FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001

May 10, 2012

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ORDER DENYING JEFF SCOTT’S REQUEST TO REPRESENT

TODD DESCUTNER

Before: Judge Barbour

On April 30, 2012 Jeff Scott filed an electronic request to represent Todd Descutner, the complainant, in this discrimination proceeding. Commission Rule 3(b)(4), 29 C.F.R. § 2700.3(b)(4), permits any person to practice before the Commission with the approval of the presiding judge. In a May 01, 2012 order I directed Mr. Descutner to file a letter advising the court whether he intended to appear pro se, represent himself, or have Mr. Scott represent him. Order 1-2. Also, Mr. Scott was directed to file an entry of appearance if he intended to appear on behalf of Mr. Descutner. Id. On May 04, 2012 the court received Mr. Scott’s entry of appearance and a letter from Todd Descutner stating that he was “asking Jeff Scott to help represent me in further actions with this case. He will be allowed access to all the information I have on my case.” Entry of Appearance and Letter from Todd Descutner.

On May 07, 2012 the court received Newmont’s’s responsive objection to Mr.Scott’s appearance in the case. In the objection, Newmont advised the court that Mr. Scott was party to a discrimination complaint brought against Newmont (Jeff Scott v. Newmonot USA Limited, Docket No. WEST 2012-79-DM). After the complaint was filed and answered the case was assigned to Commission Administrative Law Judge Margaret Miller and discovery ensured. Pursuant to Mr. Scott’s request for the personnel files of 18 present and former Newmont employees, Newmont agreed to turn over to Mr. Scott the disciplinary portions of the files provided they were subject to an order that the employee information not be disseminated outside of the litigation before Judge Miller. As a result, Judge Miller ordered “that Newmont disclose to [Mr. Scott] the personnel files [of the designated present and former employees], only as [the files] relate to the disciplinary action, reprimand, or other personnel action connected to performance.” Jeff Scott v. Newmont, Protective Order (March 22, 2012) at 2. Judge Miller further ordered that “as to these 18 personnel files . . . they will not be disclosed by any party or agent of any party to any person or company outside of this litigation.” Id. She added that, “The files will be sealed in a separate envelope and clearly labeled as such and kept in that form by each party or any agent of the party.” Id. at 2-3. Following this, Mr. Scott’s case was heard on April 11, 2012. A decision is pending.

In the meantime, discovery was ongoing in Mr. Descutner’s case, and in response to a Newmont discovery request, Mr. Descutner sent Newmont’s counsel copies of documents produced in the Scott case, including copies of documents involving disciplinary information from the personnel files of the 18 miners. The documents were marked “Confidential.” Further, Newmont’s counsel states that upon being deposed, Mr. Descutner stated that Mr. Scott gave him the confidential documents because Mr. Scott thought the documents would help Mr. Descutner with his case. Objection 2.

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  Newmont’s counsel asserts that Mr. Scott’s delivery of the protected documents to Mr. Descutner was in direct violation of Judge Miller’s protective order. Counsel also maintains that Mr. Scott’s misconduct should preclude him from representing Mr. Descutner. Objection 3. The court agrees. It is clear that many of the documents Mr. Descutner provided to Newmont were from protected and sealed files. See Objection 2, n.1. Judge Miller’s order required the files to be marked “Confidential” and Judge Miller explicitly prohibiting disclosure of the files and the information therein to any person outside of the Scott litigation, but Mr. Scott game them to Mr. Descutner anyway. Id. at 1-2, Exhibit 2 at 3.

Mr. Scott was represented by counsel, Andrew Rempfer, and the court assumes discovery was served upon Mr. Rempfer and that Mr. Scott received the protected personnel information from his counsel, who should have warned Mr. Scott about prohibited disclosure. But be that as it may, even if Scott’s counsel did not advise him of the confidential nature of the information, the court agrees with Newmont’s cousel that Mr. Scott, as a party to the case, cannot claim ignorance of the judge’s order, and that he may be assumed to have understood its strictures and must be held to them.

Commission Rule 56 , 20 C.F.R. § 2700.56(a) - (b), provides that a party may obtain discovery through depositions, written interrogatories, requests for admissions, requests for production of documents or objects or through requests for permission to enter upon property for copying, inspecting, photographing and gathering information and states that “parties may obtain discovery of any relevant, non-privileged matter that is admissible evidence or appears likely to lead to the discovery of admissible evidence.” Personnel information or any other information needs to be obtained through the discovery process using one of the methods provided in the rule. By providing the confidential personnel information to Mr. Descutner rather than by advising Mr. Descutner to proceed with his own discover, Mr. Scott violated Judge Miller’s order. His conduct was no only unethical, it constituted serious misconduct far outside the bounds of what is acceptable in practice before the Commission. As a result, the court finds that Mr. Scott’s conduct bars him from appearing in this case.

This stated, the court is not without sympathy for Mr. Descutner who is appearing pro se. The court understands Mr. Descutner’s desire for assistance in presenting his case (see e-mail response of Todd Descutner (May 9,2012)). However, the court will not entertain representations from a person who flagrantly violates Commission orders, and it urges Mr. Descutner to redouble his efforts to obtain counsel or to find a knowledgeable representative who will abide by the Commission’s rules.

ACCORDINGLY, Jeff Scott’s request to represent Todd Descutner in this proceeding is DENIED. Todd Descutner may continue to appear pro se, representing himself, or he may obtain counsel or other representative.

/s/ David F. Barbour

David F. Barbour

Administrative Law Judge

Distribution:

Jeff Scott, 225 Viewcrest Drive, Spring Creek, NV 89815

Todd Descutner, 372 Tres Cartes, Spring Creek, NV 89815

Karen L. Johnston, Esq., Jackson Kelly PLLC, 1099 18^th Street, Suite 2150, Denver, CO 80202

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