 6, 7, 8 and 10.
ANSWER:
None.
Respondent's Answers to Interrogatories.
4A. At no point in Respondent's Answers to Interrogatories are the names
of Sears, Stansbury, or O'Gorman mentioned. Nor are their names mentioned
in the list of witnesses stated by Respondent on their Prehearing Conference
Form which was filed with the Administrative Law Judge on September 7, 1990.
The Respondent emphasizes that it did state in its Prehearing Conference
Form that: "Respondent reserves the right to call other witnesses with
relevant knowledge regarding issues in this case." (Respondent's Brief
at 28).
5A. The complaint, which is attached to and incorporated by reference
in the Notice of Hearing, was originally served on Respondent in July of
1989. (Tr. at 285). The complaint makes repeated reference to unnamed "supervisors"
witnessing acts of racial harassment at the Traer worksite. (Complaint).
The record in this case reflects a total of three supervisors at that worksite,
including Mr. O'Gorman, and twelve to fifteen other employees. See Finding
of Fact No. 4. Respondent was aware as of July of 1989 and afterward that
Mr. Sears and Mr. Stansbury were employees of Respondent in Traer both at
the time of Complainant Jackman's employment and at the time of the service
of the complaint. (Tr. at 285, 288).
6A. The Commission first became aware that Mr. O'Gorman, Mr. Sears, and
Mr. Stansbury were employees of Respondent Jensen Construction Company through
a list of employees provided to the Commission during the course of the
investigation. (Tr. at 293-94). At sometime after the Notice of Hearing
was sent, the Complainant requested and received a copy of the Commission's
investigative file. (Commission's Prehearing Conference Form). At sometime
prior to August 24, 1990, Complainant provided Respondent with a copy of
the Commission's file, which included copies of investigator's handwritten
summaries of conversations with Mr. Sears and Mr. Stansbury. (Complainant's
Objections to Discovery Requests; Tr. at 268, 300, 302). As a matter of
law, this file was available to Respondent directly from the Commission
since June 25, 1990, the date Notice of Hearing was issued and the contested
case commenced. See Conclusion of Law No. 1 A.
7A. Despite the respondent's awareness of Mr. Stansbury's and Mr. Sears'
employment at the Traer site since June of 1989, and its possession of summaries
of their statements since sometime before August 24, 1990, Respondent made
no effort to contact them until the week before the hearing. (Tr. at 281,
286-87). See Findings of Fact Nos. 5A, 6A. That week, Tom Doyle, Director
of Personnel with the Rasmussen Group, of which Jensen Construction Company
is a subsidiary, did contact Mr. Stansbury and Mr. Sears and tape recorded
their statements. (Tr. at 281-82).
8A. On Thursday, September 20,1990, only two full business days(four
calendar days) before the hearing, a letter was delivered to the office
of Complainant's attorney, Mark Bennett, indicating that it was Respondent's
intention to call Mr. Stansbury and Mr. Sears as witnesses. Tape recordings
of their interviews accompanied the letter. (R. EX. # 7; Tr. at 264-65,
282). Mr. Bennett was out of town and had no notice of Respondent's intention
to call these witnesses until Friday, September 2lst. (Tr.at264).It should
be noted Respondent never notified Mr. Autry, the Commission's representative,
of the tape recording or of its intention to call these two witnesses. (Tr.
at 265).
9A. Despite the fact that it was aware that Mr. O'Gorman was one of three
supervisors at the Traer site, and that the complaint served in July of
1989 alleged that unspecified supervisors had witnessed racial harassment,
Respondent did not decide to contact Mr. O'Gorman until the latter part
of the week before the hearing. (Tr. at 288). See Finding of Fact No. 5A.
There is no evidence in the record of any attempt to contact Mr. O'Gorman
until Monday afternoon, September 24, 1990, the day before the hearing.
(Tr. at 280, 296). On the morning of September 26, 1990, the second day
of the hearing, Respondent first informed Mr. Bennett and Mr. Autry that
Mr. O'Gorman would be called as a witness that very day. (Tr. at 272).
10A. The Respondent's failure to contact Sears, Stansbury, or O'Gorman
until the eve of trial, and its failure to inform counsel for Complainant
or the Commission until the eve of trial or beyond is due solely to Respondent's
failure to adequately prepare for trial. The resulting late identification
of these witnesses to the Complainant's counsel did not give him anywhere
near sufficient time to prepare to meet the evidence to be offered through
these witnesses and to avoid surprise at the hearing. It is self-evident
that arranging for a deposition of these witnesses, providing reasonable
notice to the parties of the depositions, obtaining and serving any necessary
subpoenas, not to mention making any pre-deposition preparation which counsel
may want to undertake before he questions the deponents, would require considerably
more than zero to four days to accomplish. In addition, sometime would be
required to digest the information obtained through their depositions and
to marshall evidence to counter it. Complainant clearly and unjustifiably
would have been taken by surprise if these witnesses had been allowed to
testify.
Conclusions of Law:
1A. Discovery in this matter began on June 25,1990, the date the Notice
of Hearing was issued. 161 Iowa Admin. Code § 161-4.2(2). See lowa
code §§ 17A.13(l) and 17A.12. This is also the date the contested
case proceeding commenced. Iowa Code § 17A.13(l). Once the contested
case commences, "[i]dentifiable agency records that are relevant to
disputed material facts . . . shall, upon request, promptly be made available
to a party." Iowa Code § 17A.1 3(2). The Iowa Rules of Civil Procedure
governing discovery are applicable to contested case proceedings. Iowa Code
§ 17A.13(l).
2A. Iowa Rule of Civil Procedure 122 (d)(1)(A) provides:
d. Supplementation of responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement the response with respect to any question directly addressed to:
(A) The identity and location of persons having knowledge of discoverable matters.
Iowa R. Civ. P. 122(d)(1)(A).
3A. "Implicit in this rule are sanctions for noncompliance such
as exclusion of evidence, continuance, or other actions that a trial court
deems appropriate." Miller v. Bonar, 337 N.W.2d 523, 527 (Iowa 1983)(emphasis
added - referring to Rule 122's predecessor, then numbered as Rule 125)(citing
MZ Enterprises, Inc. v. Hawkeye Security Insurance Company, 318 N.W.2d 408,
414 (Iowa 1982). See also Sullivan v. Chicago & Northwestern
Transportation Co., 326 N.W.2d 320, 324 (Iowa 1982); White v. Citizen's
National Bank, 262 N.W.2d 812, 816 (Iowa 1978); Kilker v. Mulry, 437 N.W.2d
1, 4 (Iowa App. 1988).
4A. Rule 122(d)(1)(A) is designed to ensure the efficacy of discovery
"as a device for ascertaining the facts, or information as to the existence
or whereabouts of facts, relative to [the basic issues between the parties]."
Metropolitan Transfer v. Design Structures, 328 N.W.2d 532, 539 (Iowa Ct.
App. 1982). "The purpose of the rule is to avoid surprise and to permit
the issues to become both defined and refined before trial. This allows
litigants to prepare for the actual matters they will actually confront."
White v. Citizen's National Bank, 262 N.W.2d 812, 816 (Iowa 1978)(referring
to former rule 125).
5A. "The names of potential witnesses having knowledge of matters
alleged in the pleadings is among the most important information that can
be obtained by interrogatories. This information helps prevent surprise
at trial, a major goal of the discovery rules." Blink v. McNabb, 287
N.W.2d 596, 600 (Iowa 1980). It should be noted that both the interrogatory
considered in Blink v. McNabb and Complainant's Interrogatory No. 14 request
the identification of potential witnesses. Id. at 599. See Finding of Fact
No. 3A.
6A. Under the Rules of Civil Procedure, if a party wishes to take oral
deposition of any person, it must provide "reasonable notice in
writing to every other party to the action. The notice shall state the time
and place for taking the deposition and the name and address of each person
to be examined." Iowa R. Civ. P. 140(b)(1)(emphasis added). It may
also be necessary to obtain and serve a subpoena duces tecum to compel the
person to be deposed to appear 'for the examination and to bring specified
materials with him. Id.
7A. It should be noted that the duty set forth by the rule is to "seasonably"
supplement the response to a discovery request. Rule 122. If this duty is
not met, "[t]he subjective explanation for the default is irrelevant.
It makes no difference whether it was due to failure to prepare for
trial or to an intentional purpose to gain the benefit of surprise.
The rule bars the result without regard to cause, except for those beyond
control." Kilker v. Mulry, 437 N.W.2d 1, 4 (Iowa App. 1988)(Quoting
White v. Citizen's National Bank, 262 N.W.2d at 816-17).
8A. Although, based on its language, and on the authorities set forth
above, it would appear that Rule 122 is the proper authority for sanctions
resulting from the failure to abide by that rule's requirement to seasonably
supplement responses to interrogatories; Blink v. McNabb, 287 N.W.2d at
600-01 & n.1, seems to suggest that Rule 134 would also be an appropriate
authority for sanctions for failure to meet that duty. See Iowa R. Civ.
P. 134(b). Therefore, it was also cited as authority by the Administrative
Law Judge. (Tr. at 303). Although Rule 134(b) specifically refers to "failure
to comply with order," and there was no discovery order in the instant
case, there was also no discovery order in Blink v. McNabb. Id. at 599.
9A. Respondent has cited no legal authority, case law, statute, or rule
which supports the proposition that a statement in a preheating conference
form reserving a right to call "witnesses with relevant knowledge of
the issues" either relieves it of its duty to seasonably supplement
interrogatories or fulfils that duty. The Commission is aware of no such
authority.
10A. The fact that the Commission and the Complainant had access to the
names of Mr. O'Gorman, Mr. Sears, and Mr. Stansbury or to the interview
notes of Sears and Stansbury does not relieve the Respondent of its duty
to seasonably supplement its answers to interrogatories. See Sullivan v.
Chicago & Northwestern Transportation Co., 326 N.W.2d 320, 324-25 (Iowa
1982). Nor does it indicate that the Administrative Law Judge abused his
discretion in excluding the testimony of these three witnesses. Id. at 324.
"it is not reasonable for [Respondent-Jensen Construction Company]
to argue that the [Complainant] should be charged with the knowledge of
[O'Gorman, Sears, and Stansbury] and it should not." Id. at 324-25.
11 A. Respondent has asserted that ' Blink v. McNabb, 287 N.W.2d 596,
601 (Iowa 1980) stands for the proposition that, before witnesses can be
excluded, the moving party must move for first for a continuance and then
for the sanction of excluding the witnesses. (Tr. at 297). Respondent has
backed away from this position on brief asserting only that it would not
have been error for the Administrative Law Judge to have allowed the three
witnesses to testify in the absence of a motion for continuance. (Respondent's
Brief at 34-35).
12A. In any event, it is clear that Blink v. McNabb does not require
that a party challenging witnesses not listed in answers to interrogatories
to make a motion for continuance either prior to or simultaneously with
a motion to exclude the witnesses. In ' Blink v. McNabb, the Court "held
that the failure to list . . . two [nonexpert] witnesses" in an answer
to an interrogatory requesting "the names of all persons who had knowledge
or information of the matters set forth in the petition and answer ... constituted
a failure to adequately answer or supplement the interrogatory." Callaghan's
Iowa Practice § 31.01 p. 547 (1983). Blink also stands for the proposition
that, in order for a party to preserve error for appeal, in the event unlisted
witnesses are wrongly allowed to testify, the party must either "have
requested a continuance . . .or ... sanctions ... including a request the
testimony of the witnesses be prohibited at trial." Id. (emphasis added).
13A. Respondent has argued that the exclusion of these witnesses under
these circumstances violated its due process right to a fair hearing. (Respondent's
Brief at 35). Respondent has cited no authority in support of its position
and the Commission is unaware of any.
14A. An adjudicative body has wide discretion in ruling on discovery
issues and will be reversed only if an abuse of discretion occurs. See In
Interest of D.L., 401 N.W.2d 201, 202 (Iowa App. 1986). An abuse of discretion
is found "only when such discretion is exercised on grounds or for
reasons clearly untenable or to an extent clearly unreasonable." Farley
v. Ginther, 450 N.W.2d 853,856 (Iowa 1990). Such abuse is rarely found in
Iowa cases and is generally only found in cases involving the dismissal
of an action. In Interest of D.L., 401 N.W.2d 201, 202-03 (Iowa App. 1986).
There was no abuse of discretion by the Administrative Law Judge in excluding
these witnesses.
15A. Offers of proof are permitted in administrative hearings. Iowa Code
§ 17A.12 (6)(d). The Administrative Law Judge appropriately limited
the Respondent to making a narrative offer of proof. It is well recognized
that either narrative or testimonial offers of proof are appropriate. Mauet,
Fundamentals of Trial Techniques 367 (1980). A narrative offer of proof
has the advantange of being less time consuming. Id. Both methods allow
the Administrative Law Judge to determine if he wishes to reverse his ruling
and any reviewing court to determine the nature of the excluded evidence
and whether such exclusion was reversible error. Id. Of course, with a testimonial.offer,
wherein the proponent conducts a direct examination of the witness, no cross
examination is necessary to fulfill the purposes of the offer of proof.
See Goldstein's Trial Technique § 13.31 (2d ed. 1969 & Supp. 1984)(example
of testimonial offer of proof).
ADMINISTRATIVE LAW JUDGE PROPERLY LIMITED CROSS-EXAMINATION OF PAMELA ROSE
TO THE SCOPE OF HER DIRECT EXAMINATION
1. The full scope of Complainant's witness Pamela Rose's brief direct
testimony was to lay a foundation for the introduction of Complainant's
Exhibit 5, a transcript of her interview with Bobby Prater. During the course
of her direct examination, she testified that she had conducted the interview
during her investigation of this complaint. (Tr. at 464-65). Respondent
was allowed to cross-examine Ms. Rose on matters concerning credibility
and the evidentiary foundation laid for the exhibit. (Tr. at 467-72).
2. On brief, Respondent argues that its crossexamination
was improperly limited, when objections that the questions asked were beyond
the scope of direct examination were sustained, because it was not
permitted to examine her with regard to interviews of persons other than
Prater and a general crossexamination into the investigation. (Brief 35).
3. Cross-examination is "limited to the subject matter of the direct examination and matters affecting the credibility of the witness." Iowa R. Evid. 611. This rule "promotes the orderly presentation of the case and thus viewed becomes an aspect of the judge's general control over the mode and order of interrogating witnesses." Richter, Evidentiary Trial Objections § 5.1 (1984). To allow a general exploration of the investigation and witness interviews under these circumstances would effectively nullify the rule. The Administrative Law Judge properly limited the scope of Respondent's cross-examination of Ms. Rose.