747 Pre-hearing disclosure of witnesses and exhibits

The Complainant failed to send a copy of his list of proposed witnesses to the Respondent or the Respondent’s attorney. When the Respondent objected to issuance of a hearing subpoena for one of the witnesses on the Complainant’s witness list, the administrative law judge sustained the objection and did not issue the subpoena. The Complainant failed to rebut the Respondent’s assertion that the notice of proposed witnesses had not been properly served, and that the short notice of the subpoena request was an impediment to the witness’ availability, as the proposed witness was the Respondent’s CEO who had a busy schedule. The administrative law judge’s decision to not grant the Complainant’s request for a subpoena was not an abuse of discretion. Stilwell v. Spooner Health System (LIRC, 03/31/17).

Medical records offered in evidence were properly excluded by the ALJ. The Complainant had failed to timely disclose them to the opposing party prior to hearing, and the ALJ properly considered the factors of surprise and prejudice to the opposing party, and balanced the equities between the parties, before ruling that the records would be excluded. Perkins v. Milwaukee Bd. of Sch. Dir. (LIRC, 07/22/15).

The ALJ improperly exercised discretion by refusing to admit a proposed exhibit that had not been disclosed to the opposing party in compliance with sec. DWD 218.17, Wis. Admin. Code, without first balancing the equities between the parties, and without considering whether the party opposing admission of the exhibit would be prejudiced by its admission. The rejection of the exhibit may have affected substantial rights of the party offering it, making it necessary to remand for a new hearing and decision. Korth v. CHI Towing, Inc. (LIRC, 11/29/13).

In his application of the “ten-day rule,” Wis. Admin. Code § 218.17, the ALJ properly exercised discretion by excluding witnesses from the hearing. The witnesses had not been mentioned in the complaint or the Department’s initial determination, the employer had no reason to know they might be called, and the lack of notice left the employer without adequate time to prepare for their testimony. The primary consideration in applying this administrative rule is to protect parties from surprise and to protect the fairness and due process of the proceedings. In addition, the hearing notice sent to the Complainant clearly set forth the ten-day notice requirement for names of witnesses and copies of documents to be used at the hearing. Coleman v. Levy Restaurants, LLC (LIRC, 3/28/13).

The Administrative Law Judge did not exercise discretion in applying sec. DWD 218.17, Wis. Admin. Code, when the ALJ did not balance the equities as between the parties before refusing to admit copies of medical records (which had been previously produced by the Complainant to the Respondent, but which were not produced a second time in connection with the administrative hearing). The excluded evidence was both relevant and material to the Complainant’s claim. Such evidence, had it been considered, might have resulted in a different conclusion by the ALJ. Consequently, the case was remanded for a new hearing. Rutherford v. LIRC, 2008 WI App 66, 309 Wis. 2d 498, 792 N.W.2d 897.

The Administrative Law Judge properly excluded the Complainant from calling witnesses (other than herself) and from offering any exhibits other than those which duplicated exhibits noticed by the Respondent because the Complainant did not file a witness list or copies of her hearing exhibits prior to hearing. Even though the Respondent’s counsel may have viewed certain of these documents during the investigative process, the Respondent was prejudiced when it had no reason to know which of the numerous documents (which were part of the investigative file) the Complainant intended to rely upon at hearing. Rutherford v. Wackenhut Corp. (LIRC, 01/31/06).

The Administrative Law Judge properly precluded the Complainant from introducing documents which had not been timely identified ten days prior to the day of hearing. While the Respondent may have furnished these documents to the Complainant during discovery, the record indicated that the Respondent had supplied the Complainant with approximately 9,000 documents in response to his discovery requests. By failing to specifically identify which of these documents he intended to use at hearing, the Complainant effectively hid those documents. The Respondent could not guess what information the Complainant would consider relevant and wish to offer at hearing. By identifying documents he intended to use for the first time at hearing, the Complainant frustrated the purposes of sec. DWD 218.17, Wis. Adm. Code. Blunt v. DOC (LIRC, 02/04/05).

Compliance with the requirement of disclosure of witness and exhibit information to the opposing party can be achieved by, and will be complete upon, mailing to the opposing party. Borum v. Allstate Ins. Co. (LIRC, 10/19/01).

The fact that a party’s disclosure of documents was effected by CD-ROM justified the Administrative Law Judge’s decision to exclude the documents. Clark v. Friskies Petcare (LIRC, 08/16/01).

The purpose of the rule requiring pre-hearing exchange of exhibits is frustrated where a party simply serves a huge number of documents (In this case, thousands of documents were served not as copies of documents, but as digital versions of documents on a CD-ROM). By serving thousands of documents, the Complainant effectively hid anything which was potentially relevant and which might be used at hearing in a flood of other papers. The effect is the same as if nothing at all had been served. Clark v. Friskies Petcare (LIRC, 08/16/01).

The rule concerning pre-hearing disclosure of witnesses and exhibits provides that the failure to make the necessary exchange “may” result in the exclusion of the witnesses or the exhibits. The paramount consideration in applying the rule must be its purpose to protect parties from surprise and to protect the fairness and the due process of the proceedings. In a case in which a party would not have been surprised or prejudiced by allowing testimony, it should be allowed. Berglund v. Post Crescent (LIRC, 01/31/01).

Where the Complainant failed to identify the Respondent’s representative as a witness prior to the hearing and the Respondent’s representative was not on notice that he would be called upon to testify, the Administrative Law Judge’s ruling that the employer’s representative was not required to testify was appropriate. Kilgore v. Wisconsin Indianhead Tech. College (LIRC, 04/30/98).

An Administrative Law Judge properly prohibited the Complainant's witnesses from testifying at the hearing where the Complainant had not complied with the requirement to disclose his list of witnesses ten days prior to the hearing. The purpose of the notice requirement for witnesses and exhibits is to give the opposing party proper opportunity to prepare its case against such witnesses and exhibits. A lack of notice prejudices the party that did not receive it. Walker v. Masterson Co. (LIRC, 10/4/95).

The Administrative Law Judge properly excluded both the Initial Determination and a letter sent by the Respondent to the ERD investigator because they had not been disclosed as potential exhibits prior to the hearing. The Complainant had offered the Initial Determination in an effort to rely upon a statement therein to the effect that it was not disputed that her handicap was a factor in her termination. Since the purpose in offering the statement was to prove that the Complainant was handicapped, and since this proof was required to be part of her case in chief, the Complainant could not assert that it was legitimate rebuttal evidence, i.e., something the need for which could not reasonably be anticipated prior to hearing. Geske v. H.C. Prange Co. (LIRC, 12/09/93).

The Department’s administrative rules permit, but do not mandate, that exhibits be excluded if they are not timely served upon the opposing party. The party requesting exclusion must show that he was prejudiced by the late disclosure of the information on the list. Peace v. Milwaukee Plating Co. (LIRC, 08/21/92).

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).

Service of the witness and exhibit disclosure list by mail is complete upon mailing. Pohlen v. Gen. Elec. Co. (LIRC, 04/18/91).

The requirement of filing the witness and exhibit disclosure list with the Department serves mainly to keep the Division informed as to whether the parties are complying with the exchange requirement. The exclusion of relevant evidence simply because it had not been filed with the Division ten days prior to the hearing, without any finding that the opposing party was prejudiced thereby, would be unjustified. Pohlen v. Gen. Elec. Co. (LIRC, 04/18/91).

The Administrative Law Judge has discretion to allow evidence notwithstanding non-compliance with the witness and exhibit disclosure rule. The Administrative Law Judge should consider the question of whether any prejudice would result to the other parties, rather than concluding that there is prejudice per se when service and filing of the witness and exhibit list was untimely. Pohlen v. Gen. Elec. Co. (LIRC, 04/18/91).

Where a party has clearly identified on the record at hearing its desire to call a particular person as a witness, all parties reasonably anticipate that the hearing will continue on a subsequent day before the party proposing a witness rests its case, and the hearing is in fact continued on a subsequent day more than ten days later and the party proposing the witness has not rested its case, sec. Ind. 88.14(1), Wis. Admin. Code, should not be invoked to preclude presentation of that evidence. The opposing party will have had ten days’ opportunity to prepare to rebut the disclosed evidence, just as in the case of initial disclosure. Pohlen v. Gen. Elec. Co. (LIRC, 04/18/91). [Ed. note: sec. Ind. 88.14(1), Wis. Admin. Code, has been renumbered DWD 218.17(1), Wis. Admin. Code.]

The Administrative Law Judge appropriately quashed a subpoena duces tecum served on the Respondent shortly before the hearing. Because none of the documents requested in the subpoena duces tecum had been identified by the Complainant ten days prior to the hearing as potential exhibits, they would have been subject to exclusion in any event. Chacon v. Dairy Equip. Co. (LIRC, 02/15/91).

The Administrative Law Judge’s exclusion of witnesses and exhibits identified in a witness list filed with the Department on the day before the hearing was upheld. Osteen v. Aldridge, Inc. (LIRC, 11/21/89), aff'd sub nom. Osteen v. LIRC (Milwaukee Co. Cir. Ct., 06/15/90), aff’d, (Ct. App. Dist. I, unpublished opinion, 01/15/91).

The purpose of the Department’s rule requiring the exchange of witness and exhibit lists is to avoid undue surprise at hearing. The most important requirement of this rule is the notice provided to the other party. The requirement of service on the Division serves mainly to keep the Division informed as to whether the parties are complying with the exchange requirement. Scott v. Sno Bird Trailer Co. (LIRC, 12/19/90).

Where the Respondent submitted a witness and exhibit list to the Department but failed to serve it on the Complainant, the Administrative Law Judge properly exercised her discretion when she precluded all but one of the Respondent's witnesses and precluded the introduction of any exhibits by the Respondent. Scott v. Sno Bird Trailer Co. (LIRC, 12/19/90).

A finding of no probable cause which was based on testimony of a witness for the Respondent who had not been properly identified as a witness prior to the hearing was reversed where the Complainant was clearly prejudiced by the witness’ testimony because he did not even know who the witness was. Smith v. Menard Lumber Store (LIRC, 05/05/88).

The rule concerning pre-hearing disclosure of witnesses and exhibits provides that the failure to make the necessary exchange "may" result in exclusion. The paramount consideration in applying the rule must be its purpose to protect parties from surprise and to protect the fairness and the due process of the proceedings, so that in a case in which a party would not have been surprised or prejudiced by allowing testimony, it should be allowed. Hansen v. Airborne Freight Corp. (LIRC, 05/21/87).

Where the Complainant had prior knowledge of the requirement for pre-hearing disclosure of witnesses, and failed to make that disclosure, and was unable to show that good cause existed for her failure, and where a substantial potential existed for prejudice to the Respondent if witnesses the Complainant sought to have testify were allowed to testify, it was proper to preclude them from testifying. Brunson v. Columbia Hosp. (LIRC, 05/14/87).

The purpose of the rule regarding pre-hearing disclosure of witnesses and exhibits is to protect the parties from surprise and to ensure the fairness of the proceedings. A Respondent should have been allowed to call a witness who had been identified as a potential witness of the Complainants, since the Complainants could not assert surprise in such a case. Also, where the Complainants’ witness list was filed only nine days before the hearing, this should not result in a dismissal of the case where the filing of the list one day late did not result in any prejudice (i.e., surprise) to the Respondent. Dominquez v. Sawdust Factory (LIRC, 04/16/87).

A Respondent's failure to provide the Complainant with a list of witnesses prior to a no probable cause hearing is not grounds for excluding their testimony where it is offered solely to rebut the testimony of the Complainant's own witnesses. Hammes v. Rain Fair, Inc. (LIRC, 09/28/84).

Evidence offered by the Complainant was properly excluded where the Complainant had failed to exchange a list of exhibits and witnesses with the Respondent beforehand, where the prejudicial effect to the Respondent outweighed the Complainant's assertion that he did not know of the requirements, and where the Complainant had failed to pay the required witness fees. Clarke v. Milwaukee County Med. Ctr. (LIRC, 09/20/84).