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

Discovery in SOX Whistleblower Retaliation Cases

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.

In an AIR21 whistleblower case, Judge Clark noted the broad scope of discovery that a whistleblower can obtain to prove “contributing factor” causation:

In whistleblower cases like this one, the contributing factor element in particular may be established by circumstantial evidence, which encompasses a wide variety of evidence. This may involve evidence regarding more than the specific individuals involved in the incident at issues, such as evidence of work pressures, inconsistent application of an employer’s policies, or employer hostility to protected activity. See, e.g.,  Bechtel v. Competitive Techs., Inc., ARB No. 09-052, ALJ No. 2005-SOX-033, slip op. at 13 (ARB Sept. 30, 2011); Bobreski v. J. Givoo Consultants, Inc, ARB No. 09-057, ALJ No. 2008-ERA-003, slip op at 13 (ARB June 24, 2011). As the scope of admissible evidence on these issues is broad, the scope of discovery – which is only required to be reasonably calculated to lead to the discovery of admissible evidence – must be broader. 29 C.F.R. § 18.51(a); see Migliore v. Rhode Island Dep’t of Env. Mgmt, ALJ No. 98-SWD-00003, slip op. at 3-4 (ALJ Nov. 10, 1998).

SOX Whistleblower Retaliation Law

The whistleblower protection provision of the Sarbanes-Oxley Act prohibits a broad range of retaliatory adverse employment actions, including discharging, demoting, suspending, threatening, harassing, or in any other manner discriminating against a whistleblower.  Recently a federal court of appeals held that merely outing or disclosing the identity of a whistleblower is actionable retaliation under SOX.

The SOX whistleblower lawyers at Zuckerman Law have represented CEOs, CFOs, in-house counsel, partners at audit firms and other senior professionals in high-stakes whistleblower matters.  Click here to read reviews and testimonials from former clients.  Drawing on our substantial experience representing corporate whistleblowers, we have published a free guide to SOX titled Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers:

Sarbanes-Oxley (SOX) Whistleblower Lawyers

We have assembled a team of leading whistleblower lawyers to provide top-notch representation to Sarbanes-Oxley (SOX) whistleblowers.  Recently Washingtonian magazine named two of our attorneys top whistleblower lawyers. U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 Law Firm in the Washington D.C. metropolitan area.


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The whistleblower lawyers at Zuckerman Law have substantial experience litigating Sarbanes Oxley whistleblower retaliation claims and have achieved substantial recoveries for officers, executives, accountants, auditors, and other senior professionals.  To schedule a free preliminary consultation, click here or call us at 202-262-8959.



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.