745 Discovery

Dismissal of a complaint as a sanction for failure to comply with discovery is not appropriate where the Complainant was represented by legal counsel and the administrative law judge did not first make a determination as to whether the Complainant was to blame for the discovery failure. (Citing Industrial Roofing Services, Inc. v. Marquardt, 2007 WI 19, ¶ 61, 299 Wis. 2d 81, 103-04, 726 N.W.2d 898). Vandenbusch v. The Bay at North Ridge Health & Rehab. Ctr. (LIRC, 07/31/23).

The ALJ appropriately denied the pro se complainant’s request for last-minute discovery assistance where the Complainant failed to avail herself of the opportunity to engage in pre-hearing discovery according to the schedule and procedures set up by the ALJ. Eide v. Swiss Tech, LLC (LIRC, 08/29/23).

Dismissal as a sanction for failure to comply with discovery is not appropriate where the Complainant was unrepresented and received limited direction from the administrative law judge, but nonetheless made a good faith effort to comply with voluminous and complex discovery requests. Hamilton v. Froedtert Med. Coll. - Mem'l Hosp. (LIRC, 04/29/20).

The administrative law judge made adequate efforts to assist an unrepresented Complainant to understand and comply with discovery. After the Complainant provided incomplete responses to written discovery, the administrative law judge appropriately granted a motion to compel. The administrative law judge then appropriately dismissed the complaint on a motion to dismiss that alleged that the Complainant had failed to comply with the order to compel, which the Complainant did not contest. The commission did not address the Complainant’s assertion in his petition for review that he did comply with the order to compel, since he did not make that assertion to the administrative law judge although the administrative law judge gave him ample opportunity to make that argument prior to dismissing the complaint. Ellenbecker v. Infinity Food Group (LIRC, 06/10/19).

It was not an appropriate exercise of discretion for the administrative law judge to dismiss a complaint as a sanction for failing to cooperate with discovery where the Complainant was unrepresented, had a learning disability, and had received limited direction from the administrative law judge regarding how to respond to the Respondent’s discovery requests, but nonetheless made an effort to comply. Moore v. Dairy Queen (LIRC, 03/11/19).

Dismissal of the complaint was appropriate where the Complainant did not attend his deposition or notify the Respondent that he would be unable to attend and did not provide responsive materials to written discovery requests, even after being ordered to do so by the administrative law judge. The Complainant’s actions evinced an intent not to cooperate with the discovery process. Under these circumstances, the ALJ's dismissal of a complaint was not an abuse of discretion. Ogbujiagba v. REM Wisconsin, Inc. (LIRC, 02/22/19).

An administrative law judge only has jurisdiction over those portions of a complaint that are before the administrative law judge. When a Complainant failed to appear at a hearing on probable cause, an administrative law judge could only dismiss the claims that were the subject of that hearing, and not other claims that still remained to be decided at a merits hearing before another administrative law judge. Birmingham v. Capital Finishing, LLC (LIRC, 07/31/18).

Dismissal of the complaint was an appropriate sanction when the pro se Complainant made no effort to arrange transportation to his deposition, even though he was aware that failure to appear could result in the dismissal of his complaint, and where it was determined that the administrative law judge had made adequate efforts to assist him in understanding and complying with the discovery process. Belizaire v. Sweet Additions, LLC (LIRC 05/30/18).

Dismissal of an action or proceeding, while permitted by statute, is a harsh sanction for a discovery failure. Dismissal is appropriate only if the non-complying party's conduct is egregious and indicates an intent not to cooperate with the discovery process. Xiong v. Logistics Health, Inc. (LIRC, 10/24/17), citing Kutschenreuter v. Roberts Trucking (LIRC, 04/21/11).

Dismissal of the complaint as a sanction for failure to comply with discovery is appropriate against an unrepresented party where the administrative law judge made efforts to assist the Complainant in understanding and complying with the discovery process and the Complainant was aware of the consequences of failing to do so but made no effort to respond to the Respondent’s discovery requests. Xiong v. ABR Employment Servs. (LIRC 10/24/17).

The ALJ’s pre-hearing order which, without warning, terminated discovery months before the hearing, was an abuse of discretion. Although the Complainant was serving confusing and burdensome discovery on the Respondent, and a protective order may have been justified, there was no justification to put a stop to all further discovery months before the expected hearing date, especially considering that the parties were about one month into a four-month period of discovery which had previously been granted by another ALJ. Absent a showing of prejudice to the Complainant as a result of the termination of discovery, however, the outcome of the case is affirmed. Shi v. UW Sys. Bd. of Regents (LIRC, 09/11/15).

The Complainant had months to start discovery but waited to do so until so close to the hearing date that it virtually ensured there would be no time to resolve any discovery disputes prior to the hearing. Given the circumstances, the Administrative Law Judge’s denial of the Complainant’s discovery motion, filed less than ten days before the hearing, was a proper exercise of her discretion. Ionetz v. Carmax Waukesha (LIRC, 10/16/14), aff’d Ionetz v. LIRC (Jefferson County Cir. Ct., 05/21/15).

The Complainant had approximately 17 months prior to hearing during which she was permitted to use all the tools of discovery under Wis. Stat. ch. 804, but she failed to conduct any discovery until making an eleventh-hour subpoena request. Allowance of the subpoena request would have caused a delay in the hearing, giving an undeserved benefit to the Complainant for being dilatory. It was not an abuse of discretion for the ALJ to turn down the request. Paskiewicz v. Marshfield Clinic (LIRC, 06/27/14).

Dismissal of a complaint as a sanction for discovery noncompliance was error in this case where the non-compliance was the fault of Complainant’s counsel, and not of the Complainant. An alternative rationale resting dismissal on matters “deemed” admitted because discovery requests for admission were not responded to, is also rejected, because the Complainant's opposition to dismissal is effectively a request for withdrawal of those “deemed” admissions, which is granted on the grounds that it will subserve the presentation of the merits. Romero v. Boumatic, LLC (LIRC, 06/27/14).

The question of whether to sanction a party for destruction, or spoliation, of evidence, is a matter within the discretion of the trier of fact. The ALJ did not abuse his discretion in failing to impose a sanction where it was not shown that the party responsible for the destruction knew or should have known at the time of destruction that litigation was a distinct possibility, and that the documents would constitute evidence relevant to the pending or potential litigation. Kelly v. Sears Roebuck & Co. (LIRC, 05/30/14).

An ALJ’s authority to impose discovery sanctions under ch. 804, Stats., is limited to situations involving either non-compliance with an order compelling discovery under sec. 804.12(2), Stats., or a discovery failure listed in sec. 804.12(4). An ALJ does not have authority under ch. 804 to sanction a Complainant based on a finding that the Complainant lied at her discovery deposition. Stephens v. Renaissance Place (LIRC, 12/12/13).

The Respondent failed to provide the Complainant with copies of evaluations of potentially similarly-situated employees in response to a request for production of documents, based on the explanation that the documents were not in the Respondent’s possession. The burden is on the party resisting production to prove that compliance is not possible because of non-possession of documents. The ALJ misallocated the burden of proof by requiring the Complainant to prove that the Respondent had possession of the documents. Reversal or remand is not required, however, because the ALJ’s error did not prejudice the Complainant. In weighing the prejudicial effect of a mistaken procedural ruling, the error must be placed in the context of the evidence actually presented in the case. The Complainant failed to show that his situation was similarly situated to that of the employees who were the subjects of the evaluations sought by the Complainant in discovery, and failed to present other evidence raising an inference of discriminatory motive. Obasi v. Milwaukee Sch. of Eng’g (LIRC, 10/14/13).

By failing to renew his request for employer records after the employer objected to the request, either before the hearing or at the hearing, the Complainant must be considered to have withdrawn his request for the records. Hungerford v. The Boldt Co. (LIRC, 05/17/13).

LIRC reviews ALJ orders imposing sanctions for non-compliance with discovery orders, under an abuse of discretion standard: the question is whether the ALJ reasonably exercised discretion, by examining the relevant facts, applying a proper standard of law using a rational process, and reaching a reasonable conclusion. Anderson v. Columbia-St. Mary’s Hosp. (LIRC, 04/16/13).

Dismissal of a complaint may be an appropriate sanction for a Complainant’s failure to comply with a Respondent’s discovery requests. The relevant inquiry is whether the non-complying party intentionally or deliberately delayed, obstructed, or refused the requesting party’s discovery demand, or whether the noncomplying party’s conduct, even though unintentional, is so extreme, substantial, and persistent that it can properly be characterized as egregious. Anderson v. Columbia-St. Mary’s Hosp. (LIRC, 04/16/13).

Even taking into account that the dismissal of a complaint is the most serious step that can be taken as a sanction, the ALJ's exercise of discretion here was reasonable, where the ALJ considered the whole history of the discovery process, described what occurred accurately, and applied a standard which focused on whether the Complainant intended to comply with the order he had issued. It was reasonable to find that Complainant's non-compliance with her discovery obligations and with the ALJ’s order to compel, was intentional, because of its persistence in the face of the clear and repeated warnings to the Complainant by both the Respondent's counsel and the ALJ. These circumstances made it a reasonable inference, if not a compelling one, that the Complainant did not actually intend to comply with the obligations imposed on her by the discovery requests and the ALJ's order. Dismissal of the complaint was therefore affirmed. Anderson v. Columbia-St. Mary’s Hosp. (LIRC, 04/16/13).

In deciding whether the dismissal of a complaint is an appropriate sanction to impose on an unrepresented party for failing to respond to discovery requests, there must be a determination whether the Administrative Law Judge made adequate efforts to assist the party in understanding and complying with the discovery process prior to dismissing the complaint. This case was remanded to the Equal Rights Division because the Complainant, who was unrepresented by legal counsel, had not received any assistance or guidance in complying with the Respondent’s discovery requests. The Administrative Law Judge granted the Respondent’s motion to compel discovery without providing the Complainant any opportunity to respond. Moreover, the Administrative Law Judge failed to notify the Complainant about the consequences of failing to comply with his order compelling discovery. Duncan v. Int'l Union of Operating Eng'rs, Local 139 (LIRC, 09/11/12).

In deciding if dismissal of a complaint is an appropriate sanction to impose on an unrepresented party, the commission will take into account whether the administrative law judge made adequate efforts to assist the party in understanding and complying with the discovery process prior to dismissing. Duncan v. International Union of Operating Engineers Local 139, (LIRC 09/11/12).

An Administrative Law Judge improperly dismissed a complaint based upon the Complainant’s responses to several Requests for Admission filed by the Respondent. Under sec. 804.11(2), Stats., withdrawal of admissions may be permitted when the presentation of the merits would be subserved thereby and the party who obtained the admission fails to show that withdrawal or amendment will prejudice the party maintaining the action or defense on the merits. It is clear that the Complainant opposed the dismissal of his complaint based on his responses to the admissions. Such opposition was effectively a request for withdrawal of those admissions. The inquiry into whether the presentation of the merits would be subserved by allowing withdrawal of the admissions involved consideration of whether the admissions were contrary to the record in the case. It is clear that the significant issues in the case were, in fact, in dispute. In his complaint, in his submissions to the investigator, and in his responses to the Respondent’s interrogatories, the Complainant had made it clear that he believed that the Respondent had unlawfully discriminated against him. The admissions requested were plainly contrary to the record of the positions the Complainant had taken in this case. Further, the Respondent would not be prejudiced by the withdrawal of the admissions. The Respondent would simply be in the position that it had been before the admissions. Rationalizing dismissal without a chance for hearing on the theory that the Complainant actually admitted that he was not discriminated against, when he clearly believed and contended that he was discriminated against, would involve relying on a willful fiction. The dismissal of the case was set aside and the matter was remanded to the Equal Rights Division for hearing. Ford v. Briggs & Stratton Corp. (LIRC, 07/24/12).

As a general matter LIRC conducts a de novo review and acts as an original fact-finder and reviewer of an ALJ’s decision. However, where LIRC is asked to review an ALJ’s exercise of discretion in ruling on discovery matters the standard is not whether LIRC believes that a particular position has been substantially justified and whether attorneys’ fees and costs should have been awarded, but whether it finds the ALJ’s decision on the issue to have been an abuse of discretion. A discretionary decision will be sustained if the ALJ has examined the relevant facts, applied the proper standard of law using a rational process, and reached a reasonable conclusion. Kutschenreuter v. Roberts Trucking (LIRC, 04/21/11).

The complaint was appropriately dismissed where the Complainant failed to appear at a deposition and failed to comply with an ALJ’s order that he explain his failure to comply with discovery. On appeal to LIRC, the Complainant indicated that he was incarcerated and that was the reason he had not appeared for his deposition. The Complainant had never notified the Equal Rights Division that he was incarcerated. Further, it appeared that the mail which was sent to the Complainant at a post office box number was being forwarded to him. Therefore, the Complainant’s failure to provide any response to counsel’s discovery request or to the Administrative Law Judge’s order to respond to the Respondent’s motion to compel discovery was intentional and his complaint was appropriately dismissed. Perez v. SYNICO Staffing (LIRC, 12/09/10).

Dismissal of a complaint for failure to comply with a discovery order is appropriate only in cases of bad faith or egregious conduct on the part of the Complainant. Bad faith, by its nature, cannot be unintentional. There must be a finding that the non-complying party intentionally or deliberately delayed, obstructed or refused the requesting party’s discovery demand. The non-complying party’s conduct may be characterized as egregious if it was extreme, substantial and persistent, (even though unintentional). Further, the decision to impose sanctions is not dependent upon a showing that the opposing party was actually prejudiced by the delay or failure to respond to discovery. Perez v. SYNICO Staffing (LIRC, 12/09/10).

Dismissal of a complaint as a sanction for refusal to cooperate with discovery is a drastic step; however, it is one which is warranted in certain cases. The failure of a party to attend his own deposition is considered a very serious default, as evidenced by the fact that it is singled out in the statutes as being a potential grounds for sanction up to and including the dismissal of a complaint the first time it happens, even absent a warning such as an order to compel. The sanction of dismissal of an action will be sustained if there is a reasonable basis for the determination that the non-complying party’s conduct was egregious and without clear and justifiable excuse. In this case, the notice of deposition was sent to the Complainant at his most recent address of record, followed by a reminder notice. The Complainant never informed the Respondent that he would be unable to appear at the scheduled deposition. He provided no excuse for his failure to appear, although he was given a specific opportunity to do so by the Administrative Law Judge. This leads to the inference that there was, in fact, no valid excuse for the failure to appear. Griffin v. Manor Care Health Serv. (LIRC, 03/23/10).

An Administrative Law Judge may render a judgment by default against a party who fails to comply with a discovery order. The Administrative Law Judge had notified the Respondent that failure to comply with a discovery order granting the Complainant’s motion to compel discovery would result in a finding of discrimination without hearing. Notwithstanding this clear warning about the consequences of failing to comply with the discovery order, the Respondent took absolutely no steps to do so. Smith v. RWS Trucking (LIRC, 11/18/09).

The statute permitting a party to withdraw deemed admissions does not require the party seeking withdrawal to demonstrate that the failure to respond to the admissions in a timely manner was with good cause. Rather, the party moving for withdrawal or amendment of the admissions must show that the presentation of the merits will be served, and the party who obtained the admission must fail to demonstrate that withdrawal or amendment would prejudice the party in maintaining the action on the merits. Johnson v. Roma Pizza II (LIRC, 02/25/09).

The Complainant’s argument that the Respondent’s notice of deposition was served without proper notice was without merit. A subpoena is not necessary to compel a party’s attendance for a deposition. The Respondent had mailed notice of its discovery requests to the Complainant at his last-known address, in accordance with sec. 801.14(2), Stats. Perkins v. BOS MRS Enter. (LIRC, 11/26/08).

The dismissal of the Complainant’s complaints was warranted because his conduct in failing to respond to the Respondent’s discovery requests was intentional, it evinced bad faith, and it was without justifiable excuse. The Complainant did not appear for his rescheduled deposition, he did not provide documents requested by the Respondent, and he did not return phone messages the Respondent’s attorney left him regarding his failure to appear at the deposition and to provide the requested documents. Perkins v. BOS MRS Enter. (LIRC, 11/26/08).

The Complainant’s numerous and repeated failures to comply with the Administrative Law Judge’s explicit discovery orders in this case were deliberate and sufficiently egregious to justify dismissal of her charge. The Administrative Law Judge had attempted to carefully guide the Complainant through the discovery process, specifying in detail what she was required to provide and giving her numerous opportunities to provide it, explaining in explicit terms what the consequence would be for her failure to do so. Roen v. Allen Bradley Rockwell Automation (LIRC, 08/19/08).

The dismissal of a complaint as a sanction will be sustained if there is a reasonable basis for the ALJ’s determination that the non-complying party’s conduct was egregious and without clear and justifiable excuse. In this case, the Complainant’s failure to respond to the Respondent’s discovery requests was egregious. He did not comply with the Respondent’s requests for production of documents. He did not respond to the Respondent’s written interrogatories. Nor did he appear for his scheduled deposition. The Complainant’s assertion that he had “no time” to respond to the discovery requests was not believable. As a party who brought an action against another party, the Complainant had responsibilities and obligations that he had to attend to in pursuit of that action. His complaint was properly dismissed for failure to respond to the Respondent’s discovery requests. Moya v. Clarity Care, Inc. (LIRC, 07/25/08).

It was too late for a Complainant to raise an issue relating to discovery for the first time at hearing where she had failed to file a motion to compel discovery or to otherwise bring this discovery matter to the attention of the Equal Rights Division prior to the hearing. Matson v. Aurora Health (LIRC, 03/21/08).

Under sec. 804.11(2), Wis. Stats., a court “may permit withdrawal or amendment [of the admission] when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment would prejudice the party in maintaining the action or defense on the merits.” The party moving for withdrawal or amendment of the admissions must show that the presentation of the merits would be served, and the party who obtained the admission must fail to demonstrate that withdrawal or amendment of the admissions would prejudice the party in maintaining the action on the merits. It is not necessary for a party seeking to amend or withdraw an admission to bring a formal motion in every case. Federal courts have held that the party making the admission must show that presentation of the merits will be subserved by withdrawal, and that this inquiry involves consideration of whether the admission is contrary to the record in the case. In this case, presentation of the merits of the action would be subserved by permitting withdrawal of the admissions. There is no indication that the Complainant did not dispute liability in this case. The admissions were contrary to the record as shown by the Complainant’s responses to the Respondent’s other discovery requests. Further, the Respondent could not fairly argue that withdrawal of the admissions would prejudice it in maintaining its defense against the action. The prejudice contemplated by the rule is not simply that a party would be worse off without the admission. Rather, a party benefiting from the admission must show prejudice in addition to the inherent consequence that the party will now have to prove something that would have been deemed conclusively established if the opposing party was held to its admissions. Nabors v. Kelly IT Resources (LIRC, 10/06/06).

A court may permit withdrawal or amendment of admissions in a Request to Admit when the presentation of the merits of the action would be subserved thereby and the party who obtained the admissions fails to satisfy the court that withdrawal or amendment would prejudice the party maintaining the action on the merits. Whether the presentation of the merits will be subserved by withdrawal involves consideration of whether the admission is contrary to the record in the case. In this case, the Respondent’s admissions were contrary to the record. Further, there was no showing that the withdrawal of the admissions in any way prejudiced the Complainant’s claim against the Respondent. Jackson v. Quality Carriers (LIRC, 03/17/06).

A dismissal of a complaint for failure to answer an interrogatory or to permit inspection does not need to be preceded by a motion for an order compelling an answer or inspection, the granting of said motion and then the party’s failure to obey the order before a judge may order dismissal of the action (i.e., the procedure described in secs. 804.12(1)(a), (b) and 804.12(2)(a)3, Stats). A party may also obtain dismissal of a complaint as a sanction under sec. 804.12(4), Stats. That statute does not require a violation of a discovery order to justify sanctions; failure to comply with the statutory directive is sufficient. The imposition of sanctions is discretionary with the judge. However, dismissal is a drastic penalty that is appropriate only where the non-complying party’s conduct is egregious or in bad faith and without clear and justifiable excuse. In this case, the day after his discovery responses were due, the Complainant asked for an extension of time to submit a response. The Complainant was not represented by legal counsel at the time. The Complainant indicated that he did not respond to the discovery requests because he “didn’t have the foggiest idea what they were talking about.” The record does not indicate that the Complainant’s conduct was so extreme, substantial and persistent that it could be characterized as egregious. Therefore, the dismissal of the complaint was not warranted on this basis. Swanson v. Kelly Serv. (LIRC, 10/13/04).

It is not necessary for a party seeking to amend or withdraw an admission to bring a formal motion in every case. A party seeking to withdraw an admission must show that the presentation of the merits will be served, and the party that obtained the admission must fail to demonstrate that allowing withdrawal or amendment of the admission would prejudice the party in maintaining the action on the merits. Swanson v. Kelly Serv. (LIRC, 10/13/04).

Sanctions may be imposed for failing to comply with discovery requests where the non-complying party’s conduct is egregious or in bad faith and without a clear and justifiable excuse. In order to dismiss a complaint on the basis of bad faith, there must be a finding that the non-complying party intentionally or deliberately delayed, obstructed, or refused the requesting party’s discovery demand. In this case, the Administrative Law Judge had a rational basis for dismissing the complaint where the Complainant refused to respond to a question asked of him at a deposition, even after the Administrative Law Judge directed him to answer the question (which was related to where he was currently employed). However, a discovery sanction is limited to the case before the Administrative Law Judge. Here, the Administrative Law Judge had only part of the case before him. The remaining portion of the case had previously been dismissed in a Preliminary Determination on lack of timeliness grounds. The Complainant had appealed the Preliminary Determination dismissing that portion of his complaint, and that appeal had not yet been resolved. Because that appeal was not before the Administrative Law Judge who resolved the discovery issue, that portion of the complaint was not properly dismissed. Josellis v. Pace Indus. (LIRC, 06/21/02).

Where the Complainant failed to respond to the Respondent’s Requests For Admissions, those matters were conclusively established by operation of law. The Respondent then sought to dismiss the complaint based upon the admissions, which included admissions that the Complainant was accommodated when he presented limited duty slips, that the Complainant engaged in conduct that warranted discipline and was given discipline because of his conduct, and that the Complainant was terminated from his employment because of his violation of a directive regarding the use of safety equipment. Based upon these admissions, and upon the Complainant’s statement indicating that he had no admissible evidence upon which he could establish his claim that he had a disability, the Administrative Law Judge properly concluded that the complaint should be dismissed. Gross v. Sodexho Marriott Mgmt., Inc. (LIRC, 06/21/02).

Sec. 804.12(1)(c), Wis. Stats., contemplates that a separate hearing will be held on the issue of whether fees and costs should be awarded in connection with a discovery motion. However, a separate hearing was not required where the Complainant waived the right to such a separate hearing by his long delay in submitting a statement of the fees and costs being sought. Wells v. Roadway Express (LIRC, 05/13/02).

Dismissal of a complaint as a sanction for refusal to cooperate with discovery is a drastic step, but it is warranted in certain cases. In this case, dismissal was warranted where the Complainant engaged in a course of conduct evidencing a lack of any serious intention to cooperate in the discovery process. Even after the Administrative Law Judge ordered him to comply, the Complainant continued to refuse to cooperate. Reed v. Wurth USA (LIRC, 09/25/01).

The Administrative Law Judge improperly required the Complainant to pay costs, including attorneys fees, in connection with her Request for Production of Documents. The provisions of sec. 804.12(1)(c), Stats., “Award of Expenses of Motion,” do not by their terms apply to motions to shorten or lengthen time to respond to discovery requests. Fauteck v. Sinai Samaritan Med. Ctr.> (LIRC, 11/09/00).

The failure of a party to attend at their own deposition is considered a very serious default, as evidenced by the fact that it is singled out in the statutes as being a potential grounds for sanctions up to and including the dismissal of a complaint the first time it happens, even absent a “warning.” Here, the complaint was properly dismissed where the Complainant failed twice to attend at his own deposition, the second time after such a warning had been issued. The imposition of an order for payment of fees and costs incurred was also authorized and reasonable. The assessment of such an order against a Complainant and his counsel was appropriate in view of the fact that the attorney also failed to appear at the deposition. McAdoo v. Wm. Beaudoin & Sons (LIRC, 04/19/00).

The disclosure of some documents in the context of discovery may be subject to a protective order to prohibit dissemination of the documents beyond the confines of the litigation. In this case, the protective order issued by the Personnel Commission stated: “The following materials filed by Respondent and provided to Complainant or his representative may be used by Complainant or Complainant’s representative only for the purpose of litigating this case or related cases involving identical or similar issues in other forums and involving the same parties, and may not be disclosed by Complainant or Complainant’s representative for any other purpose. The Complainant is directed to inform the Department of the name and address of any expert or other witness Complainant intends to consult prior to divulging any of this material to any such person, so that the Department may serve copies of this order on such person prior to disclosure of the material, and any such person is directed not to disclose the materials to the public or outside the confines of this proceeding.” Fondow v. DOR (Wis. Pers. Comm'n, 01/19/00).

An Administrative Law Judge has the authority to order the execution of a medical records release as an adjunct to a medical examination ordered under sec. 804.10 (1), Stats. Dismissal of the complaint was an appropriate sanction for the Complainant’s refusal to comply with an order that he execute a medical records release. Michalzik v. Time Ins. Co. (LIRC, 01/16/98)

A complaint was appropriately dismissed as a sanction for the Complainant’s failure to comply with discovery where the evidence established that the Complainant sought every opportunity she could to frustrate the Respondent’s attempts to depose her, and that she did so, not based on a good faith belief about what she was or was not entitled to do, but rather on the basis of her assessment of what she could get away with without having her case dismissed. Castiglione v. Giesen & Berman (LIRC, 06/25/97).

A party’s motion for sanctions in a discovery matter was appropriately denied where that party failed to make a motion for a protective order under sec. 804.01(3), Stats. Priegel v. Garden Way (LIRC, 04/24/97).

The complaint was appropriately dismissed where the Complainant failed to appear at a scheduled deposition on two separate occasions. The Complainant's failure to appear at the second deposition was either intentional or in bad faith, or reflected a callous disregard for his obligation to submit to discovery. Dobbs v. Super 8 Motel (LIRC, 10/15/96).

A complaint was properly dismissed where the Complainant failed to appear at a pre-hearing conference. Peterson v. Harvest Life Ins. Co. (LIRC, 04/19/96).

The complaint was appropriately dismissed as a sanction for the Complainant’s failure to comply with discovery requests and orders. The Complainant's failure to comply with the Administrative Law Judge’s discovery order was egregious and without any clear or justifiable excuse. Burgess v. Milwaukee Forge (LIRC, 06/13/95).

It was not error for the Administrative Law Judge to preclude the Complainant from conducting further discovery between the first day of hearing and the date of the continued hearing, which was several months later. The Administrative Law Judge did allow the Complainant to subpoena materials for production at the continued hearing. Nenning v. Milwaukee County Med. Complex (LIRC, 02/09/95).

The Complainant’s unwillingness to take time off from work does not constitute a valid objection to the taking of her deposition. Woods v. Medalcraft Mint, Inc. (LIRC, 06/10/94).

Dismissal of a claim is a permissible sanction for a Complainant's refusal to comply with discovery. The complaint in this case was appropriately dismissed where the Complainant clearly failed to comply with the Administrative Law Judge’s order to provide certain medical authorization and documents. Gemmell v. ABFM (LIRC, 02/24/94).

It was appropriate for an Administrative Law Judge to issue an order compelling discovery where the Respondent argued that the internal complaint procedures which it followed in resolving discrimination complaints (which was written pursuant to the employer's voluntary affirmative plan) was protected as work-product. The report was not prepared in anticipation of litigation, and so may not be considered protected work-product. State ex. rel. Madison Metro. Sch. Dist. v. LIRC, (Dane Co. Cir. Ct., 10/01/93).

Given that discovery is meant to be broad and far-reaching in order to focus the issues for hearing, it would be unfair to allow the Respondent to allege failures in the Complainant's work performance as an employee of the Respondent's law firm while simultaneously attempting to shield itself from responding to the Complainant's discovery requests on the grounds of attorney-client privilege. Bahr v. Levine & Epstein (LIRC, 06/05/92).

The Administrative Law Judge properly quashed a subpoena for the production of documents which was issued two days before the beginning of the second day of the hearing. The party seeking the subpoena could not have introduced the documents into the record even if the documents had been produced according to the subpoena since the Department’s administrative rules require that all exhibits must be submitted no later than the tenth day prior to the day of the hearing. Vaisman v. Aldridge, Inc. (LIRC, 10/21/91).

The Administrative Law Judge appropriately quashed a subpoena duces tecum which the Complainant served upon the Respondent shortly before the hearing. The subpoena requested significant volumes of documents. If these documents were produced at hearing and the Complainant was given the opportunity to review them in order to determine which were relevant to her case and which were not, the review process would be extremely time consuming and would inordinately delay the hearing. The Complainant had the opportunity to conduct this kind of search for relevant evidence by way of pre-hearing discovery. Because none of the documents had been identified by the Complainant prior to the hearing as potential exhibits, they would have been subject to exclusion in any event. Chacon v. Dairy Equipment Co. (LIRC, 02/15/91).

A Complainant can be required to appear for a deposition, even if that means missing work and not being paid for the time involved. Holubowicz v. DOC (Wis. Pers. Comm’n, 08/22/90).

The Administrative Law Judge abused his discretion and denied the Respondent due process of law when he prohibited the Respondent from further deposing the Complainant after she abruptly walked out of her deposition. The questions posed by the Respondent’s attorney were either relevant or reasonably calculated to lead to admissible evidence. Face-to-face discovery was essential to the Respondent’s preparation of its defense to the charges of discrimination raised by the complaint. Therefore, an Absolute Writ of Prohibition was issued restraining the Equal Rights Division from any further proceedings until the Complainant’s deposition was taken and the Respondent had completed its discovery. State of Wis. ex rel. Assoc. Schools, Inc. v. DILHR, Moriarty & Schacht (Milwaukee Co. Cir. Ct., 09/19/89).

A complaint was properly dismissed as a sanction for the Complainant’s failure to comply with the Respondent’s discovery requests. Complainant’s attorney was further ordered to pay the Respondent’s actual costs and attorney’s fees incurred because of the Complainant’s refusal to comply with discovery requests. If the attorney was to blame for the dismissal, the Complainant’s remedy was a suit for malpractice. Smith v. Norris Adolescent Ctr. (LIRC, 04/21/89).

Dismissal of the complaint was too severe a sanction for the Complainant’s failure to answer interrogatories. The Complainant did answer the interrogatories, albeit late. The Respondent never brought a motion to compel, nor did it show prejudice. Bie v. WLUK-TV (LIRC, 02/29/88).

The proper remedy for incomplete responses to discovery requests is a motion to compel, not a motion for sanctions. The party requesting the information must establish its relevancy to the complaint but need not show that it would be admissible at the hearing. Paul v. DHSS (Wis. Pers. Comm’n, 10/14/83).