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Discovery

IN GENERAL

Request for past thirty six months of all discipline involving three agency regulations cited by agency in present case not relevant where appellant argued CSB reduced penalty in other cases where similar violations resulted in varying levels of discipline, but in those decisions, there was no deceptive conduct or intent to punish, and they were based on comparison of highly similar scenarios after full hearing on the merits. In re Roybal, CSA 44-16 (Order 8/3/16).

Discipline of other employees is not relevant unless the circumstances are alike in all important respects. In re Roybal, CSA 44-16 (Order 8/3/16), citing In re Napoli, CSB 74-10, 3 (8/18/11); In re Simpleman, CSB 31-06, 2-3 (8/2/07).

Even if appellant had raised discrimination claim, he would be required to show all relevant employment circumstances, including work history, make him similarly situated to comparable employees. In re Roybal, CSA 44-16 (Order 8/3/16).

Granting discovery for cases with non-similarly situated employees creates a danger of re-litigating discipline in past cases claimed to be similar to present case. In re Roybal, CSA 44-16 (Order 8/3/16).

Deliberative process privilege claims and determinations are controlled by City of Colo. Springs v. White, 967 P.2d 1042 (Colo. 1998). In re Steckman, CSA 30-15, 2 (Order 8/21/15).

The main purpose of the deliberative process privilege is to protect the open exchange of opinions critical to the government’s decision-making process when disclosure would discourage such exchanges in the future. In re Steckman, CSA 30-15, 2 (Order 8/21/15).

Exchanges among governmental agency employees are protected only when the material sought to be disclosed is (1) pre-decisional and (2) deliberative. In re Steckman, CSA 30-15, 2 (Order 8/21/15), citing City of Colo. Springs v. White, 967 P.2d 1042 (Colo. 1998).

The “pre-decisional” component of the deliberative process privilege is a communication made before a decision within the ambit of the agency or a decision was made with respect to policy. In re Steckman, CSA 30-15 (Order 8/21/15), citing City of Colo. Springs v. White, 967 P.2d 1042 (Colo. 1998).

“Deliberative” materials must truly reflect the opinions and give-and-take of the process – “the ideas and theories that go into the making of policy” including recommendations, advisory opinions, proposals suggestions and other subjective documents reflecting the personal opinions of the writer and are so candid or personal that disclosure would likely stifle future frank discussion. In re Steckman, CSA 30-15, 2 (Order 8/21/15), citing City of Colo. Springs v. White, 967 P.2d 1042 (Colo. 1998).

When the nature of documents sought is contested as to whether they are protected under the deliberative process privilege, the hearing officer must make an independent determination of the extent to which the privilege applies to each of the documents by balancing the appellant’s interests in disclosure with the agency’s interest in confidentiality. In re Steckman, CSA 30-15, 2 (Order 8/21/15), citing City of Colo. Springs v. White, 967 P.2d 1042 (Colo. 1998).

When a hearing officer determines whether the deliberative process privilege applies, the initial burden falls on the agency, by way of a “Vaughn Index” to show why non-disclosure should be maintained. In re Steckman, CSA 30-15, 2 (Order 8/21/15), citing City of Colo. Springs v. White, 967 P.2d 1042 (Colo. 1998).

Vaughn Index should describe specifically each document which the agency claims is protected, including the author, recipient, and subject matter of each document; should explain why each document qualifies for the privilege, including how the document played a role in the deliberative process; should, by affidavit, explain why disclosure of each document would be harmful; and should distinguish between those portions of the document which may be disclosed and those that are allegedly privileged. In re Steckman, CSA 30-15, 2 (Order 8/21/15), citing City of Colo. Springs v. White, 967 P.2d 1042 (Colo. 1998).

Agency’s Vaughn Index generic description of fifteen emails sought to be protected as “pre-decisional email communication between IOM and IAB regarding investigation and interview considerations” is inadequate to evaluate the nature of the disputed documents. In re Steckman, CSA 30-15, 2 (Order 8/21/15).

Affidavit accompanying Vaughn index is inadequate when it states in conclusory fashion that the documents are all pre-decisional and that disclosure would have a chilling effect. In re Steckman, CSA 30-15, 2 (Order 8/21/15), citing City of Colo. Springs v. White, 967 P.2d 1042 (Colo. 1998) (“The government cannot meet [disclosure] requirements by conclusory and generalized allegations of privilege”).

An appellant may obtain discovery imposed on other employees by the same supervisor under closely similar circumstances, for the purpose of contesting the level of discipline. In re Singleton, CSA 17-15 (Order 5/13/15), citing In re Diaz, CSA 72-06 (1/19/07); St. Croix v. U. Colo. Health Sciences Ctr., 166 P.3d 230 (Colo.App. 2007).

Request for similar discipline under similar circumstances dating back two years is not unduly burdensome. In re Singleton, CSA 17-15 (Order 5/13/15).

Where communications at issue included the OIM, and were either pre-decisional or contained recommendations to the agency, they were protected by the deliberative process privilege. In re St. Germain, CSA 24-14 (Order 9/18/14).

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 5 interrogatories was denied, where the Rules presumptively limit interrogatories to 5, 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, 89-07 & 90-07 (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, 89-07 & 90-07 (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, 89-07 & 90-07 (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).

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, 89-07 & 90-07 (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, 89-07 & 90-07 (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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