Chapter II - Subchapter C

§ 2-29 Discovery

In an employment discrimination case, where the employer claimed the complainant was fired for poor performance, administrative law judge took an adverse inference against the employer due to the employer's negligent failure to preserve certain key documents - sales reports and a recent performance evaluation for the complainant and similarly situated employees - which were sought by the complainant in discovery. Comm'n on Human Rights ex rel. Manning v. HealthFirst, LLC, OATH Index No. 462/05 (Mar. 15, 2006), adopted, Comm'n Dec. & Order (May 10, 2006).

This section, applicable to Human Rights cases heard at OATH, permits the imposition of sanctions specified in rule 1-33(e) for failing to comply with or object to a discovery request in a timely fashion, even absent an order compelling discovery.  ALJ grants petitioner’s motion to preclude specific financial documents requested but not supplied and precludes related testimony.  Comm’n on Human Rights ex rel. Rose v. Co-Op City of New York, d/b/a Riverbay Corporation and Cooper, OATH Index No. 1831/10, mem. dec. (Apr. 29, 2010).

Imposition of sanctions under this rule are within the discretion of the administrative law judge.  ALJ declines to sanction respondent for his failure to comply with a discovery request, given respondent’s lack of English proficiency and unrepresented status.  Comm’n on Human Rights ex rel Latif v. New Master Nail, Inc., OATH Index Nos. 1576/10 & 1577/10 (Aug. 10, 2010), adopted, Comm’r Dec. & Order (Nov. 16, 2010).

Noncompliance with disclosure order would subject party to sanctions under 48 RCNY §§ 1-33(e), and 2-29(c), including but not limited to preclusion of evidence, striking the answer or precluding asserted defenses, and/or costs. Comm'n on Human Rights v. G.P.C. Realty Corp., OATH Index No. 228/04, mem. dec. (Feb. 26, 2004).