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What is the scope of discovery in a Sarbanes-Oxley whistleblower case?

The scope of discovery in Sarbanes-Oxley whistleblower cases is broad.  In an order granting a motion to compel discovery in a Sarbanes-Oxley whistleblower case, an ALJ held that “[u]nless it is clear that the information sought can have no possible bearing on a party’s claims or defenses, requests for discovery should be permitted.”  Leznik v. Nektar Therapuetics, Inc., 2006-SOX-93 (ALJ Feb. 9, 2007).

Sanctions, including dismissal of the complaint, are available for failure to participate in discovery.  See Butler v. Anadarko Petroleum Corp., ARB No. 12-041, ALJ No. 2009-SOX-1 (ARB June 15, 2012) (dismissing complaint due to complainant’s failure to comply with discovery orders and refusal to appear for a deposition); Powers v. Pinnacle Airlines, Inc., 2003-AIR-12 (ALJ Apr. 23, 2003) (ordering complainant to show cause why her complaint should not be dismissed for her failure to cooperate in discovery); Powers v. Pinnacle Airlines, Inc., 2003-AIR-12 (ALJ May 21, 2003) (disqualifying counsel based on conduct before the ALJ).

In Leznik, 2006-SOX-93 (ALJ Nov. 16, 2007), the ALJ imposed an adverse inference instruction concerning the results of any investigation conducted by the employer regarding the complainant’s allegations.  After the ALJ granted complainant’s motion to compel a response to an interrogatory concerning the employer’s investigation, the employer failed to respond to the interrogatory and did not explain with specificity why the information requested was protected by the work product doctrine.

If you are seeking representation in a Sarbanes-Oxley whistleblower case, click here, or call us at 202-262-8959 to schedule a free preliminary consultation.

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Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.