<DOC>
[DOCID: f:wv200031o3.wais]
DURBIN COAL, INC.
September 22, 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 22, 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 : Mine No. 1
v. : Mine ID 46-08102
:
DURBIN COAL, INC., :
Respondent :
SUPPLEMENTAL ORDER
DENYING RESPONDENT'S MOTION TO COMPEL
By Order dated September 6, 2000, Respondent's motion to
compel production of documents was denied, in part. The
Secretary was ordered to produce, for in camera inspection, four
witness statements and any similar portions of the special
investigator's notes. Review of those materials in camera was
determined to be the most efficient means of determining whether
Respondent had a substantial need for the documents and would be
unable to obtain the substantial equivalent of them without undue
hardship.
The Secretary was directed to submit the documents by
September 13, 2000. An extension of that deadline, to September
20, 2000, was requested, without opposition by Respondent. On
that date, the Secretary advised that an "unforseen staff
shortage" would delay submission of the documents until the
following day. The documents were hand delivered on September
21, 2000, along with a "Response" to the order consisting of
further argument on the substantial need - undue hardship
issues.[1] The Secretary did not request leave to submit further
argument on these issues and further argument was not
contemplated in the Order. I have not considered the Secretary's
further argument.
**FOOTNOTES**
[1] While the Secretary's response to the Order (without
enclosures, of course) was hand delivered to the Commission, it
was mailed to counsel for Respondent. On the morning of
September 22, 2000, counsel for the Secretary was, by phone,
directed to transmit a copy of the response to Respondent by
facsimile.
The documents submitted consist of four witness statements,
three of which were properly identified on the privilege log.
The fourth statement, however, is a statement by Franklin Runyon,
which is already in Respondent's possession and does not match
any of the descriptions of the four witness statements on the
log.[2] Also submitted is a document identified on the privilege
log as a "memo to file", dated March 10, 1999. It reflects the
substance of a conversation that the investigator had with a
witness, wherein the witness described a phone conversation with
an individual in mine management. No other materials were
identified as responsive to the Order.[3]
None of the documents submitted match the description of the
forth witness statement identified on the privilege log as being
dated March 5, 1999. Upon inquiry, Complainant's counsel advised
that there is no such statement in the file and speculated that
the statement of Franklin Runyon may have been erroneously
described on the log. Counsel expressed an intent to submit a
corrected privilege log and confirmed that no privilege is
asserted with respect to the Runyon statement.
As noted in the Order, I determined to review the documents
in camera because it was possible that they might "contain
information so contemporaneous with occurrences critical to the
issues in this case, that Respondent would have substantial need
of it to prepare its defense and could not duplicate it through
other means, e.g. interviews or depositions of persons
identified as having relevant knowledge or information." It was
also observed that the facts of this case suggested that the
presence of such information was unlikely.
A review of the documents has established that they do not
contain information so contemporaneous with critical events that
Respondent could have a substantial need for the documents in
preparation of its case. None of the individuals witnessed the
"search" incident or the discussion with the Complainant's that
followed. There is also no reason to believe that Respondent
could not obtain the equivalent of the information contained in
the statements by other means. The individuals have been
identified as persons with knowledge of relevant facts and are,
presumably, available for interview or deposition. There is no
reason to believe that they would not disclose all relevant
information known to them. In any event, Respondent has not
established that any person with knowledge of relevant facts is
unavailable or has claimed such failed recollection that relevant
information is effectively unavailable to it. See, Varuzza by
Zarrillo v. Bulk Materials, Inc., 169 F.R.D. 254 (N.D.N.Y. 1996);
Ehrlich v. Howe, 848 F. Supp. 482, 492-94 (S.D.N.Y. 1994).
Conclusion and Order
Respondent's motion to compel is denied as to the witness
statements and memorandum. The materials submitted by the
Secretary will be filed under seal, and will be available in the
event they are needed for further review.
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)
/mh
**FOOTNOTES**
[2] Handwritten versions of the witness statements, as
initially taken by the investigator, were also produced.
[3] Copies of the materials with proposed redactions were
also submitted. The disposition of the motion makes it
unnecessary to review the propriety of the proposed redactions.