FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue, NW, Suite 520-N

WASHINGTON, DC 20004-1710

February 5, 2013

ORDER COMPELLING DISCOVERY

Before:Judge Tureck

On May 4, 2010, Joseph C. Statler, who was the former General Manager of Production at Eastern Associated Coal’s Federal No. 2 Mine, allegedly instructed two apprentice miners to shovel slop and spillage, and to remove debris from underneath and in close proximity to an unguarded belt tail pulley while the belt was in motion. As a result, 104(d)(2) Order No. 8025255 was issued against Eastern Associated Coal LLC (“Eastern”or “Respondent”) for a violation of 30 C.F.R. 75.1722(c). It is an S&S order that alleges a reasonable likelihood of fatal injuries with a proposed penalty of $70,000.

Following the incident and several interviews, MSHA initiated an investigation under §110(c) of the Act, 30 U.S.C. §820(c). On March 14, 2011, the Secretary filed a Petition for Assessment of Civil Penalty against Eastern. On April 12, 2011, Eastern filed its answer and served the Secretary with its First Set of Interrogatories, Requests for Admissions, and Requests for Production of Documents. This case was assigned to me on June 27, 2011, and I stayed the case on September 13, 2011 pending the resolution of the §110(c) investigation. Further extensions were issued, and the stay was lifted on March 1, 2012.

 Eastern states in its Motion to Compel that it never received a complete response to its discovery requests from the Secretary. Eastern has filed a Motion to Compel Discovery and a Statement Supporting Motion to Compel Discovery (“Resp’t Mot.”). The Motion, filed on August 15, 2012, seeks to compel the Secretary to provide documents related to Eastern’s discovery requests. The Secretary filed a Response in Opposition to the Respondent’s Motion to Compel Discovery (“Sec’y Resp.”) on September 10, 2012 and Eastern filed a reply to the Secretary’s response on September 18, 2012. For the reasons which follow, the motion is granted.

The documents Eastern still seeks, which the Secretary has withheld on the ground of the work-product privilege, are as follows: hand-written notes of interviews of five miners conducted by MSHA inspector Stephen Wilt on May 11 and 12, 2010; notes of interviews of four miners who were interviewed on July 1, 2010, July 12, 2010, July 21, 2010, and September 13, 2010, respectively, apparently as part of the special investigation; and a report of an interview of Mr. Statler by the MSHA special investigator which took place on September 29, 2010.

Eastern argues that none of these statements and notes were prepared in anticipation of litigation and do not meet the requirements for protection under the work-product privilege. Resp’t Mot. at 7-9. It also argues that even if the documents were prepared in anticipation of litigation, it should still be permitted to receive the information because it has a compelling need for the material and it lacks access to a fair substitute. Id. at 7. Since I hold that the documents Respondent seeks are not work-product, I will not address the latter issue.

In her response, the Secretary states that she has provided counsel for Eastern a summary of the special investigator’s interviews of the four miners and the interview of Mr. Statler. Sec’y Resp. at 4. She argues that the summaries should be sufficient to meet Eastern’s needs; that the full documents are privileged under the work-product rule; that Eastern could obtain substantial equivalents of the materials with minimal effort; that Eastern cannot establish a substantial need for the documents; and that providing the full documents would violate the Informant’s Privilege. Sec’y Resp. at 3-4, 9-12.

Work-Product Privilege

The first issue to be resolved is whether the work-product privilege is applicable to the reports of interviews of Mr. Statler and four miner witnesses by the special investigator. If these documents are not work-product, the notes of interviews conducted by the mine inspector as part of his inspection, which were prepared even earlier than the special investigator’s, cannot be work-product. The Commission has held that the work-product rule protects “(1) documents and tangible things, (2) prepared in anticipation of litigation or for trial (3) by or for another party or by or for that party’s representative.” Asarco, Inc., 12 FMSHRC 2548, 2557-58 (Dec. 1990). The burden is on the party seeking to invoke the privilege to demonstrate that this three-part test has been met.

Here, the first and last aspect of the three part test apply since the special investigator’s interview reports are clearly “documents” that were prepared “by or for another party or by or for that party’s representative.” Therefore, whether the work-product privilege applies hinges on whether the special investigator’s witness statements were prepared in anticipation of litigation. Asarco involved a discovery dispute over the notes that a special investigator made while interviewing a supervisory MSHA inspector regarding his conversation with an attorney for the Secretary. The Secretary relies on the following quotation from Asarco to support her position:

A major function of an MSHA special investigation is to determine whether litigation should be commenced under section 110(c) or (d) of the Mine Act. 30 U.S.C. § 820 (c) & (d). A special investigator does not know at the outset of his investigation whether charges will be filed in that particular case. Nevertheless, the purpose of his investigation is to allow the Secretary to determine whether a case should be filed.... [T]his civil penalty case, brought under section 110(a), 30 U.S.C. § 820(a), is closely related litigation and it further appears that it could fairly be said that the documents were prepared in anticipation of that litigation.

Asarco at 2558.

The Secretary argues that this holding in Asarco is dispositive of the issue of whether the notes and interview reports of the special investigator are privileged work-product. I disagree. First, the facts in Asarco which led the Commission to hold that the special investigator’s notes are protected by the work-product privilege are significantly different from those in this case. For one thing, in Asarco an attorney was already involved in the case, which indicates that litigation was either under consideration or had begun; and the document sought through discovery was the special investigator’s notes of a conversation a supervisory inspector had with an attorney, not simply notes and reports of witness interviews. The notes of the conversation with an attorney which were held to be protected in Ansarco were likely to show the attorney’s mental impressions, conclusions, opinions and/or legal theories, the very things that the work-product privilege is intended to protect from disclosure. See, e.g., Hickman v. Taylor, 329 U.S. 495 (1947). But the work-product privilege is not intended to apply to documents prepared prior to the involvement of an attorney which the attorney subsequently uses in his or her trial preparation or plans on proffering during litigation. Here, there is no indication that an attorney was involved during the special investigation. That in Asarco an attorney was already in the picture, and notes of a conversation with the attorney was the document in dispute, makes Asarco materially different from the matter at hand.

That brings me to the second critical difference between Asarco and this case. That an attorney was involved in Asarco indicates that the case was relatively far along when the special investigator’s notes were prepared, at a point where it is likely that litigation was at least being considered even if the decision to litigate had not yet been made. On the other hand, in this case, three of the four interviews conducted by the special investigator were conducted within a little more than two months of the initial inspection, and the fourth was conducted within four months. It is highly unlikely that an attorney was involved in the special investigation even on the date of the latest interview, September 29, 2010, since the Petition of the Secretary of Labor for Assessment of Civil Penalty against Mr. Statler was not issued until December 21, 2011, almost 15 months later. Even the Secretary of Labor’s Petition for the Assessment of Civil Penalty against Eastern, assuming the penalty proceeding against Eastern is even relevant to determining whether the special investigator’s interview notes are protected by the work-product privilege, was not issued until March 14, 2011, almost six months after the latest interview; and since the petition was prepared by a Conference and Litigation Representative, not an attorney, it can be stated with some certainty that an attorney was not involved in Eastern’s case on September 29, 2010.

That the special investigation was not conducted on behalf of an attorney, and a penalty assessment against Mr. Statler was not issued until the very end of 2011, make it difficult to understand how the investigator’s notes of interviews, the latest of which was conducted on September 29, 2010, could be have been prepared in anticipation of litigation. As the Commission held in Asarco:

[P]articular litigation must be contemplated at the time the document is prepared in order for the document to be protected.

Asarco, supra, at 2558 (citation omitted) (emphasis added).

The Secretary also cited the Commission’s decision in Consolidation Coal Co., 19 FMSHRC 1239 (July 10, 1997), to support her position that the special investigator’s notes of interviews were privileged. But rather than support her position, this decision actually supports a contrary conclusion. In Consolidation Coal, in holding that memoranda prepared by a special investigator were protected by the work-product privilege, the Commission stated:

We further find that the documents have been ‘prepared in anticipation of litigation or for trial,’ because each was prepared after MSHA had filed civil penalty proceedings against Consol ....

Id. at 1243 (emphasis added). As was pointed out above, the civil penalty proceedings against both Eastern and Mr. Statler were filed well after the special investigator conducted the interviews in question.

Accordingly, the case law does not support the Secretary’s assertion that the special investigator’s reports of interviews in this case are protected by the work-product privilege, and I find that they are not protected. In addition to the factors discussed above, the Secretary’s contention that special investigations are not conducted in the ordinary course of business is unsupported in the record. Although special investigations may be conducted in connection with only a relatively small percentage of mine inspections, it does not follow that they are conducted outside the ordinary course of the special investigators’ work; and if they were conducted in the ordinary course of business, they cannot be held to be work-product. But regardless of whether the special investigations were conducted in the ordinary course of business, the above discussion shows that it is highly unlikely an attorney was involved in the special investigation, and “particular litigation” was not contemplated, when the interviews by the special investigator in this case were conducted. That the results of the special investigation could lead to litigation does not make the special investigators’ interview reports work-product. Nothing in Asarco or Consolidation Coal leads to a contrary conclusion.

Thus, I conclude that the special investigator’s interview notes of Mr. Statler and the four miners must be turned over to Respondent since they are not protected by the work-product privilege.

The second issue to be resolved is whether Inspector Wilt’s handwritten notes that document interviews conducted on May 11 and 12, 2010 of five miners are protected by the work-product privilege. Clearly, they are not. For they were prepared in the inspector’s ordinary course of business, at a time when litigation could not possibly have been contemplated. Further, at that preliminary stage, an attorney could not have been involved in the matter. Accordingly, Inspector Wilt’s notes of May 11 and 12, 2010 interviews must be provided to Respondent.

Finally, the informant’s privilege is applicable to individuals furnishing information to government officials concerning possible violations of the Mine Act. Secretary/Logan v. Bright Coal Co., Inc., 6 FMSHRC 2520, 2524 (Nov.1984). Here, the informant’s privilege applies to both the special investigator and mine inspector’s notes of interviews of the miners since their statements concern an alleged violation of the Mine Act. Thus, the Secretary may redact the names and other pertinent identifying information from the interview notes regarding the miners. The Secretary argues that producing the documents will require extensive redactions in order to protect the identities of the miners. Nevertheless, the Secretary must still provide the documents, and redact only what is absolutely necessary to protect the identity of the miners. 

ORDER

Based on the analysis above, Eastern’s Motion to Compel Discovery is GRANTED.

It is ORDERED that, within 10 days of this order, the Secretary shall provide copies of Mr. Statler’s interview statements, MSHA inspector Stephen Wilt’s notes of his interviews of miners on May 11 and 12, 2010, and the notes of the interviews of miners by the special investigator on July 1, 12 and 21, 2010, and September 13, 2010, provided that the names of the miners and other information clearly identifying them may be redacted.

/s/ Jeffrey Tureck

Jeffrey Tureck

Administrative Law Judge

Distribution (Certified Mail):

Judson H.P. Dean, Esq., U.S. Department of Labor, Office of the Regional Solicitor, 170 South Independence Mall West, Suite 630E, Philadelphia, PA 19106

Michael Cimino, Esq. and Ben McFarland, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1340, 401 Liberty Avenue, Pittsburgh, PA 15222-1000