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[DOCID: f:wv9872o.wais]
EAGLE ENERGY, INC.
October 28, 1999
WEVA 98-72-R
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
October 28, 1999
EAGLE ENERGY, INC., : CONTEST PROCEEDINGS
Contestant :
:
v. : Docket No. WEVA 98-72-R
: Citation No. 7166391; 3/11/98
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. WEVA 98-73-R
ADMINISTRATION (MSHA), : Citation No. 7166392; 3/11/98
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 98-123
Petitioner : A.C. No. 46-07711-03674
:
v. :
: Mine No. 1
EAGLE ENERGY INCORPORATED, :
Respondent :
ORDER DENYING THE RESPONDENT'S MOTION
TO COMPEL DISCOVERY
AND
ORDER DENYING THE SECRETARY'S REQUEST FOR SUBPOENA
The initial phase of the hearing in these matters was
conducted from September 14 through September 17, 1999. The
hearing is scheduled to reconvene on December 7, 1999. Before me
for consideration is the respondent's motion to compel discovery
of the Mine Safety and Health Administration Health (MSHA) and
Safety Report concerning an April 21, 1998, meeting. The
attendees on behalf of MSHA were James Bowman, Conference and
Litigation Specialist, MSHA Inspector Thurman Workman and MSHA
Supervisory Inspector Terry Price. The respondent was
represented by then-counsel Donna Kelly. Also in attendance was
Jeff Bennett, the respondent's Safety Director, Glen Conner, the
respondent's President and Larry Ward, the respondent's General
Manager. The respondent also seeks to discover any statements
taken from individuals that will not be called by the Secretary
in these proceedings.
Pursuant to my request, the Secretary has provided the
relevant documents for my in camera review. The subject documents
consist of an April 21, 1998, conference report and memoranda of
MSHA interviews conducted between August and November 1998 with
individuals who are employees of the respondent.
A conference call concerning the respondent's motion to
compel and the Secretary's opposition was conducted on October
27, 1999. The Secretary asserts the respondent's motion should
be denied because it is untimely. In the alternative, the
Secretary contends the documents sought by the respondent are
protected by the work-product privilege and the informant's
privilege. If it is determined that the subject documents are
protected, the respondent seeks disclosure of portions of these
protected documents that contain factual material.
The Motion to Compel
As a threshold matter, Commission Rules 56 (d) and (e)
provide that discovery shall be initiated within 20 days after an
answer to a petition for assessment of civil penalty, and that
discovery shall be completed within 40 days of its initiation.
29 C.F.R. � 2700.56(d) and (e). These rules authorize a judge to
permit discovery after this date for good cause shown.
The respondent previously has sought to discover the April
21, 1998, conference report during the discovery period prior to
the start of the September 14, 1999, hearing. The Secretary
declined to provide the report at that time claiming it was
protected by the deliberative process and work-product
privileges. The respondent declined to file a motion to compel
discovery of the conference report at that time. The respondent
has failed to show the requisite good cause to support its
untimely motion. Accordingly, the respondent's motion to compel
the April 21, 1998, conference report shall be denied as
untimely.
Similarly, the respondent has failed to show good cause for
its untimely request for disclosure of statements the Secretary
may have obtained from individuals who will not be called by the
Secretary as witnesses. The respondent previously requested the
Secretary to disclose all relevant statements obtained by MSHA in
these matters during the discovery period prior to the beginning
of the trial. The Secretary declined to provide such statements
citing the informant's privilege. The respondent failed to seek
disclosure by filing a motion to compel. The respondent now
predicates its motion on the theory that statements taken by the
Secretary by individuals not called as the Secretary's witnesses
must contain information harmful to the Secretary's case. Such
an assertion does not provide good cause for extending the
discovery period. Accordingly, the respondent's motion to compel
such statements shall also be denied as untimely.
Assuming the respondent's motion to compel was not untimely,
the respondent's motion will be addressed on the merits because
arguments advanced by the respondent in support of its motion
during the October 27, 1999, conference call raise important
issues.
The Secretary claims the subject documents are protected by
the work-product privilege.
The work-product privilege has been codified in Rule 26(b)(3) of
the Federal Rules of Civil Procedure. 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. It is clear that
the conference report and memoranda of interviews conducted by
MSHA between August and November 1998 sought to be protected
under the work product privilege are "tangible documents"
prepared "by or for the Secretary."
The determinative 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.
In addressing whether MSHA reports of a safety and health
conference are prepared in contemplation of litigation, 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
includ-
ing 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. Such conferences are not routinely conducted, but
rather, they are conducted when an operator challenges the
initial citation. Accordingly, MSHA's internal reports of such
conferences are prepared in contemplation of litigation and, as
such, are protected by the work-product privilege.
Turning to the memoranda of interviews, these interviews
were conducted between August and November 1998, after the
respondent had contested the citations in issue. They contain
MSHA's recollections and analysis of information provided by the
interviewees, and, such memoranda were clearly prepared in
contem-
plation of litigation. As such, these memoranda are protected by
the work-product privilege. Having concluded they are protected
by the work-product privilege, I note parenthetically, that the
content of such interviews are also protected by the informant's
privilege as asserted by the Secretary.
I am concerned by the respondent's argument that, assuming
that documents are protected by privilege, factual material
within protected documents are not covered by the privilege and
must be disclosed. The respondent misses the point. Once the
Secretary has satisfied her burden that the subject documents are
protected by privilege, the burden shifts to the respondent to
overcome the privilege by demonstrating a substantial need for
the documents, and that failing to obtain the documents will
result
in undue hardship. 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). Thus, it is only after making such a showing to defeat the
privilege that a party is entitled to see portions of protected
documents with redactions 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." ASARCO, 12 FMSHRC at 2558 (citations omitted).
The respondent has failed to make any showing of need or
hardship. Significantly, the respondent's counsel, as well as
other company officials, attended the April 21, 1998, MSHA
conference meeting. The notion that hardship will ensue unless
the respondent obtains MSHA's notes of a meeting that the
respondent's counsel and company officials attended is difficult
to understand and must be rejected.
Similarly, the subject memoranda of interviews concern
information provided to MSHA by the respondent's employees. The
respondent could have informally interviewed its employees, or it
could have deposed them under subpoena during discovery. Thus,
the respondent has failed to demonstrate the substantial need
required to overcome the privilege.
Having failed to satisfy its burden of overcoming the
Secretary's privilege, the respondent is not entitled to see
redacted portions of privileged documents. Accordingly,
notwithstanding the untimeliness of the respondent's motion, the
respondent's motion to compel discovery is also denied on the
merits.
Collateral Issues
Finally, during the October 27, 1999, conference call, the
Secretary requested that I issue a subpoena so that the Secretary
could obtain the military discharge papers of an individual who
the respondent intends to call as an expert witness. The
Secretary seeks the subpoena to determine whether the deposition
testimony of this individual, with respect to his military
discharge in the 1970's, impacts on his credibility as an expert
witness in these proceedings.
Assuming for the sake of argument that this individual's
deposition testimony under oath was not candid, with rare
exceptions not applicable here, untruthful acts that have not
resulted in a conviction are deemed to be collateral in nature.
Extrinsic evidence of such acts are not admissible. See John W.
Strong et al., McCormick On Evidence, � 49, at 202 (5th ed.
1999); see also Fed R. Evid. 608(b). Consequently, the
Secretary's
subpoena request will be denied.
ORDER
In view of the above, the respondent's motion to compel
discovery IS DENIED.
The Secretary's request for subpoena IS ALSO DENIED.
Jerold Feldman
Administrative Law Judge
Distribution:
Howard Berliner, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
David Hardy, Esq., Julia Shreve, Esq., Jackson & Kelly, P.O. Box
553, Charleston, WV 25322 (Certified Mail)
/mh