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DURBIN COAL, INC.
September 15, 2000
WEVA 2000-31-D
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
September 15, 2000
SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 2000-31-D
ON BEHALF OF MICHAEL JENKINS : HOPE CD 99-10
AND MICHAEL MAHON, :
Complainants :
:
v. : Mine No. 1
: Mine ID 46-08102
DURBIN COAL, INC., :
Respondent :
ORDER DENYING, IN PART, AND GRANTING, IN PART,
THE SECRETARY'S MOTION TO DETERMINE SUFFICIENCY OF
RESPONSES TO REQUESTS FOR ADMISSIONS
AND TO COMPEL ANSWERS TO INTERROGATORIES
This case is before me on a complaint by the Secretary of
Labor on behalf of two miners, Michael Jenkins and Michael Mahon,
alleging that they had been discriminated against in violation of
Section 105(c)(1) of the Federal Mine Safety and Health Act of
1977, ("the Act"), 30 U.S.C. � 815(c)(1). The Secretary served
Requests for Admissions and Interrogatories on Respondent on
April 7, 2000. Dissatisfied with the responses, the Secretary
presented its concerns to Respondent by letter. Respondent replied
to the letter, submitted amended responses to three of the
requests and declined to supplement or amend its other responses.
The Secretary has moved to determine the sufficiency of Durbin
Coal's responses to twenty requests for admissions[1] and to
compel responses to six interrogatories. For the reasons set
forth below, the motion is granted in part and denied in part.
**FOOTNOTES**
[1] The Secretary included a discussion of three other
responses in her motion, but noted that Respondent had amended
those responses and does not seek relief as to them.
Requests for Admissions
Requests for admissions in Commission proceedings are
governed by Commission
Rule 58(b), 29 C.F.R. � 2700.58(b), and through � 2700.1(b),
Rule 36, Fed. R. Civ. Proc., which provides, in pertinent part:
* * * *
Each matter of which an admission is requested
shall be separately set forth. The matter is admitted
unless, within [25 days of service, unless the party
making the request agrees to a longer time][2] the
party to whom the request is directed serves upon the
party requesting the admission a written answer or
objection addressed to the matter, signed by the party
or by the party's attorney. If objection is made, the
reasons therefor shall be stated. The answer shall
specifically deny the matter or set forth in detail why
the answering party cannot truthfully admit or deny the
matter. A denial shall fairly meet the substance of
the requested admission, and when good faith requires
that a party qualify an answer or deny only a part of
the matter of which an admission is requested, the
party shall specify so much of it as is true and
qualify or deny the remainder. An answering party may
not give lack of information or knowledge as a reason
for failure to admit or deny unless the party states
that the party has made reasonable inquiry and that the
information known or readily obtainable by the party is
insufficient to enable the part y to admit or deny.
* * * *
The party who has requested the admissions may
move to determine the sufficiency of the answers or
objections. Unless the court determines that an
objection is justified, it shall order that an answer
be served. If the court determines that an answer does
not comply with the requirements of this rule, it may
order either that the matter is admitted or that an
amended answer be served. The court may, in lieu of
these orders, determine that final disposition of the
request be made at a pre-trial conference or at a
designated time prior to trial.
* * *
Proper use of requests for admissions can expedite and
streamline litigation by establishing matters not truly in
dispute and avoiding the expenditure of time and effort required
by other discovery devices. See gen., 7 Moore's Federal
Practice, � 36.02[1] (Matthew Bender 3d ed.). However, in order
to achieve that desired result both parties must fulfill their
obligations under the rule. "Parties may not view requests for
admissions as a mere procedural exercise requiring minimally
acceptable conduct. They should focus on the goal of the Rules,
full and efficient discovery, not evasion and word play."
Marchand v. Mercy Medical Center, 22 F.3d 933, 936 (9th Cir.
1994)(citations omitted).
Parties should endeavor to propound requests that are
"direct, simple and limited to singular relevant facts so that
[they] can be admitted or denied without explanation." Herrera
v. Scully, 143 F.R.D. 545, 549 (S.D.N.Y. 1992)(citations
omitted). "[I]t is entirely within the discretion of the court
as to what level of expression and detail should be tolerated for
each individual case." Diederich v. Dept. Of the Army, 132
F.R.D. 614, 619 (S.D.N.Y. 1990). Parties responding to requests,
as the rule specifically states, should exercise good faith by
admitting or denying parts of requests, and qualifying responses,
where appropriate, rather than noting blanket objections.
Where it is evident that multiple, interdependent
issues are contained in one request, defendant may deny
the entire statement if one fact, on which the
remainder of the request is premised, is denied;
plaintiff drafts complex requests at his peril.
Compound requests that are capable of separation into
distinct components and that follow a logical or
chronological order, however, should be denied or
admitted in sequence with appropriate designation or
qualification by defendant in its response.
Diederich, supra, 132 F.R.D. at 621.
As noted in the rule, the party propounding the requests may
file a motion challenging the sufficiency of responses. The
party opposing such a motion has the burden of persuasion to show
that objections to a request are warranted or that the answers
are sufficient. Moore's Federal Practice, supra, � 36.12[1]
Neither party has fulfilled its obligations here. As a
result, rather than expediting resolution of the issues,
considerable effort of both the parties and the judge has been
diverted to litigating discovery disputes spawned by poor
drafting of requests and responses that appear to be motivated
more by evasion than good faith.
The requests for admissions propounded to Respondent, at
least those addressed in the motion, suffer from two recurring
flaws that opened the door to uncomplimentary responses --
compound questions and inclusion of an element that was known to
be disputed. Some requests were compound and so far reaching
that sufficient responses were virtually impossible. Request
numbered 16, for example, reads:
Admit that Forest Newsome or other persons in mine
management had actual or constructive knowledge, at
some point in time between February 25, 1999 and March
3, 1999, that someone had written "Rat" on Complainant
Mahon's belt.
This request is addressed to the actual knowledge of a number of
persons as well as to information not directly known by them but
that was so widely known in their respective spheres of operation
that they could be legally charged with knowledge. It cannot,
even with the most charitable of constructions, be characterized
as "direct, simple and limited to a singular relevant fact."
Despite the unwieldy wording of the request, however, it
provided an opportunity for Respondent to exhibit good faith by
responding to those parts that were capable of succinct reply.
For example, it could have responded as to Forest Newsome's
actual knowledge and the actual knowledge of other specified
individuals in mine management, and objected to the more
ambiguous parts of the request. Respondent declined the
opportunity. It noted an objection to the compound nature of the
request and claimed such uncertainty as to its meaning that it
was unable to answer. It also added to its response the
following sentence: "To the extent that Durbin cannot respond to
this request, it should be deemed denied."
The extent of this qualified denial is unclear. On the one
hand, Durbin claims an inability to respond to the entire request
based upon lack of understanding. The denial could, therefore,
be viewed as applying to the entire request, a sufficient
response under the rule. However, the request must be fairly
read to address at least Forest Newsome's actual knowledge. By
its terms, the denial does not include parts of the request that
could or should have been understood.
Many of the requests included a reference to the alleged
termination of Complainants' employment, a fact that Durbin has
consistently denied.[3] This problem could have been avoided by
more thoughtful drafting of the requests, for example, by
referring instead to a date and time, or, an undisputed
description of the event, e.g. when complainants ceased working
at the mine. Respondent frequently objected to such requests,
even when the "termination" part was not interdependent on other
parts of the request.
Further problems with the parties' approach to discovery in
this case are evidenced by three requests as to jurisdictional
matters that are described in the motion, but which are no longer
part of this dispute. Illustrative is the Secretary's request
no. 7 which asked Durbin to:
Admit that during Complainant's employment at
Durbin, and at all relevant times herein, they were
miners as defined by Section 3(g) of the Federal Mine
Safety and Health Act of 1977 (hereinafter the "Mine
Act").
It is unclear why the Secretary propounded this request. In
its answer to the complaint Durbin had admitted "that
Complainants William Jenkins and Michael Mahon were employed at
Durbin's Mine No. 1 and that they were miners as defined in
� 3(g) of the Federal Mine Safety and Health Act of 1977 ("Act"),
30 U.S.C. � 802(g)."[4] Rather than simply admitting the
request, however, which Durbin later effectively did after an
exchange of correspondence with the Secretary, the following
response was made:
Durbin objects to this Request on the ground that it is
vague and ambiguous, and, therefore, unanswerable.
Durbin cannot ascertain from the phrase "at all
relevant times herein" the time period to which the
Secretary refers. In addition, the term "they" is
vague and undefined. Further, this request calls for a
legal conclusion. Durbin cannot, therefore, answer
this Request. To the extent that Durbin cannot respond
to this Request, it should be deemed denied.
It would take a more than charitable characterization to describe
this response in terms other than evasion and word play in
disregard of Respondent's obligations under the Rule.
The Secretary moves that the disputed requests be taken as
admitted. The Rule provides other, less drastic, and here more
appropriate alternatives i.e. directing that supplemental or
amended responses be filed, or deferring final resolution of
disputed responses until a later time in the litigation.
Durbin will be directed to submit amended responses to
requests numbered 3, 5, 18, 19, 30, 32, 33 and 34. Objections
noted to those requests are overruled. The responses were
evasive and insufficient. It may qualify its amended responses
as appropriate under the standards discussed above.
The motion as to requests numbered 15, 16, 17, 21, 22, 23,
24, 25, 26, 27, 28 and 29 is denied. Durbin's responses to those
requests were sufficient in that the objections noted are
sustained (requests numbered 16 and 17) or, despite objections
invalid at least in part, the answers were sufficient (Requests
numbered 22, 23, 27, 28 and 29). As to others, while objections
interposed cannot be sustained, particularly the objections as to
relevance, information responsive to the request has been
supplied either in the response itself or in binding responses to
other discovery requests (requests numbered 15, 21, 24, 25 and
26).
Interrogatories
The Secretary has moved to compel responses to six
interrogatories. The criticisms of the parties' approach to
discovery with respect to the requests for admissions are largely
applicable here, except that for the most part the questions are
better drafted and the precise wording of an interrogatory is not
nearly as critical as in the case of requests for admissions.
The Secretary's primary concern appears to be objections
interposed by Respondent. However, in many instances, Respondent
also provided an answer. The Secretary does not address the
propriety of the answers provided. The interrogatories,
objections and answers will not be discussed in detail.
Interrogatory numbered 1 requested the basis for any denial or
qualification of Respondent's responses to the Secretary's
requests for admissions. While the objections noted in response
to this inquiry are of questionable validity, the information
provided, as a whole was reasonably responsive. In light of the
disposition of the motion with respect to the requests for
admissions, the Secretary is entitled to no further relief and
the motion as to this interrogatory is denied.
Interrogatory numbered 5 requested information as to any
discipline that was or would have been imposed for legitimate,
non-discriminatory reasons. The interrogatory, fairly read,
refers to Complainants' alleged termination. Respondent
interposed multiple objections, none of which have merit, and
referred to other discovery responses. The Secretary complains
that "Respondent seeks to preserve the availability of this
defense while refusing to give the Secretary any meaningful
information about the facts that purportedly support such a
defense." Motion at p. 18. Respondent's objections are
overruled. However, the answer provided despite the objections
may well be complete. The Secretary has not presented any
evidence that there is additional information responsive to this
question that Respondent has refused to disclose. Respondent
will be bound by its answer, and the Secretary need not be
concerned about confronting new facts in support of any such
defense. If, in light of this disposition, Respondent determines
to amend or supplement its answer to this interrogatory it must
do so on or before September 29, 2000.
Interrogatory numbered 6 requested information regarding
communications about the subject matter of Complainants'
termination or disciplinary action. Respondent objected to the
question as "overbroad and burdensome" and referred to its other
discovery responses. Respondents' objections are not well
founded and are overruled. Again, however, there is no direct
evidence to indicate that the answer provided was incomplete,
though the question is not confined to communications that
occurred on March 2, 1999. The motion as to this interrogatory
will be granted. Respondent must disclose communications and
discussions known to it that occurred on March 2, 1999 and
thereafter, with the exception of privileged communications.
Interrogatory numbered 7 requested information regarding
disciplinary procedures in effect at the mine. Respondent
objected on numerous grounds and referred to other discovery
responses. The objections as to relevance, and overbreadth have
some merit because the request was not limited in time or to
procedures that might have been applicable to Complainants.
Respondent's objections are sustained, except as to disciplinary
procedures, written or de facto, applicable to Complainants from
March 2, 1998 through March 2, 1999 and any changes to those
procedures subsequent to the alleged terminations. Respondent
must answer the interrogatory as so limited. On or before
September 29, 2000, Respondent must supplement its answer or
certify that its original answer was complete.
**FOOTNOTES**
[2]: The inserted language is from Commission Rule 58(b).
[3]: Respondent's version of the events of March 2, 1999,
includes an explanation that Complainants specifically asked
whether they were fired, were told that they weren't, but that
they, nevertheless, left the job site and did not return. See,
Durbin Coal Inc.'s Response to the Secretary's First Set of
Interrogatories, interrogatory number 1.
[4]: Durbin Coal, Inc.'s Answer, � 2.
Interrogatory numbered 8 requested information as to
disciplinary actions taken against Complainants. Respondent
objected on numerous grounds and referred to other discovery
responses. Respondent's objections are overruled. On or before
September 29, 2000, Respondent must supplement its answer or
certify that its original answer was complete.
Interrogatory numbered 9 requested information about changes
in responsibilities and duties of Forest Newsome subsequent to
the alleged terminations. Respondent objected on grounds of
relevance and stated that the information could be "better
provided" by Mr. Newsome. Respondent also proceeded to describe
a change in Mr. Newsome's responsibilities. However, no
documents associated with the change were identified and there
was no reference to documents produced in discovery.
Respondent's objections are overruled. On or before September
29, 2000, Respondent must supplement its answer or certify that
its original answer was complete.
ORDER
The Secretary's motion is granted in part and denied in
part. As to requests for admissions numbered 15, 16, 17, 21, 22,
23, 24, 25, 26, 27, 28 and 29, and, as to interrogatory numbered
1, the motion is denied.
The motion is granted as to requests for admissions numbered
3, 5, 18, 19, 30, 32, 33 and 34. On or before September 29,
2000, Respondent shall submit amended responses to those
requests, complying fully with the requirements discussed above.
The motion is also granted as to interrogatories numbered 5, 6,
7, 8 and 9. On or before September 29, 2000, Respondent shall
supplement its answers to interrogatories numbered 6, 7, 8 and 9,
or certify that its original answers to those interrogatories
were complete.
Michael E. Zielinski
Administrative Law Judge
Distribution:
M. Yusuf M. Mohamed, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Suite 516, Arlington, VA
22203 (Certified Mail and Facsimile Transmittal)
David J. Farber, Esq., Alexandra V. Butler, Esq., Patton Boggs,
LLP, 2550 M Street, NW, Washington, D.C. 20037 (Certified Mail
and Facsimile Transmittal)
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