.
CONSOLIDATION COAL COMPANY
June 6, 1996
WEVA 93-146-B
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
June 6, 1996
CRETARY OF LABOR, : MASTER DOCKET WEVA 93-146-B
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Blacksville No. 1 Mine
Petitioner :
v. :
CONSOLIDATION COAL COMPANY, :
Respondent :
ORDER GRANTING IN PART AND DENYING IN PART CONSOLIDATION
COAL COMPANY'S MOTION TO COMPEL DISCOVERY
Background:
These civil penalty proceedings were filed by the Secretary
with this Commission on March 9, 1993, but were thereafter stayed
at the request of the Secretary because of a related criminal
investigation. By letter dated December 21, 1994, the Secretary
advised that the criminal investigation had been concluded and
that, while the basis for the stay was no longer applicable,
because of other significant litigation the attorneys for both
parties were involved in and, because of the extensive discovery
the parties anticipated in these proceedings, the parties were
seeking a further delay in trial scheduling.
The cases were subsequently scheduled for trial on August
15, 1995, but the parties again requested a continuance because
of the need for additional discovery and the "complex nature of
the issues involved". Hearings were accordingly rescheduled
to commence on October 31, 1995, in several of the related cases.
The instant cases are among those for which the parties requested
an additional continuance because of the severability of the
issues and limited availability of expert witnesses. Hearings
in the instant cases were then rescheduled to commence on
December 12, 1995.
Further continuances were necessitated by the disruption
caused by several budgetary shutdowns of the government.
Hearings were thereafter rescheduled to commence on March 5,
1996. However, on February 22, 1996, Consolidation Coal Company
(Consol) moved pursuant to Commission Rule 59, 29 C.F.R.
� 2700.59, for an order compelling discovery and it was
necessary to again postpone trial. Two of the four categories
of information requested in that motion remain at issue, i.e.
"all documents prepared by MSHA Investigator George Bowman
concerning the investigation of the Blacksville No. 1 Mine
explosion" and "all documents prepared, used or reviewed in
connection with the drafting of the `Internal Review of MSHA's
Actions at the Blacksville No. 1 Mine' report published on
August 17, 1993". (See Consolidation Coal Company's second
motion to compel discovery filed on May 10, 1996).
1. Documents prepared by Investigator Bowman:
Deputy Associate Solicitor Thomas Mascolino states in his
memorandum accompanying the Secretary's response to the Motion
to Compel Discovery that some of the documents prepared by
Investigator Bowman were being withheld from the Secretary at
the direction of the U.S. Attorney for the Northern District
of West Virginia pursuant to Rule 6(e) of the Federal Rules
of Criminal Procedure. The Secretary accordingly maintains
that those documents are not in his "possession, custody, or
control" and are not therefore within the scope of Rule 34 of
the Federal Rules of Civil Procedure. The Secretary further
notes that Consol may obtain those documents by filing an
appropriate motion under Fed.R. Crim. P.6(e)(3)(D) with the
Office of the United States Attorney for the Northern District
of West Virginia. The Secretary's position in this regard
is supported by law and is accordingly upheld.
The Secretary has also provided the undersigned with what
has been designated as all remaining documents prepared by MSHA
Investigator Bowman, for in-camera review of the Secretary's
claimed privilege under the work product rule. The documents,
five memoranda of interviews (and the notes of one interviewee),
contain only the reported statements of the interviewees and do
not contain any mental impressions, conclusions, opinions or
legal theories of an attorney or other representative of a party
concerning the litigation. The work product privilege has been
codified in the Federal Rules of Civil Procedure, Rule 26(b)(3),
which provides in relevant part:
. . . a party may obtain discovery of documents and tangible
things otherwise discoverable under subdivision (b)(1) of this
rule and prepared in anticipation of litigation or for trial by
or for another party or by or forthat other party's representative
(including the otherparty's attorney, consultant, surety,
indemnitor, insurer,or agent) only upon a showing that the party
seeking discovery has substantial need of the materials in the
preparation of the party's case and that the party is unable
without undue hardship to obtain the substantial equivalent of
the materials by other means. In ordering discovery of such
materials when the required showing has been made, the court
shall protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of an attorney or other
representative of a party concerning thelitigation.
The Commission has explained that the work product privilege
offers qualified immunity against discovery for materials that are:
1. documents and tangible things;
2. prepared in anticipation of litigation or for trial;and
3. by or for another party or by or for that party's
representative.
Secretary of Labor v. ASARCO, 12 FMSHRC 2548, 2558
(December 1990) (citing 8 C. Wright & A. Miller, Federal
Practice and Procedure � 2024, pp. 196-97 (1970); 6 J.
Moore, J. Lucas & G. Grotheer, Moore's Federal Practice
� 26.64 (2d ed. 1989)). The Secretary claims in this case
that the subject memoranda constitute (1) documents and
tangible things, (2) prepared in anticipation of litigation,
and (3) by or for another party or by or for that party's
representative. As noted, the subject memoranda may
nevertheless be subject to discovery "upon a showing that
the party seeking discovery has substantial need . . . and
that the party is unable without undue hardship to obtain
the substantial equivalent of the materials by other means."
Id. at 2558.
The Secretary claims that all of the interviewed individuals
provided testimony to the accident investigation team in the
presence of Consol's counsel and representatives. He notes
that Consol was therefore aware of these witnesses and could
have questioned or deposed each of them. The Secretary
further notes that two of the five individuals interviewed
by Bowman were management officials for Consol, i.e. Russell
DeBlossio and Van Wayne Pitman. The Secretary advises that
the work notes taken by DeBlossio, which were included with
investigator Bowman's memorandum, have been available to
Consol from the outset of the proceedings and the Secretary
would, in any event, produce a copy of those notes upon
request.
Finally, the Secretary notes that two of the remaining three
individuals interviewed by Bowman have been listed as trial
witnesses by the Secretary and that Consol has not taken
their depositions. He notes, moreover, that their initial
statements to the accident investigation team have already
been provided to Consol. In conclusion, the Secretary
argues that because Consol had been able to obtain the
substantial equivalent of these materials through other
means the files herein should be protected under the work
product rule and that Consol's request for production of
these documents should be quashed.
Consol argues on the other hand that the Bowman memoranda
of interviews should not, in any event, be protected because
they were not prepared "in anticipation of litigation" as
required by the work product rule. In Asarco, however, at
page 2559 the
Commission noted that a special investigator does not know
at the outset of his investigation whether charges will be
filed in that particular case but nevertheless the purpose
of his investigation may be deemed to be in anticipation of
litigation.
Consol maintains, in essence, that it has a substantial
need for the memoranda of interviews to compare present
recollections against prior statements and to ascertain
whether there are any contradictions in witness statements.
Clearly Consol could not make such a critical comparison
without the subject memoranda. Accordingly, whether or not
the work product privilege applies to the subject documents,
Consol has a substantial need for those documents and has no
other way of obtaining the precise information. The
Secretary is therefore directed to produce copies of the
subject documents to Consol within ten (10) days of this
order.
(2) The internal review files:
Consol further seeks in its motion to compel discovery "all
remaining documents prepared, used or reviewed in connection
with the drafting of the `Internal Review of MSHA's Actions
at the Blacksville No. 1 Mine' report published on August
17, 1993, which the Secretary has withheld from discovery."
According to Consol fifty-five files of documents from the
special investigation remain at issue for in-camera
evaluation of the Secretary's various claims of privilege.
These have been identified in the Secretary's "Vaughn" index
as File Numbers: 2(b), 4, 5, 8(b), 12(a), 14, 16(b), 20, 21,
24(a), 24(b), 29, 31, 33, 35, 37, 39, 63(a), 66, 67, 69(b),
70(b), 71, 74, 75, 76, 77, 79(b), 81(b), 88, 91(a), 91(b),
96(a), 96(b), 97, 103(b), 103(c), 103(j), 103(k), 103(m),
103(n), 103(o), 103(q), 103(r), 105, 106, 107, 109, and 110.
The framework for discovery before this Commission is
set forth in Commission Rule 56(b), 29 C.F.R. � 2700.56(b).
That rule provides 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." "Relevance" for purposes of my in-camera
examination of these documents in this discovery setting was
framed by Consol in its first motion to compel discovery and
in the following terms:
The Secretary apparently takes the position that the
interviews given by its two inspectors to the investigators,
as well as the interviews given by enforcement personnel in
District 3, are not in any way relevant to the allegations
in this matter. It is Consolidation's position that
the eye witness observations, impressions and actions
of the two inspectors are directly relevant to whether
a reasonable mining person would have recognized the
conditions which led to the Blacksville explosion. In
addition, other interviews documented confusion among
MSHA district enforcement personnel as to whether the
ventilation plan and other applicable regulations were
complied with both prior to and during the capping of
the production shaft.
The Secretary's 104(d) citations and orders in this
case allege either high negligence or reckless disregard
of the law by Consolidation. These are very serious
accusations, and it appears that the Secretary is trying
to shield his own employees from post-accident scrutiny,
while Consolidation's agents are being subjected to the
very worst sort of Monday morning quarterbacking. The
requested information is relevant to the ability of
Consolidation's employees to recognize hazards at the
production shaft and MSHA's own ventilation plan enforcement
practices that existed at the time of the explosion."
As the Secretary noted, however, at the hearing on Consol's
first motion to compel discovery held February 23, 1996, the
information providing the basis for Consol's request herein
was available to Consol when the MSHA internal review report
was issued on August 17, 1993. The Secretary further noted
at that hearing that Consol had accordingly waited over two
years before requesting the information now sought. Because
of the potential significance of the information, however, I
agreed to further delay trial in these proceedings to
resolve these limited pending discovery issues. Under the
circumstances and to prevent further undue delay consistent
with Commission Rule 56(c), I am strictly limiting the order
of production herein to only materials relating to the
interviews of MSHA enforcement personnel and specifically to
questions regarding compliance with ventilation plan and
other relevant regulations. Accordingly after examination
of the files from his internal investigation submitted by
the Secretary for in-camera review, I conclude that only
those portions of the documents within the Secretary's File
16(b) noted below will be included in the order for
production.
Document 16(b) is described in the Vaughn index as
"Interview questions and review team notes, including notes
on interviewee answers and on interviewer's impressions for
24 MSHA employees." It is noted that only the identifying
information on page one of each form questionnaire
(questions 1-6) and the following questions and answers are
relevant to the issues herein: page 3 (questions 2-6), pages
4 and 5, page 11 (questions 6-8), page 12 (question 6), page
25 and page 26 (questions 1-6).
In the most recent filing on this issue, on March 29, 1996,
the Secretary has taken the position that these documents
are protected only by the deliberative process privilege and
by "personal privacy". The deliberative process privilege
is a governmental privilege that has been recognized by the
Commission. In Re: Contents of Respirable Dust Sample
Alteration Citations 11 FMSHRC 987 (June 1992), and the
Courts, N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132
(1975); E.P.A. v. Mink, 410 U.S. 73 (1973). This privilege
protects documents "reflecting advisory opinions,
recommendations and deliberations comprising part of a
process by which governmental decisions and policies are
formulated." In Re: Contents of Respirable Dust Sample
Alteration Citations, 11 FMSHRC at 991, citing N.L.R.B. v.
Sears, 421 U.S. at 150 (1975).
While the responses by secretarial personnel to the form
questionnaire do appear to be "pre-decisional", I do not
find that the specific questions and answers at issue are
"deliberative", i.e. they are not related to the process by
which policies are formulated. In addition, the questions
and answers deal primarily with factual information rather
than advice, recommendations or opinions.
Moreover, to the extent that some of the answers
may be deemed to be "opinions", I do not find any to be
"deliberative" in the sense that they are related to the
process by which a policy is formulated. Accordingly I do
not find them subject to the deliberative process privilege.
In any event, since the noted questions and answers directly
relate to the issues at bar, including the "reasonably
prudent person" test, unwarrantable failure and negligence,
I conclude that Consol has a substantial need for that
information. I further find that Consol would be unable
without undue hardship (and without further delay in these
proceedings) to obtain the substantial equivalent of the
material by other means.
The Secretary's bald assertion of a "personal privacy"
privilege is unexplained and without reference to any legal
authority. There is no record evidence moreover that any of
the interviewees are claiming any such personal privilege.
Accordingly no such claim of privilege can be appropriately
evaluated and it is rejected.
ORDER
The Secretary is accordingly directed to produce for Consol
within ten (10) days of the date of this Order (a) copies of
the five memoranda of interviews within Investigator
Bowman's file, and (b) the noted questions and answers from
each of the identified form questionnaires associated with
the name of each interviewee from File 16(b) of the Secretary's
internal review files. The Secretary is further directed to
resume immediate custody of all of the documents submitted for
in-camera review and to segregate those documents for
preservation in the event of Commission or court review. In
light of this order the hearings on the motion to compel
discovery previously scheduled to commence on June 18, 1996,
are cancelled. Counsel for the Secretary is directed to
initiate a teleconference with all parties and the
undersigned at 10:00 a.m. on June 27, 1996, to establish a
new trial date for these proceedings.
Gary Melick
Administrative Law Judge
703-756-6261
Distribution:
Robert M. Vukas, Esq.,
Consol, Inc.,
1800 Washington Road,
Pittsburgh, PA 15241
(Certified Mail)
David J. Hardy, Esq.,
Jackson and Kelly,
P.O. Box 553,
Charleston, WV 25322
(Certified Mail)
Robert S. Wilson, Esq.,
Office of the Solicitor,
U.S. Dept. of Labor,
4015 Wilson Blvd., Room 516,
Arlington, VA 22203
(Certified Mail)
/jf