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.