Santa Rosa, CA
— Simas & Associates, Ltd. received notification this week that it had prevailed in its Motion to Compel the production of requested discovery in a matter before the Office of Administrative Hearings
"Winning a Motion to Compel the production of discovery in administrative hearing practice
against a California state agency is rare," explained Steven Simas
, owner and founder of Simas & Associates, Ltd. "However, the behavior of the board in this particular case was so extreme that it warranted the attempt. The client was properly advised on the risks moving forward. Nevertheless, reason prevailed and I am glad that [the Office of Administrative Hearings] is making the [Board] comply."
The case involved the denial of an application for licensure. The applicant was a highly successful student in their respective health care field in California. Licensed in multiple states, the applicant received a number of prestigious job offers in California. However, the applicant had several expunged criminal convictions. The applicant was transparent and forthright in disclosing the convictions and circumstances underlying them and resulting rehabilitative efforts
in response to the Board's inquiries. Ultimately, that the licensing board decided the convictions merited a denial. After immediately requesting a hearing, the licensing board delayed referring the matter to the Office of the Attorney General for almost the entire statutory period for providing a hearing on the denial (see Business & Profession Code, section 487) before a Statement of Issues
"The client immediately filed a Special Notice of Defense
," explained Justin D. Hein
, first chair attorney on the case. "And that was coupled with a Request for Discovery that mirrored the discovery statute for administrative proceedings."
Administrative proceedings before the Office of Administrative Hearings pursuant to the Administrative Procedure Act provide for discovery according to Government Code, section 11507.6. It specifies the extent of discovery that must be produced.
"Unlike civil litigation," explained Hein, "administrative proceeding discovery is extremely limited. One must not expect to get every single morsel of information, notation, documentation, correspondence, or other recording that could possibly identify witnesses or lead to admissible evidence. Rather, much of what is considered "discoverable" is left up to the discretion of the underlying agency."
But here, the licensing board used a unique standard. It was called, "none."
"Basically, we asked for discovery and all they sent back were items submitted by [the applicant] or our office on [the applicant's] behalf," explained Hein. "After one look by [our client] of what was provided, we knew the discovery was deficient. We knew there were communications the [licensing agency] had with [our client] that had been improperly omitted. Furthermore, we know internal discussion by the [licensing agency] about [our client] had been omitted. So, with approval from [the client], we pressed."
In response, the Board, through its counsel, said, "nope."
"Counsel for the [licensing agency]," Hein continued, "basically said 'we know there were other communications about [our client] but we don't care and don't feel like looking for them because we don't think they are relevant to our case.' In response, I asked, 'has your client - or you for that matter - read the discovery statute? Because that is not the standard for production.' If there were discussion about our client, our client's application, or the denial of our client's application, [the applicant] is entitled to examine it and make a copy of it for purposes of presenting a defense."
The Board dug its heals and said, "make me."
"Well," continued Hein, "that is what we did. Through great overall effort and excellent, research, argument, and writing, Lindsay
[Yoshitomi] and Chrisy
[Strickland] put together a great motion. And when a grasping-at-straws opposition came-in, Lindsay and Chrisy put together a direct and efficient reply within a matter of a day."
The Presiding Judge of the Office of Administrative Hearings granted the motion. The order compelled the Board to conduct an investigation into all that it possessed or controlled that reflects that which is discoverable under the statute. And, once identified, the order compelled the Board to produce, make available for investigation, or to shield by asserting a known discovery privilege. The order did not award requested sanctions at this time.
"All in all," Hein concluded, "the motion was a great success. Our client is happy because the [licensing agency] will have to divulge its internal communications as to why it denied this highly capable individual a license. While much is still left to be learned, we hope that this will ultimately motivate the [licensing agency] to come to its senses and award [the applicant] a license."
For more information on Simas & Associates, Ltd. and its Administrative Law
, Healthcare Law
, and Professional Licensing Defense
practice areas and Administrative Hearing
legal services, please visit our website at www.simasgovlaw.com