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[DOCID: f:pn99137o.wais]
KEYSTONE CEMENT COMPANY
February 7, 2000
PENN 99-137-RM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
February 7, 2000
KEYSTONE CEMENT COMPANY, : CONTEST PROCEEDINGS
Contestant :
v. : Docket No. PENN 99-137-RM
: Citation No.4439698; 2/9/99
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. PENN 99-138-RM
ADMINISTRATION, (MSHA), : Order No. 4439699; 2/9/99
Respondent :
: Keystone Cement
: Mine ID No. 36-00125
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. PENN 2000-29-M
Petitioner : A.C. No. 36-00125-05571
v. :
:
KEYSTONE CEMENT COMPANY, :
Respondent : Keystone Cement Co.
ORDER DENYING MOTION TO COMPEL
During the course of discovery the Secretary has revealed to
Keystone Cement Company (Keystone) the names of all of her
potential witnesses and has produced the notes of interviews that
have been conducted, redacting in each case however the identity
of each interviewee asserting, inter alia, the government
informant's privilege. Keystone seeks, by motion to compel, the
disclosure of the identity of each interviewee and identification
with his corresponding statement.
The informant's privilege is the well-established right of
the government to withhold from disclosure the identity of any
person who provides information about violations of the law to
law enforcement officials. Roviaro v. U.S., 353 U.S. 53 (1957);
Secretary v. Bright Coal Co., Inc., 6 FMSHRC 2520 (November
1984). The purpose of the privilege is two-fold: to protect the
public interest, by maintaining a free flow of information to the
government concerning possible violations of the law, and to
protect persons supplying that information from retaliation.
Bright, 6 FMSHRC at 2522-2523 (quoting Roviaro, 353 U.S. at 59).
Keystone argues that by revealing the names of all her
potential witnesses, the Secretary has in fact waived the
informer's privilege. While it is true that the informer's
privilege technically extends only to the identity of an informer
and not to a known informer's statement Keystone does not yet
know whether the persons identified as witnesses are "informants"
per se. This is because Keystone does not know whether any of
these witnesses spoke disparagingly or in an incriminating manner
about Keystone or others and are thus in need of the protection
afforded by the informant's privilege. This distinction was
noted in Martin v. Albany Business Journal Inc., 780 F.Supp. 927
(N.D.N.Y. 1992), citing Hodgson v. Charles Martin Inspectors of
Petroleum, Inc., 459 F.2d 303 at 306 (5th Cir. 1972):
Knowing the identity of persons who have given
statements to the Secretary is not equivalent to
knowledge of which of those persons were informers
within the context of the privilege. Only when the
content of the statement is disclosed will it be
revealed whether the information was given reluctantly
or voluntarily, whether the tone and manner in which it
was given was friendly to the defendant or unfriendly,
and whether it was accusatory or favorably. In short,
if the employee is not known to the defendant as an
informer but merely as a statement giver, then
disclosure of the statement might reveal him as an
informer. 459 F.2d at 306.
As the court noted in the Martin case, disclosure of the
identity of the statement givers in association with their
statements would reveal for the first time whether any of those
witnesses were "informers," i.e., speakers who implicated as
opposed to mere "statement givers." As that court stated, such a
disclosure would defeat the very purpose of the informant's
privilege. Since Keystone does not know which of the witnesses
were "informers" as that term relates to the informer's privilege
there has been no waiver of the informer's privilege as to their
identification with particular statements.
Keystone argues that the privilege is, in any event,
qualified and must yield where disclosure is essential to the
fair determination of a case. Bright, 6 FMSHRC at 2523 (quoting
Roviaro, 353 U.S. at 60-61). The burden of proving facts
necessary to show that the information sought is essential to a
fair determination rests however with the party seeking
disclosure. Secretary v. Asarco, Inc., 12 FMSHRC 2548, 2555
(December 1990) (quoting Bright, 6 FMSHRC at 2526). In Asarco,
the Commission reiterated its holding in Bright, stating that the
informant's privilege is "well-established, but qualified," and
that it is "applicable to the furnishing of information to
government officials concerning possible violations of the Mine
Act." Asarco, 12 FMSHRC at 2553.
The privilege is overcome only by a showing that the
opposing party's need for the information outweighs the
government's need to maintain the privilege to protect the public
interest. Bright, 6 FMSHRC at 2526. Therefore, the opposing
party must demonstrate special circumstances or a substantial
need for the information sought. Factors to be considered in
determining whether the information sought is essential to a fair
determination include: (a) whether the Secretary is in sole
control of the requested material; (b) whether the material
sought is already within the control of the party seeking it; and
(c) whether that party had other avenues available from which to
obtain the substantial equivalent of the requested material.
Bright, 6 FMSHRC at 2526.
In this regard Keystone makes the following representations:
In this case, Keystone will be unable to depose
several key eyewitnesses to the case, the former
Murray's Contracting employees, without knowing which
employees gave which statements to MSHA. Simply put,
this information is critical which eyewitnesses saw
which events at the time of the accident [citation
ommitted]. Keystone does not have alternative means of
obtaining the same information-the Murray's Contracting
employees were the only witnesses to the events.
Moreover, Murray's Contracting has ceased operations
and its employees may not be accessible to Keystone as
trial witnesses. Given that those individuals'
recollections may be offered at trial by MSHA as
hearsay testimony, it is all the more critical for
Keystone to be able to evaluate the nature of such
initial statement. Therefore, even if, arguendo, a
legitimate claim for privilege existed, Petitioner's
need for this information outweighs the Secretary's
need to protect it.
I find Keystone's claims to be overstated. Keystone has been
provided the identities of all witnesses including the former
Murray Contracting employees and is free to interview and/or
depose those persons. In addition, the witnesses are subject to
the court's jurisdiction by subpoena so that Keystone's claims
that certain persons may not be accessible as trial witnesses is
without substance. Finally, since Keystone has in its possession
all of the statements that have taken from the "informants," and
states that it will be deposing the MSHA inspectors, it now has or
will have available what may be anticipated at trial as hearsay
testimony. Keystone may explore those statements in any event
during interviews of the named witnesses. Under the circumstances
I do not find that such circumstances exist as would warrant the
disclosure of the privileged information.
If, during trial, Respondent can demonstrate prejudice by the
failure to have had the information now sought, an appropriate
request for continuance would be considered by the trial judge at
that time.
ORDER
The Respondent's Motion to Compel is denied.
Gary Melick
Administrative Law Judge
703-756-6261
Distribution: (Via Facsimile and Certified Mail)
David Farber, Esq., Patton Boggs, LLP, 2550 M Street, N.W.,
Washington, D.C. 20037
Gayle M. Green, Esq., Office of the Solicitor, U.S. Dept. of
Labor, Gateway Building,
Room 14480, Philadelphia, PA 19104
/mca