<DOC>
[DOCID: f:s20001o.wais]

 
STERLING VENTURES, LLC, and CHRIS PULLIAN
February 11, 2000
S. 2000-1


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 1730 K. Street, N.W., 6th Floor

                     Washington, D.C. 20006


                        February 11, 2000

SECRETARY OF LABOR,              : SPECIAL PROCEEDING
     MINE SAFETY AND HEALTH      :
     ADMINISTRATION (MSHA),      :
               Petitioner        : Docket No. S. 2000-1
             v.                  :
                                 :
STERLING VENTURES, LLC,          :
     and CHRIS PULLIAN           :
               Adverse Parties   :

          ORDER GRANTING MOTION TO PERPETUATE TESTIMONY

     Counsel for the Secretary is seeking an order granting her
the right to take the testimony of Placido (Carlos) Lino, an
employee of Sterling Ventures, LLC d/b/a/ Sterling Materials
(Sterling). The testimony relates to circumstances surrounding 
a fatal accident that allegedly occurred at Sterling's mine on
December 21, 1999.  The accident took the life of a miner who 
was working with Lino. According to the Secretary, Lino and the
victim were shoveling spilled material onto a conveyor belt, 
Lino was called away for a few moments, and the victim was 
pulled into the belt's tail pulley.

     The Secretary investigated the accident and interviewed
Lino, who is a citizen of Mexico. The Secretary issued citations
and an order to Sterling.  She also interviewed Lino's and the
victim's foreman, Chris Pulliam. According to Pulliam's counsel,
during the course of the interview representatives of the
Secretary candidly advised Pulliam he might be subject to
proceedings brought by the Secretary under section 110(c) of 
the Act for knowing violations of mandatory safety standards.

     Sterling did not challenge the validity of the citations 
and the order, and the Secretary has yet to initiate a penalty
proceeding against Sterling or Pulliam.  Nevertheless, because
she believes that "Lino may return to Mexico at any time and most
likely will be outside of the subpoena power of the Commission
before any discovery can be commenced in any anticipated
litigation", the Secretary requests that she be permitted to
depose Lino as soon as possible and prior to the initiation of
any proceeding (Sec. Mem. at 6).


     The Secretary's request was received on February 1, 2000.
Because it did not initiate a proceeding nor relate to one that
was pending, it was assigned a special docket number (Docket No.
S 2000-1).  Counsels then were contacted by telephone.  Counsel
for Pulliam was not  available, but counsel for Sterling stated
that he would file a response and that he would consult with
counsel for Pulliam about whether he (counsel for Pullian) would
file one as well.

     Today, February 11, 2000, at 10:30 a.m., counsel for the
Secretary advised me via a conferenced telephone call that
certain "developments" necessitated an expeditious ruling.
Counsel for Sterling added that the company discovered that
Lino's Social Security number did not "match" his name and that
information Lino filed with the Immigration and Naturalization
Service did not appear to be accurate.  Counsel for Sterling
stated that the company was required to advise Lino of this, to
suspend him from employment, and to give him time to correct 
or supplement his records.  Counsel for the Secretary voiced 
concern that upon being suspended Lino might immediately leave 
either the country or the jurisdiction.

     I asked counsels for Sterling and Pulliam to file by
facsimile copy and as expeditiously as possible responses to 
the Secretary's request.  Counsels and I agreed to talk again 
in an hour, at which time I would rule orally on the request 
and following which I would issue a written ruling.

     Counsel for Sterling's response was received. In it counsel
opposed the Secretary's request.  Counsel for Pulliam's written
response was not received prior to the 11:30 a.m. follow-up
conversation, but in the conversation counsel for Pulliam orally
stated his opposition to the request and expressed his concerns
should the request be granted.[1]

     Counsels for Sterling and Pulliam believe that I am without
jurisdiction to order the deposition because no "proceeding" is
pending before the Commission.  They maintain section 113(d)(1)
and 113(d)(2) of the Act (30 U.S.C. �823(d)(1) and �823(d)(2))
when read together  confine the Commission's authority to
"proceedings instituted before the Commission" (Response of
Sterling 1-2), and they argue that there is no provision in the
Commission's rules for the imposition of an order prior to the
institution of a proceeding.

     Counsel for the Secretary notes that Commission Rule 1(b)
(29 C.F.R. �2700.1(b)) requires the Commission and its judges 
to be "guided" by the Federal Rules of Civil Procedure on any
procedural question not regulated by the Act, and she argues 
that although the order she seeks is not provided for by the
Commission's rules, it is allowed by Rule 27 of the Federal 
Rules (Sec.'s Mem. 2-6).

     As I orally explained to counsels, I agree with the
Secretary.  While it is true the Commission's rules state they
are applicable to "proceedings before the . . . Commission" (29
C.F.R. �2700.1(a)), they also state that they must be "construed
to secure . . . just determination[s]" (29 C.F.R. �2700.1(c)).
The situation before me is extraordinary, and a just
determination well may be thwarted if the Secretary is not
afforded the opportunity to prevent Lino's testimony from being
lost.  Federal Rule 27 provides a means for doing just that by
allowing for the perpetuation of testimony in "any matter that
may be cognizable".  Guided by Rule 27, I conclude these
principles can be applied in an unusual situation such as this
where a matter presently is not able to be brought before the
Commission.

     Under Rule 27, the unique nature of the right to depose 
a person before an action begins requires the moving party to 
meet five demanding conditions, all of which the Secretary
successfully has established (See Sec's Mem. 2-3).[2]
Accordingly, I conclude the Secretary's petition should be and 
is GRANTED.

                         ORDER

     Therefore, it is ORDERED that the Secretary be allowed to
depose Lino regarding the dates of his employment at Sterling,
the nature and extent of his duties, his knowledge of his and 
of other miners' training while employed, his knowledge of the
events and conditions surrounding the alleged accident of
December 21, 1999, and any supplementary matters necessary for
establishing such facts.

     In issuing this order I note the concern of counsels for
Sterling and Pulium that prior to the deposition they be 
afforded copies of notes in the Secretary's possession regarding 
the Secretary's interview(s) with Lino and copies of any other
records that may bear upon the content of the interview(s). They
stated that such information is necessary if due process is to be
afforded their clients. The problem was discussed with counsel
for the Secretary, and she has  agreed to provide such copies,
reserving her right(s) of privilege.

     Further, I note that counsel for the Secretary requested and
counsel for Sterling orally agreed to advise Lino that he can
expect to be served with a subpoena and to be deposed regarding
the subject accident.


                                 David Barbour
                                 Chief Administrative Law Judge


Distribution:

Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215-2862 (Via Fax and Certified Mail)

Marcus P. McGraw, Esq., Greenbaum, Doll & McDonald, 333 West Vine
Street, Suite 400, Lexington, KY 40507 (Via Fax and Certified
Mail)

Billy R. Shelton, Esq., Baird, Baird, Baird & Jones, P.S.C., 841
Corporate Drive, Suite 101, Lexington, KY 40503 (Via Fax and
Certified Mail)


**FOOTNOTES**

     [1] Counsel  for  Pullium's response was received following
the conversation.

     [2]
          1.)  The petitioner  must  show it expects to be a
     party to an action but is presently  unable to bring it
     or cause it to be brought;
          2.)  The petitioner must state the  subject matter
     of the expected action;
          3.)  The petitioner must state the facts which the
     petitioner   desires   to  establish  by  the  proposed
     testimony and the reasons for perpetuating it;
          4.)  The petitioner  must  name  or  describe  the
     person the petitioner expects will be the adverse party
     and must give  the  address  of the person so far as is
     known; and
          5.)   The  petitioner  must  state  the  name  and
     address of the person to be examined  and the substance
     of  the  testimony  the  petitioner  believes  will  be
     elicited (See Fed. R. Civ. P 27(a)(1)).