St. Lawrence Food Corp., d/b/a Primo Foods

Plain-English summary

The judge ordered OSHA to disclose internal documents exchanged between compliance officers and the Solicitor's attorney, then dismissed the citations when OSHA refused. The Commission held that the communications were protected by the attorney-client privilege because they were confidential exchanges seeking or providing legal assistance. It also held that all eight documents were protected work product prepared for the litigation, including two trial plans entitled to especially strong protection. Because OSHA had a substantial legal basis for withholding the documents, its conduct was not contumacious, and the employer was not prejudiced. The Commission set aside the dismissal sanction and remanded the citation cases for further proceedings.

Decision snapshot

• Cited standard(s): None identified in the decision.
• Outcome: The dismissal of both citation cases was reversed, and the matters were remanded for further proceedings.
• Key point: Dismissal is too harsh for noncompliance with a discovery order when the resisting party has a substantial privilege claim and the opponent suffers no prejudice.

Full text (OSHRC public release)

ST. Lawrence Food Corp.,d/b/a Primo Foods., Docket No. 04-1734 & 04-1734

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket Nos. 04-1734 and                                    04-1735

ST. LAWRENCE FOOD CORP.,

d/b/a PRIMO FOODS,

Respondent.

APPEARANCES:

Michael P. Doyle, Attorney; Charles F. James, Counsel for Appellate Litigation; Joseph M.
Woodward, Associate Solicitor; Howard M. Radzely, Solicitor; Department of Labor,
Washington, DC

For the Complainant

David P. Antonucci, Esq.; Antonucci Law Office, Watertown, NY

For the Respondent

DECISION

Before: RAILTON, Chairman, and ROGERS, Commissioner.

BY THE COMMISSION:

Before the Commission is an order of Administrative Law Judge G. Marvin Bober
dismissing citations issued to the St. Lawrence Food Corporation (St. Lawrence) for the
Secretary of Labor’s (Secretary) failure to comply with the judge’s discovery orders. The
orders in question directed the Secretary to provide St. Lawrence with written documents
that the Secretary claimed were protected from disclosure by either the attorney-client
privilege or the work product doctrine. The judge concluded that the Secretary had not
shown that the documents were protected by either of these exceptions to disclosure and
that her continued refusal to provide St. Lawrence with discoverable materials warranted
dismissal. We reverse. We find that the judge erred in rejecting the Secretary’s claims
that the documents were protected, and he erred by dismissing the citations. We set aside
the sanction imposed by the judge and remand for further proceedings.

Facts

The facts giving rise to this opinion stem from a discovery dispute that began
during a pretrial deposition by St. Lawrence’s attorney on August 23, 2005. The
Secretary’s attorney objected to certain questions asked of two Occupational Safety and
Health Administration (OSHA) compliance officers regarding communications with their
supervisors. She asserted the deliberative process privilege and instructed the deponents
not to answer the questions. On August 29, 2005, St. Lawrence filed a motion with the
judge requesting that he compel the deponents “to appear again for further depositions
and . . . answer questions regarding their opinions and the internal actions of OSHA.”
The Secretary opposed St. Lawrence’s motion, again raising the deliberative process
privilege.

On September 29, 2005, the judge issued an order mischaracterizing St. Lawrence’s motion and
granting alternative relief.

Instead of ordering the compliance officers to appear again
for depositions and answer St. Lawrence’s questions, the judge granted St. Lawrence’s
motion as follows:

[T]he Respondent’s request for the government employee witnesses’
written advisory opinions, recommendations and deliberations, fact
materials, factual findings and recommendations, materials related to the
explanation, interpretation or application of an existing policy or materials
written after the Citations and Notification of Penalties that were issued on
September 10, 2004 . . . is granted.

(Emphasis added.) The judge ordered the Secretary to provide the written documents to
St. Lawrence within ten working days.

The Secretary submitted a Motion for Reconsideration on October 6, 2005. She
pointed out that St. Lawrence had not requested written materials and argued that, to the
extent the judge was sua sponte directing the Secretary to produce written documents, the
documents were protected from disclosure by the work product and attorney-client
privileges.

The judge issued an initial Order on Motion for Reconsideration on October 11,
2005, and a Corrected Order on Motion for Reconsideration on October 20, 2005, in
which he rejected the Secretary’s privilege claims. The judge found that “labeling” the
documents privileged on the basis of the attorney-client and work product claims made
for them was “simply self-serving” and did not prove the materials were prepared in
anticipation of litigation or for trial.

The next day, October 21, 2005, the Secretary submitted a Second Motion for
Reconsideration and Motion for a Protective Order, which included an affidavit signed by
the Solicitor’s attorney. The Secretary identified the following eight documents as
covered by the judge’s order:

1. a three-page memorandum prepared by the staff attorney asking questions of the
   compliance officer to assist her in analyzing the citation items and understanding
   the case file;

2. a one-page e-mail from the compliance officer to the staff attorney explaining
   aspects of the lockout/tagout standard;

3. a single page of e-mail correspondence between the staff attorney and the
   compliance officer discussing alternative theories of citation;

4. a one-page memorandum prepared by the compliance officer to assist the attorney
   in the preparation of answers to interrogatories;

5. a one-page e-mail from the compliance officer to the staff attorney suggesting
   questions to be asked of respondent’s officials at their depositions;

6. an eleven-page trial plan prepared by counsel for all health citation items setting
   forth the proof for each item and strategic considerations identifying strengths and
   weaknesses, which was shared with the compliance officer for discussion and
   comment;

7. a twenty-four page trial plan prepared by counsel for all safety citation items
   setting forth the proof for each item and strategic considerations identifying
   strengths and weaknesses, which was shared with the compliance officer for
   discussion and comment;

8. a four-page memo prepared by the compliance officer at the request of counsel to
   assist her in trial preparation by summarizing proof of certain elements of the case
   and referring, inter alia , to confidential informants.

The Secretary argued that all eight documents are protected from discovery by either the
work product doctrine or the attorney-client privilege, and she requested that the judge
issue a protective order precluding discovery of those documents. The Secretary dropped
her deliberative process claim, which she had raised with respect to a ninth document.

On October 25, 2005, the judge issued an order denying the Secretary’s motion.
The judge concluded that the Secretary had not established the confidentiality of the
documents in question because she failed to state “that the documents were not provided
to a third party or parties[,] or a third party or parties have not had access to the
documents.” That same day the Secretary filed a motion asking the judge to stay his
order pending interlocutory review by the Commission. The following day, October 26,
2005, the judge issued two orders: (1) an order denying the Motion for Stay, and (2) an
Order to Show Cause why “the Secretary should not be declared to be in default and the
Citations . . . dismissed.” In denying the Motion for Stay, the judge found that the
Secretary’s motion lacked substantive support because it failed to explain why she had
not provided him with copies of the documents or with a “Vaughn Index.”

On October 31, 2005, the Secretary filed a petition for interlocutory review with
the Commission. She also responded to the judge’s Order to Show Cause by arguing that
dismissal would be an improper sanction where she was following the proper procedures
in asserting that the work product and attorney-client privileges exempted the documents
from disclosure.

On November 14, 2005, the judge issued a Decision and Order dismissing the
citations and thus rendered moot the Petition for Interlocutory Review that was pending
before the Commission. The Secretary filed her Petition for Discretionary Review on
December 5, 2005.

Discussion

A party raising a claim of privilege in Commission proceedings must initially “specify the privilege
claimed and the general nature of the material for which the privilege is claimed.”

Commission Rule 52(d), 29 C.F.R. § 2200.52(d).

In response to a judge’s order, or if the
opposing party has filed a motion to compel, the privilege-seeking party must provide
greater detail: “Identify the information that would be disclosed; set forth the privilege
that is claimed; and allege the facts showing that the information is privileged.” Id. This
claim must be supported by affidavits, depositions, or testimony and shall specify the
relief sought. Id. We first consider the Secretary’s claim that the documents were
covered by the attorney-client privilege.

I. Attorney-Client Privilege

“The attorney-client privilege is one of the oldest recognized privileges for confidential
communication. The privilege is intended to encourage ‘full and frank communications
between attorneys and their clients and thereby promote broader public interests in the
observance of law and the administration of justice.’” Swidler & Berlin v. United States ,
524 U.S. 399, 403 (1998) (citations omitted). The privilege protects from disclosure
confidential communications from a client to an attorney made in order to obtain legal
assistance. Fisher v. United States , 425 U.S. 391, 403 (1976). The attorney-client
privilege also protects communications from the attorney to the client when the attorney’s
communication discloses confidential information received from the client. Schefler v.
United States , 702 F.2d 233, 245 (D.C. Cir. 1983). The privilege applies regardless of
whether the client is a business, individual or government agency. See United States v.
Doe (In re Grand Jury Investigation) , 399 F.3d 527, 534 (2d Cir. 2005).

In this case, the judge unquestionably erred in finding that the Secretary failed to properly establish
the attorney-client privilege. The Secretary’s affidavit makes abundantly clear that all of
the documents for which she is claiming the privilege contain communications between
the Solicitor’s attorney and the compliance officers. Five of the documents—numbers
(1), (2), (4), (5) and (8)—are e-mails or memoranda prepared by the compliance officers
to help the Solicitor’s attorney prepare for this case. The sixth document, number (3),
contains e-mails between a compliance officer and the attorney in which they discuss
alternative theories of citation. As OSHA employees, the compliance officers are
“clients” for purposes of determining whether their communications with the Solicitor’s
attorney are protected by the attorney-client privilege. Upjohn Co. v. United States , 449
U.S. 383, 391-92 (1981). Because those communications were intended to secure the
Solicitor’s assistance for OSHA in the pending proceeding, they come within the scope of
the attorney-client privilege.

The judge also erred in finding that the Secretary did not establish the
confidentiality of the documents in question because she failed to assert that third parties
had not been given access to the documents. The Secretary plainly states in her affidavit
that “the materials described were intended to be and were kept confidential . . . .”
(Emphasis added). This averment, in the absence of any evidence to the contrary,
establishes that the documents have not been disclosed to third parties. Indeed, the
summary of documents indicates that all of the documents are communications within the
Department of Labor.

We therefore conclude that the documents for which the Secretary invoked the
attorney-client privilege under Commission Rule 52(d)(1) were protected by the attorney-client privilege and thus exempt from discovery.

II. Work Product Doctrine

The record also shows that all eight documents were protected by the attorney
work product doctrine. This doctrine, which is codified in Federal Rule 26(b)(3),
protects from disclosure certain materials prepared by attorneys or their agents acting for
clients in anticipation of litigation.

Hickman v. Taylor , 329 U.S. 495, 508 n.11 (1947).
It applies when the materials in question are shown to be (1) documents or other tangible
things, including an attorney’s “mental impressions, conclusions, opinions or legal
theories,” (2) prepared in anticipation of litigation or trial,

and (3) gathered by or for a party
or by or for that party’s representative. 8 Charles Alan Wright & Arthur R. Miller , Federal
Practice & Procedure § 2024 (2d ed. 1987). See also Continental Oil Co. , 9 BNA OSHC
1737, 1741, 1981 CCH OSHD ¶ 25,371, p. 31,580 (No. 79-570, 1981) (applying three-part test to work product claim). Opinion work product enjoys either absolute or near-absolute immunity and is only discoverable in very rare and extraordinary circumstances,
such as where the work product contains evidence of fraud or illegal activities. In re
Murphy , 560 F.2d 326, 336 (8th Cir. 1977). See also In re Doe, 662 F.2d 1073, 1080 (4th
Cir. 1981) (“It is clear that opinion work product is entitled to substantially greater
protection than ordinary work product.”)

Here again, the judge clearly erred in concluding that the Secretary had not
properly claimed the relevant privilege and in finding that the documents were not
privileged. The Secretary’s affidavit supports a finding that all eight documents are
attorney work product because they are (1) documents or tangible things, (2) prepared in
anticipation of litigation or trial, and (3) gathered by or for another party or by or for that
other party’s representative. Continental Oil , 9 BNA OSHC at 1741, 1981 CCH OSHD
at p. 31,580. In her affidavit, the Secretary summarizes the contents of each of the eight
documents covered by the judge’s discovery orders. For most of the documents, the
descriptions alone make clear that they were prepared in anticipation of litigation in the
present case: document (1) was prepared to help the Solicitor’s attorney “understand[]
the case file”; document (2) “explain[s] aspects of the lockout/tagout standard” at issue in
this case; document (3) discusses alternative theories of citation; documents (4) and (5)
were prepared to assist the attorney with interrogatories and depositions; documents (6)
and (7) are the attorney’s trial plans; and document (8) summarizes proof of certain
elements of the Secretary’s case and refers to confidential informants. The Secretary also
expressly states in her affidavit; “These materials are contained in the attorney’s
litigation file and were developed in ongoing consultation with OSHA after the issuance
of the citations for the sole purpose of preparing these matters for litigation .” (Emphasis
added.) This language removes any doubt that the Secretary has complied with
Commission Rule 52(d)(1) by identifying the relevant information and privilege, and
providing a factual basis for her claim of privilege.      

Because the eight documents are covered by the work-product doctrine, St.
Lawrence has the burden of proving it is entitled to discovery of the Secretary’s work
product. See Castle v. Sangamo Weston, Inc. , 744 F.2d 1463, 1467 (11th Cir. 1984). St.
Lawrence has not carried its burden here. As we have found, six of the eight documents
withheld by the Secretary are covered by the attorney-client privilege and exempt from
disclosure for that reason. The remaining two documents, numbers (6) and (7), are the
Solicitor’s trial plans. Most courts hold that this “opinion work product” is either
immune from discovery, Duplan Corp. v. Moulinage et Retorderie de Chavanoz , 509
F.2d 730, 735 (4th Cir. 1974), or can be discovered only in cases of “extraordinary
justification,” such as where the attorney’s actions are themselves an issue in the
underlying proceeding. In re Sealed Case , 676 F.2d 793, 809-10 (D.C. Cir. 1982). St.
Lawrence argues that it needs discovery of the Solicitor’s trial plans, along with the six
other contested documents, to prepare for the hearing, understand the actions of various
OSHA personnel, and prepare for cross-examination of witnesses. However, these
factors could be cited in almost any OSHA case. St. Lawrence cites no authority which
would support finding that these factors present extraordinary circumstances justifying
the disclosure of opinion work product.

III. Dismissal of the Citations

Commission Rule 52(f), 29 C.F.R. § 2200.52(f) provides that a Commission judge
may impose any sanction stated in Federal Rule 37, including dismissal, for failing to
comply with a discovery order. However, the judge cannot impose a sanction that is too
harsh under the circumstances of the case. Noranda Aluminum, Inc. , 9 BNA OSHC 1187,
1189, 1981 CCH OSHD ¶ 25,086, p. 30,988 (No. 79-1059, 1980). The Commission has
held that dismissal of a citation is too harsh a sanction for failure to comply with certain
prehearing orders unless the record shows contumacious conduct by the noncomplying
party or prejudice to the opposing party. Architectural Glass & Metal Co. , 19 BNA
OSHC 1546, 1547, 2001 CCH OSHD ¶ 32,424, pp. 49,975-76 (No. 00-0389, 2001).
Failure to comply with a judge’s order is not, by itself, an indication of contumacious
conduct “where the party’s reason for refusing to comply has a substantial legal basis and
its conduct did not indicate disrespect towards the Commission or the issuing judge.”
Donald Braasch Constr., Inc ., 17 BNA OSHC 2082, 2086, 1995-97 CCH OSHD
¶ 31,259, p. 43,868 (No. 94-1355, 1997).           

We find no basis for the judge’s dismissal sanction here. As we have found, the
Secretary’s position has a substantial legal basis. Apart from the Secretary’s
noncompliance with the judge’s orders, we see nothing in this record that could be
considered contumacious. Donald Braasch , 17 BNA OSHC at 2086, 1995-97 CCH
OSHD at p. 43,868 (dismissal not warranted where Secretary had a substantial legal basis
for failing to disclose and no evidence of contumacy). The judge described as
contumacious the Secretary’s noncompliance with his orders and her “refus[al] . . . to
allow the [judge] in camera inspection.” However, the judge never ordered an in camera
inspection of any document and St. Lawrence did not request one. The cases St.
Lawrence cites in support of its claim that dismissal was appropriate are inapposite at
best. While the cases suggest that a party’s intentional failure to follow discovery orders
can be considered bad faith, they neither hold that such a failure is necessarily evidence
of bad faith nor do they address the extent to which courts may consider whether the
party’s conduct has a substantial legal basis, a factor the Commission has considered in
its decisions . These cases also fail to address circumstances in which a court rule
provides a specific procedure for resolving a discovery dispute and the non-complying
party invokes that rule, as the Secretary did here when she filed her Petition for
Interlocutory Review pursuant to Commission Rule 52(d)(2), 29 C.F.R. § 2200.52(d).

Because the Secretary’s conduct was not contumacious, and because St. Lawrence
was not prejudiced by the Secretary’s failure to comply with the judge’s orders, the judge
erred when he dismissed the citations.

ORDER

We set aside the judge’s order dismissing the citations and remand this case for
further proceedings consistent with the Commission’s rules and in accordance with this
opinion.

SO ORDERED.

/s/____

W. Scott Railton

Chairman

/s/_____

Thomasina V. Rogers

Commissioner

Dated: March 20, 2006                            

SECRETARY OF LABOR,

Complainant,

v.

OSHRC Docket Nos. 04-1734 and

04-1735

ST. LAWRENCE FOOD CORP., d/b/a/
PRIMO FOODS

Respondent.

DECISION AND ORDER ON ORDER TO SHOW CAUSE

The undersigned in his order dated September 29, 2005 granted the Secretary’s request
for privilege protection under the informer’s privilege, denied the Secretary’s request for
privilege protection under the deliberative process privilege and granted the Respondent’s
request for certain documentary materials. (“Discovery Order 1"). On October 21, 2005, the
undersigned denied the Secretary’s request for privilege protection under the deliberative
process privilege, the attorney-client privilege, and the work product privilege. (“Discovery
Order 2"). On October 25, 2005, the undersigned denied the Secretary’s Second Motion For
Reconsideration seeking privilege protections. (“Discovery Order 3")

.

On October 25, 2005, the Respondent filed its motion seeking dismissal of these cases
for the Secretary’s failure to comply with the undersigned’s orders. Respondent alleged that it
was prejudiced in its preparation for trail scheduled to commence on November 8, 2005, as the
Secretary has failed to comply with any of the Court’s privilege protection orders and “STILL
has not produced the inspectors and other previously deposed parties for continued depositions
in light of these order [sic]; as a result the Respondent (a) “cannot fully prepare or prepare
pretrial submissions without discovery,” (b) cannot complete discovery without the “demanded
documents” which have “willfully been withheld,” ( c ) cannot “[w]ithout the discovery and
continued depositions * * * understand the actions of OSHA or its employees,” (d) cannot
without the opinions of the inspections [sic] and area director * * * understand the basis or
scope of either the citations or penalties,” and (e) cannot “prepare cross- examination of these
[OSHA] witnesses.” “The acts of the Complainant have reached the level of a fundamental
denial of substantive due process” due in part to the “magnitude and complexity” of these
proceedings. In its supplemental submission dated October 31, 2005, the Respondent argues
that it has been prejudiced since “[w]ithout the information [it] cannot prepare for trial,” and
“[d]ismissal is clearly warranted * * * .”

In a further supplement dated November 1, 2005, the Respondent stated that the “bad faith
and contumacious conduct of the Secretary is [sic] manifest” as the Secretary has (a) not
completed discovery, (b) asserted “self-serving” claims of privilege, ( c ) “produced privileged
documents; indicating the complainant does not find merit in its own arguments,‘ (d) “filed
redundant motions to delay disclosure until the eve of * * * trial, and therefore, these cases
should be dismissed.

On October 26, 2005, the undersigned issued his Order To Show Cause. The Order required
the Secretary to show cause why these cases should not be dismissed for failure to provide the
Respondent’s counsel with the ordered discovery materials. As the trial is scheduled to
commence on November 8, 2005 time is of the essence in deciding this matter.

On October 31, 2005, the Secretary filed her response to the Court’s Order To Show Cause.
This Decision and Order is being issued as a result of the Court’s Order To Show Cause.

DISCUSSION AND CONCLUSION

The purpose of discovery is to narrow the issues, to obtain evidence for use at a trial, and to
secure information concerning the existence of evidence. Wright, Miller & Marcus, Federal
Practice and Procedure : Civil 2d 2001. In the opinion of the undersigned, discovery also
encourages settlement. The basic philosophy of federal discovery process is that prior to trial,
every party to a civil action is entitled to disclosure of all relevant information in the possession
of any person unless the information is privileged. 6 Moore’s Federal Practice 26.02 (Matthew
Bender 3d ed.).

Failure to comply with a court order is a basis for dismissal. Dismissal is appropriate where
there has been a willful failure to prosecute on the part of a party, complete intransigence
despite a clear order from the court, Chira v. Lockheed, 634 F.2d 664, 665-666 (2d Cir. 1980)
or a complete failure to complete discovery as directed. Ali v. A & G Company, 542 F.2d 595
(2d Cir. 1976).

The sanction of dismissal is available to the court to ensure the smooth and fair operation of
discovery. Wright, Miller & Marcus, Federal Practice and Procedure : Civil 2d 2281. If the
conduct of a party reflects willfulness, bad faith gross negligence, or any other fault of the party
rather than an inability to comply, then the sanction of dismissal is warranted. Wright, Miller &
Marcus, Federal Practice and Procedure : Civil 2d 2284 and 2289.

Effective on August 1, 2005, the Commission revised Rule 52, General provisions governing
discovery. Rule 52 of the Commission’s Rules of Procedure, 29 C.F.R. 52 . Specifically Rule
52(d), Privilege. (1) Claims of Privilege and (2) Upholding or rejecting claims of privilege.
The undersigned is of the opinion that the Secretary would suffer no injustice if either the Old
Rule or the Revised Rule is applied to the facts of theses cases; however, out of an abundance
of caution, I am considering the Secretary’s actions under both the Old Rule and the Revised
Rule.

Old Rule

Discovery sanctions may be imposed pursuant to Rule 52, General provisions governing
discovery. Rule 52 of the Commission’s Rules of Procedure, 29 C.F.R. 52 . Specifically Rule
52(e) of the Commission’s Rules of Procedure, 29 C.F.R. 52(e) is applicable. The Show Cause
Order issued on October 26, 2005 inaccurately referenced Rule 41(a) of the Commission’s
Rules of Procedure. However, both Rules require the disobedient party to explain his/her
actions after being given an opportunity to show cause.

Rule 52(e) Failure to cooperate: Sanctions provides, as pertinent, “[i]f a Judge enters an
order compelling discovery and there is a failure to comply with that order, the Judge may
make such orders with regard to the failure as are just. The orders may issue upon the initiative
of a Judge after affording an opportunity to show cause why the order should not be entered, or
upon the motion of a party. The orders may include any sanction stated in Fed.R.Civ.P. 37,
including the following: * * * (4) An order dismissing the action or proceeding or any part
thereof, or rendering a judgment by default against the disobedient party.” ( Hereinafter
referred to as “Old Rule”).

On August 29, 2005, the Respondent filed its motion to compel, and the Secretary filed its
response. In Discovery Orders 1 and 2, the issues before this Court were the informer’s
privilege, deliberative process privilege, the attorney-client privilege, and the work product
privilege The Court in its Discovery Orders referenced Supreme Court and federal case law
setting forth the factors a court considers in ruling on privilege requests as well as the burden of
proof placed upon the party seeking each privilege.

The Secretary in its multiple motions for reconsideration did not meld the factors and its
parallel burden of proof to the facts of these cases. Despite the Court’s discourse on privilege
protections, the Secretary ignored the requirements of Discovery Orders1,2 and 3, and refused
to provide the Respondent with the materials as directed or to allow the undersigned in camera
inspection. As a result the Respondent has been prejudiced in its trial preparations. Supra. This
pattern of failures to cooperate on the part of the Secretary’s counsel was not due to competing
legal theories or conflicts in Federal circuit case law, but to intransigence. Thus, this pattern of
failures to comply with the Commission Rules and the undersigned’s orders constitutes wilful
behavior, contumacious conduct, and bad faith. Pittsburgh Forgings Company, 10 BNA OSHC
1512, 1514 (No. 78-1361, 1982). ( The Commission has an interest in preserving the integrity
of its orders as well as to deter future misconduct. Citing National Hockey League v.
Metropolitan Hockey League, 98 S.Ct. 2778 (1976). In accord, Trinity Industries Inc., 15
BNA OSHC 1579, 1583, n. 6. The Citations and Notification of Penalties will be dismissed.

Revised Rule

Commission Rule 52(d), Privilege (1) Claims of Privilege , 29 C.F.R. 52(d)(1), as revised
on August 1. 2005, provides, as pertinent, “The initial claim of privilege shall specify the
privilege claimed and the general nature of the material for which the privilege is claimed. In
response to an order from Judge * * *, or in response to a motion to compel the claim shall:
Identify the information that would be disclosed; set forth the privilege that is claimed; and
allege the facts showing that the information is privileged. The claim shall be supported by
affidavits, depositions or testimony and shall specify the relief sought. The claim may be
accompanied by a motion for a protective order or by a motion that the alleged privileged
information be received and the claim ruled upon an in camera. * * *

(2) Upholding or rejecting claims of privilege. * * * If the Judge overrules the claim of
privilege, the person claiming the privilege may obtain as of right an order sealing from the
public those portions of the record containing the allegedly privileged information pending
interlocutory or final review of the ruling, or final disposition of the case, by the Commission.”
(Hereinafter referred “Revised Rule”).

The Revised Rule is a beacon of light in the safe harbor of privilege(s) protection. It set
outs in an orderly manner the procedures a party must adhere to when a party claims privilege.
Applying the facts of these cases to the Revised Rule, the result is identical to the one reached
under the Old Rule.

Federal Rule of Civil Procedure 37(b)

Rule 37(b)(2)( C ) provides, as pertinent, If a party* * * fails to obey an order to provide or
permit discovery, * * * the court may make such orders in regard to the failure as are just and
among others the following: * * * ( C ) An order striking out the pleadings or parts thereof * *

• or dismissing the action or proceeding or any part thereof, or rendering a judgment by default
  against the disobedient party.

In Societe Internationale Pour Participations Industrie lles et Commericales, S.A . v. Rogers ,
78 S.Ct. 1087, 1093 (1958), the Court noted: “For purposes of subdivision (b)(2) of Rule 37,
we think that a party ‘refuses to obey’ simply by failing to comply with an order. So construed
the Rule allows a court all the flexibility it might need in framing an order appropriate to a
particular situation.”

In theses cases, the undersigned explained in great detail several times the requirements that
a party must follow in seeking privilege protection, and allowed the Secretary ample time to
provide the discovery request. The record is clear that the Secretary failed to comply with
discovery Orders 1 and 2, and the discoverable materials. The materials that the Secretary
failed to provide the Respondent were both appropriate and necessary to its defense, supra.
Tokyo Electron Arizona v. Discreet Industries , 215 F.R.D. 60,63 (E.D.N.Y., 2003)(“The
Second Circuit has warned litigants that ‘a party who flaunts [discovery] orders does so at his
own peril.’”) The Citations and Notification of Penalties will be dismissed.

IT IS ORDERED that Citations and Notification of Penalties that were issued on September
10, 2004 (Inspection Numbers 306315771, corresponding to OSHRC Docket No. 04-1735 and
306315680, corresponding to OSHRC Docket No. 04-1734 ) are dismissed..

IT IS FURTHER ORDERED THAT the administrative trial scheduled to commence on
November 8, 2005 is cancelled.

/s/  

Dated: November 2, 2005                                                 G. Marvin Bober

Washington, D.C.                                                             Administrative Law Judge