Formal rules of evidence do not apply in Sarbanes-Oxley whistleblower cases, but Department of Labor Administrative Law Judges will apply rules or principles designed to assure production of the most probative evidence. 29 CFR § 1980.107(d). The OALJ has adopted rules of evidence that are substantially similar to the Federal Rules of Evidence. See 29 CFR § 18.101 et seq. An ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious.
In Leznik v. Nektar Therapeutics, Inc., 2006-SOX-93 (ALJ Feb. 9, 2007) (Order Granting Motion to Compel), the ALJ noted that “[u]nlike matters that may ultimately proceed to a jury trial, evidence is broadly admissible at Sarbanes-Oxley hearings under the Secretary’s aegis, where formal rules of evidence play no role. The presiding administrative law judge may exclude only what is ‘immaterial, irrelevant, or unduly repetitious,’ taking care to see that ‘the most probative evidence’ is produced.” Id. at 5 (citing 29 C.F.R. § 1980.107(d))
If you are seeking representation in a Sarbanes-Oxley whistleblower case, contact the experienced SOX whistleblower lawyers at Zuckerman Law by clicking here, or calling us at 202-262-8959 to schedule a free preliminary consultation.