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[DOCID: f:l9472-2.wais]

 
BUCK CREEK COAL, INC.
October 20, 1995
LAKE 94-72


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041


                           October 20, 1995

SECRETARY OF LABOR,             :
  MINE SAFETY AND HEALTH        :
  ADMINISTRATION (MSHA),        :  Docket No. LAKE 94-72, etc.
                Petitioner      :
                                :
           v.                   :
                                :
BUCK CREEK COAL, INC.,          :
                Respondent      :

                ORDER GRANTING OBJECTION TO DEPOSITION
         ORDER TO PRODUCE DOCUMENTS FOR IN CAMERA INSPECTION

     The Secretary, by counsel, has filed a motion objecting
to the Respondent's taking the deposition of MSHA Supervisory 
Special Investigator Michael G. Finnie.  Buck  Creek  has
filed an opposition to  the Secretary's  motion and, further,
requests that  the cases  against  Buck  Creek  be  dismissed
for the Secretary's  failure  to  make  Mr.  Finnie and MSHA
District Manager   Rexford  Music  available for deposition.
In addition, Buck  Creek  has  filed a motion  to compel
production of documents which  the Secretary opposes.[1]

                     Objection to deposition

     The Secretary originally  objected  to Mr. Finnie's 
deposition in  May 1995 solely on the grounds  that  he  was
a manager without  first-hand  knowledge of the facts underlying
these cases.  I denied the motion holding that "[t]he fact that
these individuals are managers does not mean that they do not
have knowledge of the facts  underlying  these cases or  
information that might lead to the discovery of admissible 
evidence."  Buck Creek Coal, Inc.,  17  FMSHRC  845,  849 
(Judge Hodgdon, May 1995).

     In renewing his objection, the Secretary now asserts that
Mr. Finnie is a supervisory special investigator who is an agent
of two grand juries, one investigating Buck Creek and the other
investigating Pyro Mining Co., and as such he has been
instructed  by  the  U.S. Attorney,  pursuant  to  Rule
6(e)(3)(A)(ii) of the Federal Rules of Criminal Procedure, 
that he cannot disclose anything learned in the criminal 
investigations. The Secretary further avers that:

          Mr. Finnie's only knowledge of Buck Creek that could
     be relevant to the matters before the ALJ is based upon the
     criminal investigation of Buck Creek Coal, Inc., and the
     civil special investigations that are ongoing or have been
     completed by other inspectors. The special investigation
     cases are not before this court and involve individuals
     employed by  Buck Creek Coal, Inc. Mr. Finnie supervises
     the investigations and does not conduct the investigations.

(Sec. Mot. at 2.)

     Buck Creek implies that since a ruling has already been 
issued permitting the  deposition of Mr. Finnie, the Secretary
cannot object again.  Furthermore,  it contends that the 
discovery it seeks through the deposition is relevant because:

          Buck Creek intends to explore the Petitioner's 
     enforcement policies pertaining to Buck Creek's mine or 
     similar types of mines, including communications between 
     Buck Creek's and Petitioner's personnel relative to the 
     citations at issue. Also, Buck Creek intends to inquire 
     about the bases  of and underlying  policies  for  the 
     Petitioner's actions. Ultimately, Buck Creek expects 
     to show a lack of factual foundation for the citations  
     and the Petitioner's bias and actual motivation in this
     entire matter.


**FOOTNOTES**

     [1]: Buck Creek filed the original of its opposition and
motion at the Commission office in Washington, D.C. Commission
Rule 5(b), 29 C.F.R. � 2700.5(b), provides that after a judge 
has been assigned to a case and before he issues a decision,
"documents shall be filed with the Judge."

(Resp. Opp. at  4.) Buck Creek does not explain what it 
specifically expects to find out from Mr. Finnie nor does it
address the Secretary's new arguments.

     The Commission has noted that "courts do not permit criminal
defendants  to  employ  liberal  civil discovery procedures to
obtain evidence that would ordinarily  be  unavailable  in the
parallel  criminal  case"  and  stated that the "judge has the
power to impose limitations on the  time and subject matter of
discovery,  which  would permit the civil  matter  to  proceed
without harming the criminal case."  Buck Creek Coal, Inc., 17
FMSHRC 500, 504 (April  1995)  (citations  omitted).   In this
connection,  the Fifth Circuit Court of Appeals has admonished
that "the trial  judge  in  the  civil proceeding should [not]
ignore  the  effect  discovery  would   have   on  a  criminal
proceeding  that  is  pending  or  just  about to be brought."
Campbell v. Eastland, 307 F.2d 478, 487 (1962).   Some  courts
have  gone  so  far as to stay all discovery proceedings until
the criminal case  is  concluded.   United  States v. One 1964
Cadillac Coupe DeVille, 41 F.R.D. 352 (S.D.N.Y. 1966).

     In his response to Respondent's opposition to the renewed
objection to Mr. Finnie's  deposition,  the  Secretary  states
that  Mr. Finnie was scheduled to be deposed on June 19, 1995,
along  with   several   other   individuals,   and   that  the
"depositions of all the individuals could not be taken  due to
a  lack  of  time  and  not  the  refusal  of the Secretary to
cooperate."  (Sec. Resp. at 3.)  Another round  of depositions
was  apparently scheduled for the week of August 21,  but  Mr.
Finnie  was  not  among  those  scheduled.   On  September 14,
counsel for the Respondent advised that he desired to take Mr.
Finnie's  deposition on September 18 and 19.  It was  at  this
point that the Secretary raised his renewed objection.

     There does not appear to be any lack of cooperation or bad
faith on the part of the Secretary  in scheduling Mr. Finnie's
deposition.  Nor does there appear to  be  any  reason why the
Secretary  cannot renew his objection to the deposition  based
on  new information.   Further,  I  note  that  numerous  MSHA
officials  have already been deposed by the Respondent and the
Secretary has only renewed an objection to one individual.

     When the objection to taking Mr. Finnie's deposition was
denied  previously,  it  was  because  the  Secretary  had not
provided an adequate reason for not permitting the deposition.
This  time  he  has.   Mr.  Finnie  did  not  issue any of the
citations  in  the  cases  before  me and apparently  did  not
participate in the investigation leading  to  the  issuance of
the  citations.   He  is,  however,  heavily  involved in  the
criminal   investigation.    Therefore,   I   find  that   the
conjectural  possibility that he may be able to  provide  some
information on the citations in issue is far outweighed by the
harm that could  result to the criminal case if his deposition
is permitted

     Accordingly, I GRANT the Secretary's motion objecting to
the taking of Mr. Finnie's deposition and ORDER that he may not
be deposed until after the disposition of the criminal matters.
In view of this ruling, the Respondent's motion to dismiss is
DENIED.[2]

                         Motion to Compel

     Buck Creek requests that the Secretary be compelled to
provide:   (1)  "inspectors' notes prepared during Buck  Creek
inspections  in  which   no  citations  were  issued  by  that
inspector," (2) "eleven (11)  pages of conference worksheets,"
(3)   "twenty-five   (25)  memoranda   relating   to   special
investigations   and   potential    Section    110(c)    civil
knowing/willful violations" and (4) the investigative files in
eight  Section  110 cases.  In his response to the motion, the
Secretary states  that  the inspectors' notes were produced on
October 10, 1995, "except  those documents which relate to the
criminal investigation of Respondent."   With  respect  to the
remaining  documents,  the  Secretary  asserts  that they come
within  the "work-product privilege" set out in Rule  26(b)(3)
of the Federal Rules of Civil Procedure and that, in addition,
12 of the  25  memoranda and six of the eight Section 110 case
files relate to the criminal investigation.


**FOOTNOTES**

     [2]:  It appears that the deposition of  Mr. Music is
scheduled for October 26 and 27, 1995. The Secretary's claims
cannot be properly considered without an  inspection  of the
documents in question. Accordingly, counsel for the Secretary
is ORDERED to provide me with a copy of each contested  
document for my in camera consideration by November 3, 1995. 
After I have inspected the documents I will issue a ruling 
on the Respondent's motion to compel.


                              T. Todd Hodgdon
                              Administrative Law Judge


Distribution:

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Dept of 
Labor, 230 S. Dearborn  St., Chicago, IL 60604 
(Certified Mail)

Henry Chajet, Esq., Patton Boggs, L.L.P., 2550 M St., NW.,
Washington, DC  20037  (Certified Mail)

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