Contests of Respirable Dust Sample Alteration Citations

Read the official release (fmshrc.gov)

Plain-English summary

This master-docket order governed discovery in cases involving alleged alteration of coal dust filter media. Judge James A. Broderick adopted a discovery plan covering document repository access, filter examination and nondestructive testing, depositions, expert reports, and later case-specific discovery. The order set deadlines including completion of filter testing by October 30, 1991, expert reports by December 16, 1991, and a later conference for trial scheduling. It addressed procedure in the consolidated cases and did not decide whether any citation was valid or impose a penalty.

Decision snapshot

• Cited standard(s): None identified in this order.
• Outcome: The amended discovery plan was adopted for the master docket and related cases.
• Key point: The order established a coordinated schedule and procedures for discovery concerning alleged alteration of respirable dust samples.

Full text (FMSHRC public release)

---

Page 2

~1730
Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

IN RE: CONTESTS OF RESPIRABLE MASTER DOCKET NO. 91-1
DUST SAMPLE ALTERATION
CITATIONS

            AMENDED PREHEARING ORDER ADOPTING
              PLAN AND SCHEDULE OF DISCOVERY

 I hereby adopt as an order of the Review Commission the plan

and schedule of discovery submitted by counsel for the Secretary
on June 18, 1991, with the following revisions which resulted
from discussions at a Prehearing Conference on June 19, 1991, and
the Secretary of Labor's Motion to Amend Prehearing Order
Adopting Plan and Schedule of Discovery.

Introduction

 The purpose of this plan is to avoid delay by providing a

mechanism to fairly and efficiently conduct discovery regarding
the Secretary of Labor's (hereinafter "the Secretary")
allegations of alterations of coal dust filter media. This plan
and schedule is intended to apply, to the extent feasible, to
discovery in all cases pending before the Federal Mine Safety and
Health Review Commission (hereinafter "the Commission") involving
altered dust filter media. The plan and schedule of discovery
provides for complete and effective discovery while minimizing
the duplication of effort and unnecessary delay to the parties
and the Commission. Adoption of this plan will provide for the
economy of scarce judicial resources and prevent unnecessary
disruption of enforcement functions of the Mine Safety and Health
Administration, United States Department of Labor.

---

Page 3

~1731
The parties submitting this plan have acknowledged that there may
be fundamental distinctions in some cases and that there must be
an opportunity for case-specific discovery. Other than as
provided for in this plan, all case-specific discovery will be
conducted under individual docket numbers.

 All parties agree that the approval of this plan does not

constitute a waiver of any party's right to assert any defense or
privilege which is otherwise applicable.

 References to "operators" in this document refer to: 1) any

party designated as a contestant in a notice of contest
previously filed with the Commission; and 2) any party designated
as a respondent in the civil penalty proceedings filed by the
Secretary of Labor. References to "other parties" includes
references to: 1) operators and 2) all intervenors.

 References to "dust filter media" mean the filter and the

backing pad from the coal dust sample cassette identified in each
citation.

Summary of the Plan

 The plan and schedule of discovery provides for the issuance

of a generic docket number applicable to discovery of facts and
conclusions common to all of the citations at issue before an
administrative law judge. The plan and schedule also provides for
discovery of facts and conclusions which are not common to all
citations and therefore outside of the scope of the generic
docket number. Other than as specifically provided for in this plan,

---

Page 4

~1732
case-specific discovery will be conducted under individual docket
numbers.

 The plan contemplates that, within five (5) days of the date

of its adoption, or by June 25, 1991 whichever is later, all
other parties will be provided with complete access to all
non-privileged documents possessed by the Secretary that are
properly subject to discovery. The plan also provides that the
other parties may take the depositions of Robert Thaxton on July
24th through July 26th and Lewis Raymond on July 29th and 30th in
order to discover generally how the Secretary made her
determination that the weights of the samples at issue were
altered. The plan further provides that the other parties may
examine, pursuant to certain limitations, the dust filters
applicable to their respective cases and may subject the dust
filters to non-destructive testing. Examination of these filters
is to be completed by October 30, 1991.

 Other than the two depositions mentioned above, all

depositions of witnesses will begin only after discovery by
interrogatory and document production is completed on August 30,
1991. The depositions of individuals with first-hand knowledge
regarding the dust sampling and the designation of the dust
filters at issue as altered will precede the depositions of other
individuals. Joint Depositions of fact witnesses will be taken
between October 7, 1991 and November 22, 1991.

 All expert witnesses will be required to prepare a written

report summarizing their credentials, all opinions to which they

---

Page 5

~1733
will testify in these matters, and the basis for such opinions.
These reports must be exchanged by December 16, 1991. The
depositions of expert witnesses will be taken between January 6,
1992 and February 14, 1992.

 Upon the completion of the discovery specifically provided

for in this plan, counsel for the Secretary and the other parties
will meet to discuss proposing an order and schedule of trials
and a plan and schedule for case-specific discovery in those
matters.

I. ADOPTION OF A GENERIC CAPTION AND MASTER DOCKET NUMBER

 A. To the extent feasible, all contest and civil penalty

cases which involve altered dust filter media will carry a
generic caption and master docket number to encompass discovery
in all related litigation. Parties may serve pleadings, motions,
and notices regarding discovery without having to list each
party, citation number, and docket number. The generic caption
and master docket number will be used in all pleadings, motions,
or notices issued during the joint round of discovery. All
motions or other pleadings relating to joint discovery and filed
pursuant to the approved joint discovery plan shall be served on
all other parties, including all operators.

 B. In any civil penalty proceeding in which the Secretary's

allegation regarding altered dust filter media has been
previously contested, the Secretary of Labor shall file the
Petition for Assessment of Civil Penalty (hereinafter "the
Petition") under the master docket number and the individual
docket number assigned by the Commission. The Secretary shall
serve the Petition, a copy of

---

Page 6

~1734
this Plan and Schedule of Discovery, and a copy of the list of
documents available in the document repository upon each
Respondent. All proceedings under Petitions so filed shall be
governed, to the extent feasible, by the terms of this Plan and
Schedule of Discovery.

 C. In any civil penalty proceeding arising out of a citation

alleging an alteration of a respirable dust sample issued by the
Secretary on April 4, 1991, the Secretary of Labor shall file the
Petition for Assessment of Civil Penalty (hereinafter "the
Petition") under the master docket number and the individual
docket number assigned by the Commission. The Secretary shall
serve the Petition, a copy of this Plan and Schedule of
Discovery, and a copy of the list of documents available in the
document repository upon each Respondent. All proceedings under
Petitions so filed shall be governed, to the extent feasible, by
the terms of this Plan and Schedule of Discovery.

 D. Contests of citations issued after April 4, 1991 to any

of the other parties which involve allegations of the alteration
of respirable dust samples, as well as all civil penalty
proceedings arising out of such citations, shall be governed, to
the extent feasible, by the terms of this Plan and Schedule of
Discovery.

II. DISCOVERY UNDER THE GENERIC CAPTION AND MASTER DOCKET NUMBER

 A. Creation of a Document Repository

 1. The Secretary will create a document repository in

Arlington, Virginia, where all documents to be made available by
the Secretary during discovery will be indexed, described, and

---

Page 7

~1735
filed in a central location. The document repository will contain
authenticated copies of all discoverable non-privileged documents
in the Secretary's possession or control relating to altered dust
filter media as well as photographs of each dust filter. The
document repository will include scientific reports relied upon
by the Secretary in determining to issue the citations involved
here. The document repository will be available for the other
parties to use within five (5) days of the entry of an order
adopting this plan, or by June 25, 1991, whichever is later. A
copy of the list of documents available in the document
repository will be sent to all other parties by June 21, 1991.

 2. The other parties will be required to avail themselves of

the documents in the document repository before filing further
requests for production of documents. The Secretary will arrange
for one copy of each requested document relevant to that party's
citations to be made available to that party, without cost, upon
ten (10) working days written notice. The other parties may also
request copies of specific documents in the document repository
by mailing a letter which specifically identifies the documents
from the list provided by the Secretary. Such requests should be
addressed to the Secretary's counsel. The Secretary will provide
such documents within ten (10) working days of receipt of the
request.

 3. The Secretary will also compile a list, including the

origin, date, recipient, brief description, and title, of any
document deemed by the Secretary not to be discoverable or which is

---

Page 8

~1736
otherwise privileged. The Secretary will on or before July 1,
1991, mail to all other parties copies of the list of documents
she deems privileged or otherwise not subject to discovery and a
statement of the basis for the claimed privilege. A copy of this
list will be kept in the repository for examination and copying
by the other parties.

 4. Parties desiring physical access to the document

repository will be expected to consult with the Division of Mine
Safety and Health, Office of the Solicitor to insure that
sufficient space is available to accommodate all interested
parties at the requested time. Parties should call 703-235-1153,
at least twenty-four (24) hours in advance of their expected
arrival, to arrange for access to the document repository.

 5. The document repository will be available from June 25,

1991 to August 30, 1991.

 B. Testing of Dust Filters

 The Secretary will make available for photographing and

nondestructive testing the dust filter media which are the basis
for the Section 104(a) citations and associated civil penalties
issued to the other parties. The production of these dust filters
will be limited as follows:

 1. The dust filter media shall be made available first to

the coal mine operator (or designated representative) named in
the relevant citation. The other parties shall have access to
each other's dust filter media only upon receipt by the
Secretary's counsel of written permission from the counsel for
the operator

---

Page 9

~1737
named in the relevant citation. Upon the refusal of written
permission by another party, or other inability to obtain the
other party's permission, any party may move the administrative
law judge for an order providing the moving party with access to
the dust filter media of another party.

 2. All dust filter media shall be made available in

Arlington, Virginia, at a location designated by the Secretary
for photographing, examination, and nondestructive testing.

 3. Any party may request in writing that the Secretary

transfer its dust filter media to the Denver Health Technology
Center, Denver, Colorado, for photographing, examination, and
nondestructive testing. Such requests must be received by the
Secretary's counsel by July 25, 1991. The Secretary must complete
the transfer of the dust filter media by August 8, 1991. All dust
filter media for which no written request to transfer is received
by July 25, 1991, shall remain in Arlington, Virginia@

 4. Photographing, examination, and nondestructive testing

may only be conducted in the presence of a representative of the
Secretary. The Secretary's right to select a representative of
her choice is not limited in any respect. The operators must
provide their own equipment, chemicals, and other necessary
materials needed to conduct their nondestructive testing. The
operators must also provide for the safe removal and disposal of
all waste materials which result from the nondestructive testing.

 5. The request of the operator for the production of the

dust filter media must be made in writing to the Secretary's
counsel and

---

Page 10

~1738
be received at least five (5) days in advance of the requested
date for production. The request must state specifically: 1) the
dust filter media the operator proposes to examine; 2) the names
of the individuals to examine the dust filter media; 3) the
specific examination procedures and the equipment, chemicals,
and/or processes that the dust filter media will be subject to;
4) the equipment, chemicals, and materials the operators will use
to perform the nondestructive testing; 5) an agreement that the
operator will safely remove and dispose of all waste materials
which result from the nondestructive testing; and, 6) the date,
time, and anticipated duration of such examination.

 6. The request must certify that the procedures, chemicals,

and processes that the dust filter media will be subject to will
not destroy or alter the dust filter in any material respect. The
parties acknowledge that should the dust filter media be
destroyed or materially altered during the operators'
photographing, examination, or testing, the photograph of that
dust filter media previously taken by the Secretary shall be
admissible in these proceedings.

 7. If counsel for the Secretary believes that the

examination or the procedures, chemicals, and processes could
result in the dust filter media being destroyed or altered, the
Secretary shall promptly notify the requesting party of the basis
for the Secretary's belief and the parties shall attempt to
resolve the issue. Issues which cannot be resolved expeditiously
may be submitted to the administrative law judge for resolution.

---

Page 11

~1739
8. The operators' right to review and conduct nondestructive
testing will be subject to reasonable limitations in terms of the
duration of tests and the number of tests. The operators
acknowledge that the Secretary may impose reasonable limitations,
consistent with her obligation to maintain a chain of custody for
each of the dust filter media, upon the number of parties
conducting examinations or testing at one time. If the Secretary
and the operators cannot expeditiously resolve any disputes
regarding the duration or number of tests, the matter may be
submitted to the administrative law judge for resolution.

 9. Where the operators desire to conduct testing of the dust

filter media which requires equipment which cannot be utilized at
the location provided by the Secretary, the Secretary will make
reasonable efforts to cooperate in such testing. If the Secretary
and the operators cannot expeditiously resolve any disputes
regarding such tests, the matter may be submitted to the
administrative law judge for resolution.

 10. The photographing, examination, and nondestructive

testing of the dust filter media shall be completed by October
30, 1991.

 11. The parties recognize that additional examination and

testing of dust filter media may be necessary following the
depositions of the Secretary's expert witnesses. The Secretary
agrees to make reasonable efforts to comply with such requests.
If the Secretary and the operators cannot expeditiously resolve
any disputes regarding such tests, the matter may be submitted to the

---

Page 12

~1740
administrative law judge.

 C. Expert Witnesses

 The provisions of this Plan and Schedule shall be applicable

to all expert testimony offered by the Secretary or the other
parties at any trial involving altered dust filter media.
Testimony of expert witnesses for the Secretary and other parties
will be taken subject to the following limitations:

 1. The Secretary and the other parties will exchange lists

of all experts they anticipate using at trial. These lists are to
be exchanged by December 2, 1991. Any additions or deletions in
these lists must be served on opposing counsel within ten (10)
days of a party's decision to add or delete an expert witness.

 2. Expert witnesses will be required to prepare a written

report stating their credentials, all opinions or conclusions to
which the expert expects to testify at trial, and a summary of
any test, study, results, or evaluations which form the basis for
such conclusions or opinions. These reports shall be served upon
opposing counsel by December 16, 1991.

 3. All costs associated with the depositions of experts,

including expert fees for testifying, shall be controlled by Rule
26(b)(4) of the Federal Rules of Civil Procedure except when
otherwise agreed to by the parties.

 4. Depositions of experts shall be held where the expert is

located, unless the party on whose behalf the expert will testify
agrees to provide the expert at some other location. In this
situation, the costs of having an expert travel to such other

---

Page 13

~1741
location (and any associated travel expenses) shall be borne by
the party on whose behalf the expert will testify.

 5. Depositions of "case specific" expert witnesses may be

noticed during the period for case specific discovery beginning
in March 1992. Expert witnesses may be retained after and as a
result of case specific discovery.

 D. Sequence of Discovery

 The First or Joint Phase

 1. No depositions, except those provided for below in

paragraph D. 2, shall be taken until such time as discovery
through requests for admissions, interrogatories, the document
repository, and requests for production of documents are
completed. Except for good cause shown, responses to requests for
admissions, answers to interrogatories, inspection of the
document repository, and responses to requests for production of
documents shall be completed by September 13, 1991. Motions to
compel shall be filed by October 4, 1991. The pendency of any
such motion shall not delay the implementation of any subsequent
provision of this plan and schedule of discovery.

 2. The Secretary shall make Robert Thaxton, District 4, Coal

Mine Safety and Health, available for deposition on July 24, 25,
and 26, 1991, and Lewis Raymond, Pittsburgh Health Technology
Center, Mine Safety and Health Administration, available for
deposition on July 29 and 30, 1991. These depositions shall be
conducted at a suitable location designated by the Secretary in the

---

Page 14

~1742
Washington, D.C. area. These two depositions shall be taken
pursuant to the terms of paragraph D. 10 below.

 3. The Secretary will initiate discovery by admissions,

interrogatories, and request for production of documents and
things of the other parties under the generic docket number
within 15 days of the entry of the order adopting this discovery
schedule or July 15, 1991, whichever is later.

 4. The Secretary will, on or before July 1, 1991, identify

all persons, including employees of the Secretary, who were
involved in the receipt and processing of the dust filter media
which led to the citations at issue.

 5. The Secretary will, on or before July 1, 1991, identify

all persons, including employees of the Secretary, who made the
determination that the dust filter media at issue each had been
altered.

 6. The operators will, on or before August 30, 1991,

identify, for each dust sample the Secretary has alleged was
altered in the contested citations, those employees of the
operator who were responsible for: (a) the dust sampling program
at each mine; (b) the identity of the person who signed each dust
data card; (c) the identity of the person responsible for the
custody and control of each dust cassette after it had been
removed from the miner or the designated sampling area; (d) the
identity of the person responsible for the transferring of each
dust cassette from the operator to MSHA; and, (e) a general
description of the process

---

Page 15

~1743
of the dust sampling program at each mine subject to the master
docket.

 7. All parties desiring to take the deposition of potential

fact witnesses as a Joint Deposition shall notify the Secretary
and the other parties in writing of the names of such witnesses
by September 13, 1991. All parties may, by October 4, 1991,
supplement their lists of potential fact witnesses identified
from written discovery responses. With the exception of persons
listed as witnesses by a party, or persons named by the Secretary
or the other parties as required by paragraphs four (4), five
(5), and six (6) above, such notifications shall include a brief
recital of the reasons for the taking of the deposition. On or
before October 14, 1991, the Secretary will notify all parties in
writing of the names of any fact witnesses from whom the
Secretary desires to take a deposition as a Joint Deposition.
Joint Depositions will not be limited only to the witnesses
listed in paragraphs II., D. 4, 5, and 6 above. Additional Joint
Depositions will only be allowed if a party is permitted to amend
its list of potential witnesses.

 8. The depositions of the employees of the Secretary shall

be taken in a sequence beginning with the lower level employees
and proceeding up the chain of command. This is to insure that
the individuals with first-hand knowledge will be deposed first
and to reduce the necessity for repeatedly deposing individuals
with important enforcement responsibilities.

 9. The depositions of witnesses will be taken in two phases.

The first phase of depositions will be taken under the generic

---

Page 16

~1744
caption and master docket number referred to above and will be
limited to Joint Depositions. The Joint Depositions of fact
witnesses shall be taken prior to such depositions of expert
witnesses.

 a. Depositions of the Secretary's witnesses will be taken as

Joint Depositions if the Secretary names the witness pursuant to
paragraphs four (4) or five (5) above, or otherwise indicates
that the witness is expected to testify in more than one
proceeding pending before the Commission. The date and locations
of Joint Depositions of the Secretary's non-expert witnesses will
be proposed in writing by the Secretary within ten (10) days of
the closing of the notice period for Joint Depositions (see
paragraph 7 above). The Secretary will consult with opposing
counsel prior to proposing such dates and locations. The other
parties may file written objections to the proposed dates and
locations with the administrative law judge. If written
objections to the proposed dates and locations are received, the
administrative law judge shall set the dates and locations of the
depositions by order.

 b. The deposition of a witness for the other parties will

also be taken as a Joint Deposition if the witness is listed as a
potential witness for more than one party, or if the witness is
identified as an expert pursuant to paragraph C. 1 above. The
date and locations of Joint Depositions of the other parties'
non-expert witnesses must be proposed in writing by the parties
within ten (10) days of the closing of the notice period for
Joint Depositions (see paragraph 6 above). The other parties will
consult with each

---

Page 17

~1745
other and the Secretary's counsel prior to proposing such dates
and locations. The Secretary may file written objections to the
proposed dates and locations with the administrative law judge.
If written objections to the proposed dates and locations are
received, the administrative law judge shall set the dates and
locations of the depositions by order.

 10. Joint Depositions will be taken pursuant to the

following procedures and limitations.

 a. All Joint Depositions will be recorded by a certified

court reporter and videotaped if requested by a party. The party
making the request shall bear the cost of videotaping. The party
noticing the deposition will be responsible for all fees
associated with the certified court reporter.

 b. The Joint Depositions will be limited to testimony that

is common to all of the cases. In the case of expert witnesses,
such Joint Depositions will be limited to the witness'expertise,
methodology, data, conclusions, and the basis for such
conclusions. Questions relating to specific citations will not be
appropriate, unless the expert has such knowledge.

 c. At all Joint Depositions of a witness for the Secretary

the operators' counsel shall determine in advance the lead
questioner and shall draw lots for the order of questioning by
other operators' counsel. Questioning will be permitted by
intervenors' counsel at the conclusion of the operators'
questioning. Cumulative and repetitive questions from different
counsel and parties will not be allowed.

---

Page 18

~1746
d. At all Joint Depositions of a witness for a party other than
the Secretary, only the Secretary, the parties retaining the
individual as a witness, and the representative of miners in the
subject mine, if the representative of miners at the subject mine
has chosen to intervene pursuant to applicable Review Commission
rules, shall be allowed to participate. The United Mine Workers
of America (UMWA) filed an intervention on June 24, 1991, for
mines in which it is the representative of the miners.

 11. Subpoenas shall not be necessary to require the

attendance of any salaried employee of a party or retained expert
to testify at a deposition. Subpoenas for entities or individuals
requiring the attendance of witnesses and the production of
documents at deposition will be available upon the filing of a
notice of depositions and a written request for a subpoena which
specifies the individual and/or the things sought. A copy of such
written request shall be served upon all counsel served with the
notice of deposition.

 12. The Joint Depositions of non-expert witnesses shall be

completed by November 22, 1991. Additional depositions may be
permitted only for good cause shown.

 13. All parties desiring to take the deposition of an expert

witness as a Joint Deposition shall notify the Secretary and the
other parties, in writing of the identity of the expert by
December 24, 1991. The party noticing such a deposition shall
confer with counsel of the party offering the expert testimony
for the purpose of fixing the dates and locations of the
depositions.

---

Page 19

~1747
If the parties cannot agree, the administrative law judge shall
set the dates and locations of the depositions by order.

 14. The Joint Depositions of all expert witnesses shall be

completed by February 14, 1992. Additional depositions may be
permitted only for good cause shown.

 15. Joint Depositions may be used, consistent with the

Federal Rules of Evidence and Federal Rules of Civil Procedure,
at the trial of any proceeding subject to the master docket
number.

 E. Notices

 Notices of all proceedings under this plan shall be sent to

all parties.

 F. Filing of Discovery

 Pursuant to Rule 5(d) of the Federal Rules of Civil

Procedure, discovery requests and responses will not be filed
with the Commission except in connection with a motion seeking a
ruling @n a discovery dispute.

III. CASE SPECIFIC DISCOVERY AND ORDER OF TRIALS

 Counsel for the Secretary and the other parties shall meet,

within ten (10) days of February 14, 1992 for the purpose of
discussing and proposing to the administrative law judge a
proposed order and schedule of trials and a plan and schedule for
case-specific discovery in such matters. A discovery conference
shall be held on March 2, 1992, at a time and location specified
by the administrative law judge, to discuss the order and
schedule of trials and a schedule for case-specific discovery.

---

Page 20

~1748
IV. DISCOVERY FOR NEW PARTIES

 1. Operators who were parties in this case prior to June 28,

1991 (the date of the issuance of the Plan and Schedule of
Discovery), shall serve responses to the Secretary's written
discovery on or before September 20, 1991.

  2. Operators who become parties in this case between June

28, 1991 and September 17, 1991, shall serve responses to the
Secretary's written discovery within 40 days of September 17,
1991.

 3. Operators described in numbered paragraph 2 above shall

have the same 40 day period to utilize the document repository
and to serve written discovery requests on the Secretary. The
Secretary shall respond to such written discovery requests within
30 days of service.

 4. Operators described in numbered paragraph 2 above shall

be permitted to examine and test their filter media in accordance
with the Plan and Schedule of Discovery within the same 40 day
period. Western operators may request transfer of their dust
filters to the Denver Health Technology Center within the same 40
day period, for testing in accordance with the Plan and Schedule
of Discovery. If the filters are transferred to Denver, the
testing shall be completed on or before November 30, 1991.

 5. Operators described in numbered paragraph 2 above shall

identify their employees involved in dust sampling in accordance
with paragraph II.D.6 of the Plan and Schedule of Discovery
within the above mentioned 40-day period.

---

Page 21

~1749
6. Operators who become parties to this case after September 17,
1991, shall serve responses to the Secretary's written discovery
requests, shall utilize the document depository, shall serve
written discovery requests on the Secretary, shall be permitted
to examine and test their filter media, and shall identify their
employees involved in dust sampling within 40 days of the date
they become parties in this case.

V. AMENDMENTS TO PLAN

 Amendments to this Discovery Plan and Schedule may be

granted, for good cause shown, upon the motion of any party.

                              James A. Broderick
                              Administrative Law Judge