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[DOCID: f:wv9845o.wais]
EAGLE ENERGY, INC.
January 12, 1999
WEVA 98-45-R
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
January 12, 1999
EAGLE ENERGY, INC., : CONTEST PROCEEDING
Contestant :
v. : Docket No. WEVA 98-45-R
: Order No. 7171660; 1/22/98
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Mine No. 1
ADMINISTRATION (MSHA), : Mine ID 46-07711
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : A.C. No. 46-07711-036660
v. :
: Docket No. WEVA 98-69
EAGLE ENERGY INCORPORATED, : A.C. No. 46-07711-03666
Respondent :
: Mine No. 1
:
: Docket No. WEVA 98-81
: A.C. No. 46-07711-03670
:
: Mine No. 2
ORDER DENYING EAGLE ENERGY INCORPORATED'S
MOTION TO COMPEL DISCOVERY
Before me for consideration is Eagle Energy Incorporated's
(Eagle Energy's) December 15, 1998, Motion to Compel the
Secretary to produce the following:
1. Copies of the reports of the health and safety
conferences conducted by representatives of the Mine
Safety and Health Administration (MSHA) with Eagle
Energy company officials on October 7, 1997 (2 pages),
December 4 and 10, 1997 (5 pages), and February 26, 1998
(2 pages);
2. A copy of hand written notes by MSHA Supervisor Terry
Price regarding his November 5, 1997, meeting with Eagle
Energy company officials (1 page); and
3. A copy of a memorandum dated April 14, 1998, from
MSHA Conference and Litigation Representative Ira Lee
to the Secretary's counsel, Yoora Kim.
The Secretary filed an Opposition to Eagle Energy's motion
to compel on December 17, 1998, asserting the health and safety
conference reports as well as Price's notes of his November 5,
1997, meeting are protected by the work product and deliberative
process privileges. The Secretary's opposition also asserted the
April 14, 1998, memorandum from Lee to counsel was protected by
the attorney-client privilege. Eagle Energy replied to the
Secretary's opposition on December 31, 1998. In its reply, Eagle
Energy conceded the Lee memorandum was protected by the attorney-
client privilege. However, Eagle Energy asserts the health and
safety conference reports and Price's notes are not protected
because they were prepared during the normal course of business.
The Work Product Privilege
Commission Procedural Rule 56(b), 29 C.F. R. � 2700.56(b),
provides that parties may obtain discovery of any relevant
matter that is not privileged. The work-product privilege has
been codified in Rule 26(b)(3) of the Federal Rules of Civil
Procedure.[1] In ASARCO, Inc., 12 FMSHRC 2548 (December 1990),
the Commission discussed the work-product privilege, stating:
In order to be protected by this immunity under [Rule]
26(b)(3), the material sought in discovery must be:
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."
It is not required that the document be
prepared by or for an attorney. If materials
meet the tests set forth above, they are
subject to discovery "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." If the court
orders that the materials be produced because
the required showing has been made, the court
is then required to "protect against
disclosure of the mental impressions,
conclusions, opinions, or legal theories of
an attorney or other representative of a
party concerning the litigation."
Id. at 2558 (citations omitted). The burden of satisfying the
three-part test is on the party seeking to invoke the work-
product privilege, but once that party has met its burden, the
burden shifts to the party seeking disclosure to make a requisite
showing that there is substantial need and undue hardship to
overcome the privilege. P. & B Marina, Ltd. Partnership v.
Logrande, 136. F.R.D. 50, 57 (E.D.N.Y. 1991), aff'd, 983 F.2d
1047 (2d Cir. 1992).
It is clear that the conference notes and the notes prepared
by MSHA Supervisor Price are "tangible documents" prepared "by or
for the Secretary." The dispositive question concerning the
applicability of the work product privilege is whether these
documents were "prepared in anticipation of litigation or for
trial." Whether these documents are privileged because they were
prepared with litigation in mind must be based on the nature of
the documents and the factual situation in each particular case.
ASARCO, 12 FMSHRC at 2558. If the documents can fairly be said
to have been prepared because of the prospect of litigation, then
the documents are covered by the privilege. Id. [citing Wright &
Miller, Federal Practice and Procedure � 2024 p.198-99 (1970)]
If, on the other hand, litigation is contemplated but the
document was prepared in the ordinary course of business rather
than for the purposes of litigation, it is not protected. Id.
In addition, particular litigation must be contemplated at the
time the document is prepared in order for the document to be
protected. Id.
Eagle Energy argues the subject notes are not protected
because they were made in the ordinary course of business
regardless of whether litigation was contemplated. As asserted
by Eagle Energy, the question is whether MSHA reports of a safety
and health conference are routinely prepared in the ordinary
course of business without regard to whether litigation is
contemplated. In addressing this question, it is necessary to
analyze MSHA's procedures
for health and safety conferences contained in 30 C.F.R. � 100.6.
Operators that elect not to contest citations may decide not to
request a safety and health conference. Safety and health
conferences are only conducted, subject to MSHA's approval, upon
an operator's request.
30 C.F.R. �� 100.6(b) and (c). Such conferences are the means by
which operators may submit mitigating information including facts
that operators believe warrant a finding that no violation
occurred. 30 C.F.R. � 100.6(e). Citations that are not vacated
are referred by the safety and health conference official to the
Office of Assessments with the inspector's evaluation as a basis
for determining the appropriate amount of civil penalty to be
assessed. 30 C.F.R. �� 100.6(f)
and (g).
Thus, generally, only contested citations are the subjects
of safety and health conferences. Moreover, the MSHA official
conducting the conference uses the information submitted by the
operator as a basis for the referral to the Office of
Assessments. Upon receipt of a notice of proposed penalty issued
by the Office of Assessments, the operator has 30 days to pay or
contest the proposed penalty. 30 C.F.R. � 100.7(b). In essence,
the safety and health conference is the initial step in the
litigation process if the operator contests the proposed civil
penalty. Consequently, such conferences are not routinely
conducted, but rather, they are conducted when an operator
challenges the initial citation. Accordingly, the notes of such
conferences, including the notes of Supervisor Price, were
prepared in contemplation of litigation and, as such, are
protected by the work product privilege. Likewise, any notes
prepared by an operator's representatives during such conferences
are also protected.
Having concluded that the conference reports and notes are
protected, the analysis shifts to whether Eagle Energy can
overcome the privilege by demonstrating a substantial need for
the information, and establishing that it will suffer an undue
hardship if it must attempt to obtain the information by other
means. It is difficult for Eagle Energy to make such a showing
for summaries of meetings with MSHA conference officials and
Price that were attended by it own company representatives.
General assertions, as advanced by Eagle Energy, that the
protected material is needed to compare present recollections
against prior statements, or for general purposes of impeachment,
are not sufficient to overcome the work product privilege.
Consolidation Coal Company, 19 FMSHRC 1239, 1243-44 (July 1997).
Consequently, Eagle Energy has failed to overcome the privilege,
and its motion to compel the safety and health conference reports
and Supervisor Price's notes shall be denied.[2]
In the alternative, if Eagle Energy does not prevail in its
motion to compel, it requests in camera review of the subject
conference reports and Price's notes to determine if they
contain "purely factual materials" which are not protected. It
is inappropriate to request the trier of fact to review,
in camera, protected work product documents containing trial
strategy, opinions or other confidential information solely
on the basis of mere speculation that some severable,
purely factual material may exist. Rather, the proponent of the
in camera review must provide sufficient detail identifying the
nature and substance of the factual material sought to be
discovered.
Commission Rule 56(c) permits the Judge, upon his own motion
to limit discovery to prevent undue burden or delay. 29 C.F.R. �
2700.56(c). The discretion to order in camera review should be
used judiciously. The in camera review process must not be used
like a fishing expedition. Accordingly, absent a threshold
showing identifying the nature of the information sought to be
discovered, Eagle Energy's request for in camera review is
denied.
Attorney-Client Privilege
Eagle Energy, in its reply to the Secretary's opposition
to its motion to compel, concedes the April 14, 1998,
memorandum from MSHA Conference and Litigation
Representative Ira Lee to the Secretary's counsel, Yoora
Kim, is protected by the attorney-client privilege. (Reply,
pp. 16-17). Therefore, I construe Eagle Energy to have
withdrawn its motion to compel the Lee memorandum.
In view of the above Eagle Energy's Motion to Compel IS
DENIED.
Jerold Feldman
Administrative Law Judge
Distribution:
Julia K. Shreve, Esq., Jackson & Kelly, 1600 Laidley Tower,
P.O. Box 553, Charleston, WV 25322 (Certified Mail)
Yoora Kim, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd.,
Arlington, VA 22203 (Certified Mail)
/mh
**FOOTNOTES**
[1]:Commission Procedural Rule 1(b), incorporates the
Federal Rules of Civil Procedure, so far as practicable, on any
procedural question not regulated by the Mine Act, the
Commission's Procedural Rules, or the Administrative Procedure
Act. Rule 26(b)(3) of the Federal Rules of Civil Procedure
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 for that
other party's representative (including the other
party'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 mental impressions, conclusions,
opinions, or legal theories of an attorney or other
representative of a party concerning the litigation.
[2]: Having determined the conference reports and
Price's notes are protected by the work product
privilege, I need not address the Secretary's assertion
that they are also protected by the deliberative
process privilege. However, I note that deliberative
process in contemplation of hearing is protected under
the work product doctrine. See fn. 1 infra. The
distinction between these two privileges would be
blurred if all deliberations in anticipation of hearing
were also covered by the deliberative process
privilege. Rather, the Commission has defined the
deliberative process privilege as one which "attaches
to inter- and intra-agency communications that are part
of the deliberative process preceding the adoption and
promulgation of an agency policy." In re: Contests of
Respirable Dust Sample Alteration Citations, 14 FMSHRC
987, 992 (June 1992) [quoting Jordan v. United States
Dep't of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978)].
It has neither been alleged nor shown that the
conference or Price meeting concerned the formulation
of agency policy.