that the orders of an administrative law judge must be complied with and that a failure to do so is a sufficient basis to support dismissal of the matter. conduct concerning this matter Uber’s involves not just failing to comply with an order of the administrative law judges, but involves a failure to comply with a directive of the Commissioners as required by the July 28 Secretarial Letter. BIE proposes several possible sanctions for our consideration, including the imposition of civil penalties for each day Uber continues to fail to answer the discovery; grant BIE permission to use a number of trips taken while Uber lacked Commission authority “proxy” without objection or cross-examination; and prohibiting Uber from asserting the defense that transportation was provided by an affiliate of Uber Technologies, rather than by Uber itself. Typical discovery sanctions include precluding a party from offering evidence or a defense which is related to the discovery which a party was directed to provide. However, in this case, we agree with BIE that an unconventional sanction is more appropriate here. Given the unique circumstances related to the advent of transportation network companies, a robust presentation of the facts supporting the contentions of both BIE and the Defendant, Uber Technologies is in the public interest. Precluding Uber from presenting evidence hampers our ability to create a complete record and rendering a decision on the substance of the allegations made in complaint and any defense Uber may have. A decision based on substance rather BIE’s than a decision based upon a procedural default, in this case, more properly serves the public interest. Therefore, we decline to prevent Uber Technologies from offering evidence, at this time. However, willful and repeated failure to comply with our orders cannot go Uber’s unanswered. To do so undermines the integrity of the adjudicatory process. Uber takes the position that BIE should be prepared to support its complaint without the information sought in discovery. Therefore, according to Uber, it has no obligation to provide responses to BIE’s discovery.
that the orders of an administrative law judge must be complied with and that a failure to do so is a sufficient basis to support dismissal of the matter. Uber’s conduct concerning this matter involves not just failing to comply with an order of the administrative law judges, but involves a failure to comply with a directive of the Commissioners as required by the July 28 Secretarial Letter. BIE proposes several possible sanctions for our consideration, including the imposition of civil penalties for each day Uber continues to fail to answer the discovery; grant BIE permission to use a “proxy” number of trips taken while Uber lacked Commission authority without objection or cross-examination; and prohibiting Uber from asserting the defense that transportation was provided by an affiliate of Uber Technologies, rather than by Uber itself. Typical discovery sanctions include precluding a party from offering evidence or a defense which is related to the discovery which a party was directed to provide. However, in this case, we agree with BIE that an unconventional sanction is more appropriate here. Given the unique circumstances related to the advent of transportation network companies, a robust presentation of the facts supporting the contentions of both BIE and the Defendant, Uber Technologies is in the public interest. Precluding Uber from presenting evidence hampers our ability to create a complete record and rendering a decision on the substance of the allegations made in BIE’s complaint and any defense Uber may have. A decision based on substance rather than a decision based upon a procedural default, in this case, more properly serves the public interest. Therefore, we decline to prevent Uber Technologies from offering evidence, at this time. However, Uber’s willful and repeated failure to comply with our orders cannot go unanswered. To do so undermines the integrity of the adjudicatory process. Uber takes the position that BIE should be prepared to support its complaint without the information sought in discovery. Therefore, according to Uber, it has no obligation to provide responses to BIE’s discovery.
1328408.docx