Discovery

In General

 

A request for discovery which is not limited in time is overbroad. In re Gutierrez, CSA 65-11, 2 (Order 12/27/11). 

Appellant’s request for documents from a non-party without naming the custodian of records is unenforceable  In re Gutierrez, CSA 65-11, 2 (12/27/11). 

Request for documents which may assist Appellant in a claim in his appeal is proper.  In re Hill, CSA 52-10, 1 (Order 1/20/11). 

Recording of Career Service Board hearing was discoverable where: the Board approved agency’s reorganization plan; appellant claimed agency unlawfully deconsolidated its appropriation accounts based on age; appellant claimed agency assigned him into that unit based on age discrimination; and consolidation decisions require a showing of a high correlation between the activities of units sought to be consolidated.  In re Hill, CSA 52-10, 2 (Order 1/20/11).   

Appellant’s request for personnel files of Appellant’s co-workers who were similarly disciplined is improper, where Appellant’s request was untimely, and he failed to provide good cause excusing his delay.  Allowing such a substitution for discovery would prejudice opposing parties’ ability to prepare timely responses, and, if opposed, may delay hearing.  In re Napoli, CSA 74-10, 1 (Order 1/6/11).     

Appellant’s request to have agency identify particular language in a Career Service Rule is improper since the Career Service Rules are available to the public for review on the City’s website. In re Martinez, CSA 85-10, 1 (Order 1/5/11).   

A discovery request with compound assumptions, renders it unduly vague. In re Martinez, CSA 85-10, 2 (Order 1/5/11).     

Where Appellant claimed her agency should have notified her that she qualified for FMLA leave, her  discovery request was legitimate which asked what training the agency provides supervisors regarding health conditions that qualify for FMLA leave. In re Martinez, CSA 85-10, 2 (Order 1/5/11).       

Appellant’s discovery request for more than five interrogatories was denied, where the Rules presumptively limit interrogatories to five, and she failed to provide good cause to enlarge that number.  In re Martinez, CSA 85-10, 2-3 (Order 1/5/11).       

Where appellant challenged discipline for her use of sick leave, her request for the production of documents was valid which asked for memoranda, notes, policies, and correspondence that provided notice that an employee may not substitute vacation/compensatory time for sick time when sick time was exhausted but appellant was legitimately ill.  In re Martinez, CSA 85-10, 3 (Order 1/5/11).        

Requests for production from entities not party to an appeal must be served upon the entities themselves.  In re Martinez, CSA 85-10, 3-4 (Order 1/5/11).          

In appeal of termination in part for dishonest use of sick leave, appellant waived privilege  to shield physician-patient communications regarding his treatment for migraine on day covered by leave request.  In re Cullen, CSA 127-08, 2 (1/7/09). 

Records from the Employee Assistance Program relevant to appellant's compliance with  his stipulation and agreement and not covered by any privilege are discoverable.  In re Cullen, CSA 127-08, 2-3 (1/7/09).  

Police reports related to a domestic incident and transportation to a detox facility are  discoverable on the issue of the state and level of appellant's intoxication in an appeal of  termination for breach of a stipulation and agreement related to use of alcohol.  In re Cullen, CSA 127-08, 3 (1/7/09).  

Credit card and bank records to prove previous purchases of alcohol are not sufficiently probative of issues where termination was for use of alcohol on one particular day. In re Cullen, CSA 127-08, 3 (1/7/09). 
 
Records of detox facility are discoverable on the issue of whether appellant was  intoxicated on the day he claimed sick leave for a migraine.  In re Cullen, CSA 127-08, 3 (1/7/09).  

Requests for documents from non-parties, including other agencies, must be supported by good cause and show the relevance of the requested documents to the appeal. In re Harrison, CSA 55-07 (Order 11/18/08), citing §19-45 B.  

Requests for subpoenas to compel the attendance of witnesses must be supported by good cause, and call for testimony that is relevant to the appeal. In re Harrison, CSA 55-07 (Order 11/18/08), citing §19-45 C.  

A motion for a subpoena made after the deadline imposed by pre-hearing order may be denied as untimely.  In re Harrison, CSA 55-07 (Order 11/18/08). 

The Career Service Rules disfavor extensive discovery.  In re Rogers,  CSA 25-08 (5/13/08); CSR § 19-45 A. 

Appellant must comply with discovery order after withdrawal of his attorney.  In re Bradley, CSA 60-06, 2 (Order 12/7/06). 

Appellant’s failure to comply with discovery orders is not excused by withdrawal of his attorney where appellant had sole access to requested information.  In re Bradley, CSA 60-06, 2 (Order 12/7/06). 

Because the hearing process is designed to provide a fair but relatively quick and inexpensive resolution to employment disputes, the rules disfavor extensive discovery, as it places an undue burden on those who are hard-pressed to afford protracted litigation expenses.  In re Ortega, CSA 81-06 (Order 11/13/06). 

Extensive discovery, including the taking of depositions, is limited to extraordinary circumstances, defined as “good cause.”  § 19-45.  In re Ortega, CSA 81-06 (Order 11/13/06).

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Depositions 

Depositions are permitted If it is not feasible for a subpoenaed witness to appear at hearing. In re Rogers, CSA 25-08 (5/13/08); C.S.R. § 19-45 D. 

Motion to depose a witness was denied when appellant was unaware if witness would be unavailable to attend hearing.  In re Rogers, CSA 25-08 (5/13/08); C.S.R. § 19-45 D. 

Untimely motion for deposition that failed to request an extension of time or state good cause for tardiness was denied.  In re Rogers, CSA 25-08 (5/13/08).  


Subpoena duces tecum (subpoena to produce documents)  

A motion requesting a document that is already designated as an exhibit in the appeal will be denied as unnecessary.   In re Harrison, CSA 55-07 (Order 11/18/08).  

A motion for a subpoena to produce which fails to demonstrate any probative value to an issue on appeal will be denied as a failure to state good cause.   In re Harrison, CSA 55-07, (Order 11/18/08). 

Subpoena request for entire file of doctor pertaining to death of a jail inmate while under appellant deputy sheriff‘s watch is relevant or may lead to the discovery of relevant information in appellant’s dismissal.  In re Rogers, CSA 25-08 (5/13/08).

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Contact Us

OHR Employee Relations Unit
201 W. Colfax Ave., Dept 412
Denver, CO 80202

For general employee relations questions contact:
Peter.Garritt@denvergov.org
HR Supervisor, Employee Relations and Records
720 913-5671

Mark.Croteau@denvergov.org
Staff HR Professional
720 913-5654

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Wilma.Springer@denvergov.org
ADA Coordinator
720 913-5620

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