FMSHRC ALJ Decision

SECRETARY OF LABOR o/b/o	:	DISCRIMINATION PROCEEDING
CHARLES SCOTT HOWARD,	:
Complainant,	:	Docket No. KENT 2011-1379-D
	:
v.	:
	:
CUMBERLAND RIVER COAL COMPANY,	:	Mine: Band Mill No. 2
Respondent	:	Mine ID 15-18705

On November 3, 2011, the Secretary of Labor filed a Motion to Compel (“Motion”), joined by Complainant Charles Scott Howard, seeking the disclosure of documents listed on the privilege log prepared by Respondent, Cumberland River Coal Company (“CRCC”). The Respondent filed a motion in opposition, and subsequently an in camera review was conducted in order to determine if the privileges claimed by Cumberland were adequate to prevent the disclosure of the documents.

The documents submitted by Respondent for review include 77 pages made up primarily of single or two-page emails. The Respondent provided an updated privilege log with the documents and, at the same time, provided this revised list to the Secretary and Howard. The privilege log indicates that each of the 77 pages is withheld on the basis of the attorney-client privilege and the work product privilege.

Plaintiff Charles Scott Howard alleges that his employment was terminated as a result of his prior protected activities and that CRCC sought a medical opinion that would bar Howard’s return to work. Sec’y Br. 1-2. Howard was working as an underground miner at CRCC in July 2010 when he suffered a head injury. In addition to the physicians who treated Howard, CRCC sought to have Howard examined by Dr. Granacher in March 2011. Sec’y Br. 2. Dr. Granacher concluded that Howard was able to do all the jobs he was trained to do with the only restriction being working “at heights” due to Howard’s head injury. Sec’y Br. 2. Thereafter, Valerie Lee, the human resources director for CRCC, sent a questionnaire to Dr. Granacher seeking further information and a conclusion concerning Howard’s ability to return to coal mine employment. Sec’y Br. 3. In May 2011, Howard’s physician and a neurologist to whom he was referred released Howard to return to his prior employment without restrictions. Sec’y Br. 3. Howard returned to work on May 16, 2011. Sec’y Br. 3. The mine sought the further opinion of Dr. Granacher who then signed the questionnaire stating that Howard was totally and permanently disabled for all work around moving machinery. Sec’y Br. 4. Howard was then terminated from employment at CRCC. Sec’y Br. 4.

With the exception of seven or eight pages, the documents withheld by CRCC are emails, each with a number of recipients. Howard asserts that those emails contain information about the company’s plan to enlist the help of Dr. Granacher, who is known to support the position of employers, and to seek an assessment from Granacher that would prevent Howard from returning to work. All but a handful of the emails are from Penny Carter, an RN, employed by Bluegrass Health Network. CRCC indicates that Carter is their agent “re: Howard’s workers compensation claim.” Carter sent emails to Denise Hartling of the risk management and insurance department of Arch Coal, and to Valerie Lee, a CRCC human resources manager. The emails also listed a string of additional recipients, including Sue McReynolds, a claims administrator for Underwriters Safety & Claims (“Underwriters”) which is listed by CRCC as their agent for Howard’s workers compensation claim, other CRCC and Arch employees, and in some instances a copy was sent to Mike Kafoury, assistant general counsel for Arch. Based upon the limited information provided by CRCC, it appears that CRCC utilizes the services of Underwriters Safety & Claims to administer workers compensation benefits, and Underwriters in turn has a contract with Bluegrass Health Network for case management services. CRCC Br. 4. Therefore, McReynolds works for a company contracted by Arch, and Carter, in turn, is a contractor for McReynolds’ employer. The communications from Carter, an RN with Bluegrass Health, therefore go to McReynolds, an employee of Underwriters, and to various people at Arch and CRCC. A number of those individuals who either sent or received the emails in question are potential witnesses in the case.

The Secretary alleges that the documents being withheld are central to the CRCC decision-making process regarding whether or not Howard would be allowed to return to work. I agree that they may shed some light on that process. The documents reviewed in camera contain many communications between CRCC employees, contractors, agents and others concerning the status of Howard’s ability to return to work, and actions taken by the company in that regard. Moreover, many emails are back and forth, setting appointments, asking if a report is ready, and updating on the actions primarily of Penny Carter and her interaction with Granacher’s office. CRCC states that Penny Carter is employed by Bluegrass Health and was responsible for scheduling doctors’ appointments for Howard, receiving his diagnosis and prognosis, and monitoring the status of his recovery. CRCC Br. 4. The many recipients listed on various emails are employed either by CRCC, their parent Arch Coal, the workers compensation claims company and their subcontractors. Nearly all of the documents relate either directly (e.g., setting appointments) or indirectly (e.g., let’s have a conference call) to the workers compensation claim of Mr. Howard and, specifically, to his ability to return to work. While CRCC alleges that the only communications withheld are those that are “created by or directed to” outside counsel for workers compensation, Denise Davidson, or Arch counsel, Michael Kafoury, that is not necessarily the case. CRCC Br. 6. CRCC also argues that these two attorneys were included, along with a list of other recipients, for the purpose of providing legal advice. CRCC is involved in a number of legal cases involving Howard, including other discrimination cases before the Commission and before the U.S. District Court. In the cases not related to workers compensation, CRCC is represented by other outside counsel, and not by Davidson or Kafoury.

The Secretary argues first that the attorney-client privilege does not apply because the neither the person writing the email or receiving it is a “client” of CRCC, nor are the emails always directed to attorneys for CRCC. In addition, some of the emails, including those to Denise Hartling contain facts which she will be called upon to testify about and those cannot be shielded by a privilege. Further, the Secretary argues that there can be no work product privilege because the documents were not gathered in anticipation of litigation, nor are they a part of any information gathered by an attorney who represents a party in this discrimination litigation. She argues that, since Denise Davidson is a workers compensation counsel for Underwriters and Kafoury is an assistant counsel for Arch Coal, their work product applies only to the workers compensation litigation.

CRCC argues that a number of emails are directed to their outside workers compensation counsel, Denise Davidson, and Arch’s Assistant General Counsel, Michael Kafoury. The remaining names on the emails are either employed by CRCC or are their agents, or the persons have a “common business purpose.”

The documents were either generated for the purpose of obtaining legal advice or with an “eye toward existing or anticipated litigation.” CRCC Br. 3. CRCC further argues that these emails were written to the in-house or outside attorney, and they supply information to the attorney for the purpose of receiving legal advice.

The mine alleges that the attorney-client privilege applies to each of the 77 pages provided for in camera review. The documents can be divided into three general groups. First, the emails, described above, primarily from Penny Carter to a myriad of people with an occasional response. Next, the memos or pages from day planners from Jack McCarty, a CRCC employee and Valerie Lee, a CRCC human resources employee, are a separate group. Finally, there are four letters from Denise Davidson regarding the workers compensation claim of Howard.

I put these letters in a separate category, as they are the only pages that may have a legitimate claim of attorney-client privilege.

The Supreme Court has explained that the attorney-client privilege “rests on the need for the advocate and counselor to know all that relates to the client’s reasons for seeking representation if the professional mission is to be carried out.” Trammel v. United States, 445 U.S. 40, 51 (1980). The Court reiterated this “need to know” focus in Upjohn v. U.S., 449 U.S. 383, 390 (1981), where it stated that “the privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.”

The attorney-client; 5482;5482 privilege generally protects communications made by the client in confidence to his attorney. In order to claim the privilege, CRCC must demonstrate that the criteria for the attorney-client privilege have been met, namely:

(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is

a member of the bar of a court or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

See Hawkins v. Stables, 148 F.3d 379, 383 (4^th Cir. 1998) (citing U.S. v. Jones, 696 F.2d 1069, 1072 (4^th Cir. 1982).

CRCC has met none of the requirements in addressing the emails as privileged. First, although a number of the emails contain the name of the in-house attorney for Arch, there is no indication that those emails came from someone who holds the status of “client.” CRCC merely alleges that it is self-insured and, as a result, sees those working for Underwriters as employees or agents of CRCC. Penny Carter is even further removed from CRCC, as she is a contractor for Underwriters, not an employee or agent of CRCC. While I agree that employees, and in some cases, agents, can be clients of in-house counsel, the relationships here are too tenuous to indicate an attorney-client relationship. However, if Penny Carter or persons at Underwriters have an attorney-client relationship with CRCC attorneys, the emails are not sent to the in-house attorneys for the purpose of securing an opinion on law or legal services. Further the communication was made to any number of persons or strangers. The attorneys were merely another name on the string of recipients, and the fact that an attorney may have been on the string of recipients, does not make the email a privileged communication. I find, that there is not sufficient proof that the information-givers have significant ties to CRCC or share a common interest or business purpose, as asserted by CRCC. Even if they do, the emails are not for the purpose of seeking legal advice or opinion. Hence, CRCC has not met its burden of demonstrating that it meets the criteria for asserting the attorney-client privilege for the emails.

Moreover, factual information that may have been conveyed to Respondent’s counsel by one or more authors of the emails, is generally not privileged or protected by the attorney-client privilege or the work product doctrine simply because the same facts have been conveyed to an organization’s attorney. Upjohn Co. v. U.S., 449 U.S. 383, 395-396 (1981). Thus, “a party cannot conceal a fact merely by revealing it to his lawyer.” Id. at 396; United States v. Davis, 131 F.R.D. 391, 401 (S.D.N.Y. 1990) (“[I]n house counsel’s law degree and office are not to be used to create a privileged sanctuary for corporate records.”); Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 93 Civ. 6876, 1995 U.S. Dist. Lexis 14808, (S.D.N.Y. Oct. 10, 1995) (“Discoverability of a communication depends on its nature, rather than its source. A fact is discoverable regardless of how a deponent came to possess it.”). Accordingly, documents prepared by the employees of contractors of CRCC or its parent company that contain factual information, are not protected. A review of the emails here demonstrates that each and every one contains factual information, such as appointment times and dates, the receipt of reports from various doctors concerning Howard’s condition, and a general report regarding the actions taken by one of the contractors for CRCC or Underwriters. There is one email from CRCC’s outside attorney simply forwarding an email from Howard’s attorney (# 63-64) and some emails that include Kafoury, an Arch attorney, as one of many on a string of addresses, containing a brief response. (#49, 52 and 69-72). I find nothing that appears to be information provided to an attorney from a client in any of the emails, that were submitted for the purpose of obtaining legal advice and I find that they contain no advice from an attorney, but merely the conveyance of facts and an occasional inquiry into the status of Howard’s appointments and forthcoming physicians reports. Therefore, I find, not only, that none of the items listed as an email on the privilege log provided by Respondent are subject to the attorney-client privilege but that the documents contain factual information that is not protected.

Outside of the 69 pages that are emails, there is a claim of attorney-client privilege for the day planner of Valerie Lee (#1-2), the day planner of Jack McCarty (#67), and a memo from Jack McCarty (#75). While they are not subject to an attorney-client privilege, the information redacted relates to other employees whose privacy may be violated by the disclosure of the full document. CRCC represents that these four documents have been provided in the redacted version, and I find that the redactions are appropriate. The material redacted appears to be information about other employees and not related to Howard in any way.

Finally, there are several letters from Davidson, the workers compensation attorney, to Underwriters concerning Howard (#19, 39, 53 and 59). These letters are directed to Sue McReynolds, the claims adjuster at Underwriters, and while they merely repeat what the doctors have told Underwriters, they do include some limited legal opinion as to the meaning of the reports. Although CRCC has not demonstrated that Davidson has an attorney-client relationship with them, I err on the side of caution in this instance. Therefore, I find these four documents to be subject to the attorney-client privilege and protected from disclosure.

The 69 pages of emails discussed above are also claimed as privileged under the theory of attorney work product. The attorney work product doctrine protects from disclosure materials assembled by or for an attorney in anticipation of litigation. Fed. R. Civ. P. 26(b)(3) and (4). It includes documents prepared by someone other than an attorney, but for the same purpose. The protected documents may be ordered disclosed only upon a showing that the party seeking discovery has substantial need for them and is unable to obtain their substantial equivalent by other means. “In ordering discovery . . . the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.” Fed. R. Civ. P. 26(b)(3).

Commission Procedural Rule 56(b), 29 C.F.R. § 2700.56(b), provides that parties may obtain discovery of any relevant matter that is not privileged. In ASARCO, Inc., 12 FMSHRC 2548 (Dec. 1990), the Commission discussed the;1329;1330;1331;1329;1330;1331 work product privilege accepting the general standards of the federal court. In order to be protected by this immunity under Fed. R. Civ. P. 26(b)(3), the material sought in discovery must be: (1) “documents and tangible things;” (2) “prepared in anticipation of litigation or for trial;” and (3) “by or for another party or by or for that party’s representative.” See generally 8 C. Wright & A. Miller, Federal Practice and Procedure § 2024, pp. 196-97 (1970); 6 J. Moore, J. Lucas & G. Grotheer, Moore's Federal Practice ¶26.64 (2d ed. 1989). It is not required that the document be prepared by or for an attorney. Wright & Miller, supra, § 2024, pp. 207-09; Moore, supra, ¶26.64[2]; U.S. v. Chatham City Corp., 72 F.R.D. 640, 642-43 (S.D. Ga. 1976).

If materials meet the tests set forth above, they are subject to discovery “only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Fed. R. Civ. P. 26(b)(3). If the court orders that the materials be produced because the required showing has been made, the court is then required to “protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” Id.; Asarco 12 FMSHRC 2548 (Dec. 1990). The burden of satisfying the three-part test is on the party seeking to invoke the ;1522;1523;1524;1522;1523;1524privilege, but once that party has met its burden, the burden shifts to the party seeking disclosure to make a requisite showing that there is substantial need and undue hardship to overcome the;1557;1557 privilege. P. & B. Marina, Ltd. Partnership v. Logrande, 136 F.R.D. 50, 57 (E.D.N.Y. 1991), aff'd, 983 F.2d 1047 (2d Cir. 1992).

As in ASARCO, the key question here is whether the materials sought were prepared in anticipation of litigation. The materials in dispute were prepared by some contractors, and in some instances by employees of Arch or CRCC. In light of the nature of the emails, the documents cannot be fairly said to have been prepared with of the prospect of litigation. Instead, I find that the documents were prepared in the ordinary course of business and not for the purpose of litigation. The 69 documents are primarily a summary by a contractor of the actions she has taken with regard to Howard’s work injury. They include information about doctors, appointments, transmittals of doctors reports and schedule changes, and are simply not directed at litigation but would be generated in the normal course of business.

The phrase “prepared in anticipation of litigation” was defined in Hickman v. Taylor, 329 U.S. 495 (1947), which answered “the basic question” of whether one party’s counsel may “inquire into materials collected by an adverse party’s counsel in the course of preparation for possible litigation.” Id. at 505. Attorney work product was defined as the “files and the mental impressions of an attorney . . . reflected . . . in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways.” Id. at 510-11. The court notes, with regard to factual information that may have been conveyed to Respondent’s counsel by one or more of these employees or contractors, that purely factual information is generally not privileged or protected by the work product doctrine simply because the same facts have been conveyed to an organization’s attorney. Upjohn Co. v. U.S., 449 U.S. 383, 395-396 (1981).

Here the emails contain almost entirely factual information. I have found no deliberation, opinion, comments, or revelations of mental impressions of an attorney or a person other than an attorney. The facts of this particular case, and a review of the 69 pages of documents, lead me to conclude that the documents were not generated in the course of an investigation, were not prepared for possible litigation, and were not prepared by an attorney or someone acting in her place. The documents were not prepared “in anticipation of litigation.”

Finally, even if it could be said that the documents were subject to the work product privilege, the Secretary has shown a substantial need for the factual information in the documents. A review of the documents has established that they contain information so related to critical events that Howard could have a substantial need for the documents in preparation of his case. At the heart of this case is the allegation that CRCC deliberately chose Dr. Granacher to render an opinion and sought to influence that opinion. The emails contain facts that relate to those allegations, and Howard would have no other means to establish those facts. Hence, the need for disclosure is substantial. I see nothing in the emails that would lead me to believe that they need to be redacted to remove any impression or opinion of a CRCC or Arch attorney.

The documents, the 69 emails, are therefore shielded neither by the attorney-client nor the attorney work product privileges asserted by Cumberland River Coal Company (“CRCC”). The Secretary’s Motion to Compel Production is GRANTED, in part, and CRCC is hereby ORDERED to provide a copy of each document attached to its privilege log with the exception of the documents numbered 1, 2, 67, 75, 19, 39, 53, and 59.

Mary Sue Taylor, Office of the Solicitor, U.S. Dept. of Labor, 618 Church St., Suite 230, Nashville, TN 37219.

Wes Addington, Appalachian Citizens Law Center, 317 Main St., Whiteburg, KY 48158

Willa Perlmutter and Glenn Grant, Crowell & Moring LLP, 1001 Pennsylvania Ave N.W., Washington D.C. 20004-2595