Secretary of Labor on behalf of Adam Whiton v. Wharf Resources (USA), Inc.

Plain-English summary

Wharf Resources moved to compel 18 documents from MSHA's investigation of Adam Whiton's discrimination complaint. After reviewing the documents privately, Judge Thomas P. McCarthy held that the agency's case analysis, investigative report, internal memoranda, handwritten notes, and complainant-supplied material were protected work product because Wharf had not shown substantial need or undue hardship. He ordered immediate disclosure of five interview memoranda from management agents who had counsel present because their identities were known and those statements were not protected. Seven other interview memoranda remained protected during discovery but had to be produced at trial under the Jencks rule after each witness's direct testimony, subject to possible redactions. The motion to compel was otherwise denied, and the privileged documents were sealed for any appeal.

Decision snapshot

• Governing rule: 29 C.F.R. § 2700.56(b)
• Outcome: Five management interview memoranda were ordered produced immediately; seven other statements were deferred until trial; all other requested documents remained privileged.
• Key point: Informant and work-product protections can delay witness-statement disclosure, but they do not shield statements by identified management agents represented by counsel.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9900 / FAX: 202-434-9949

April 29, 2016

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION
(MSHA), on Behalf of ADAM WHITON,

Complainant

v.

WHARF RESOURCES (USA), INC.,  

Respondent

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DISCRIMINATION PROCEEDING

Docket No. CENT 2016-0221-DM

RM-MD-16-04

Mine: The Wharf Mine

Mine ID: 39-01282

ORDER GRANTING IN
PART, AND DENYING IN PART,

RESPONDENT’S
MOTION TO COMPEL

Before:            Judge
McCarthy

This proceeding
involves a discrimination complaint brought by the Secretary of Labor on behalf
of Adam Whiton under section 105(c)(2) of the Federal Mine Safety and Health
Act of 1977 (the Mine Act}, 30 U.S.C. § 815(c)(2).[1] The matter is set for
hearing in Deadwood, South Dakota on June 14 and 15, 2016, and continuing dates
thereafter until completed.     

On April 11, 2016, the Respondent filed a Motion
to Compel 18 documents withheld during discovery pursuant to the Secretary’s
privilege log. On April 15, 2016, the Secretary filed an Opposition to
Respondent’s Motion to Compel. During an April 20, 2016 conference call, I
ordered in camera review of the documents at issue.

Commission Procedural Rule 56(b) provides that
parties may obtain discovery of any relevant matter that is not privileged. 29
C.F.R. § 2700.56(b).  A Commission judge is authorized to exercise wide
discretion in ruling on discovery issues and the Commission does not substitute
its judgment for that of the judge unless error or abuse of discretion has
occurred.  In Re: Contests of Respirable Dust Sample Alteration Citations,
14 FMSHRC 987, 1004 (1992).

Following my in camera review, I grant the
motion to compel production of five Memorandums of Interview taken from
management agents. The Secretary is ORDERED to turn these witness
statements over immediately. In all other respects, the Respondent’s Motion to
Compel is DENIED.  The remaining seven Memorandums of Interview are
subject to the Jenks rule.  See generally Jenks v. United States,
353 U.S. 657, 667-69 (1957); 18 U.S.C. § 3500.[2]

Documents at Issue

1.     
MSHA Case Analysis

The first document at
issue is an undated Case Analysis, prepared by MSHA analyst, Joel Gerhard,
recommending that further action be pursued on Whiton’s behalf under section
105(c)(2).  The Secretary claims work product, deliberative process, and
attorney client privilege. I agree, but need not pass on the latter two
privileges.  

The document was
prepared in anticipation of litigation or for trial on behalf of a party or
that party’s representative. Accordingly, the document is privileged work
product.  The work product privileged is qualified and subject to disclosure
only upon a showing that the requesting party has substantial need for the
material to prepare its case and cannot, without undue hardship, obtain the
substantial equivalent by other means.  See e.g., Consolidation Coal, 19
FMSHRC 1239, 1242-43; Fed. R. Civ. P. 26(b)(3), incorporated by Commission
Procedural Rule 1(b), 29 C.F.R. § 2700.1(b).  Respondent makes no such showing.
 See R. Mot. at 6-7. Even if Respondent had made such a showing, the
document discloses a party representative’s mental impressions, conclusions,
opinions, and legal theories, and such work product, including the evaluative
and analytical discussion of facts inextricably intertwined therein, cannot be
disclosed simply on a showing of substantial need or inability to obtain the
equivalent without undue hardship.  Upjohn Co. v. U.S., 449 U.S. 383,
400 (1980); Fed. R. Civ. P. 26(b)(3)(B).

2.     
Special Investigator Dan
Scherer’s Special Investigative Report

The second document at
issue is Special Investigator Dan Scherer’s December 10, 2015 Special
Investigative Report. The Secretary claims work product, deliberative process,
informant, and attorney client privilege. I agree, but need not pass on the
latter three privileges.  The document is privileged work product that is not
subject to disclosure for all of the reasons set forth in 1 above.

3.     
12 Memorandums of Interview

The Secretary asserts
work product privilege and informant’s privilege for each of the 12 Memorandums
of Interview documents at issue in his privilege log. The informant’s privilege
protects the identity of the informant, not his statement, unless disclosure of
the contents of the statement would tend to reveal the identity of the
informant.  See Brock v. Frank V. Panzarino, Inc., 109 F.R.D. 157, 158
(1986), citing Roviano v. United States, 353 U.S. 53, 60 (1957) and 4
Moore’s Federal Practice ¶ 26.61 [6.-2] (2d Ed. 1981).  An informant is any
person who has furnished information to a government official to assist in the
government’s investigation of a possible violation of the law, including the
Mine Act.  Bright Coal Co., 6 FMSHRC 2520, 2525 (1984). The Memorandums
of Interview taken by Special Investigator Scherer include both privileged and
unprivileged matter, to wit, the identities of the informants and the substance
of their statements. The in camera review ordered properly balances the public
interest in efficient enforcement of the Mine Act, the informants’ right to be
protected against possible retaliation, and Respondent’s need to prepare for
trial. Cf., Hodgson v. Charles Martin Inspectors of Petroleum, Inc., 459
F.2d 303, 305 (5th Cir. 1972); Bright Coal, FMSHRC at 2525.  

Applying the Bright
Coal balancing test, I find the Memorandums of Interview to be relevant and
discoverable. I further find them subject to qualified informant and work
product privileges at the discovery stage, except for statements taken from management
agents with counsel present, which must be turned over immediately. I have
considered the discriminatory discharge alleged, the Respondent’s defense that
Whiton called another miner a derogatory name, the significance of certain
informant testimony concerning Whiton’s protected activity and Respondent’s defense,
the possibility of retaliation or harassment against said informants, and the
fact that the substantial equivalent of the information elicited by Special
Investigator Scherer is available through the same sources based on
Respondent’s own investigatory prowess. I conclude that the Secretary’s need to
maintain the privileges to preserve the identity of informants and the work
product of its special investigator outweighs the Respondent’s need for the
information, until witnesses are called at trial. 

The Secretary asserts
in his Opposition that there are two types of witness interview memorandums. The
first are unsigned memorandums, which represent the work product of
investigator Scherer and may be withheld from disclosure. Baylor Mining, Inc.,
26 FMSHRC 739, 742 (2004)(ALJ).[3] The second
are memorandums signed and adopted by the interviewees, which may be disclosed
at trial pursuant to the Jenks Act, 18 U.S.C. § 3500. See Thunder Basin, 15
FMSHRC at 2237 (1993).  

Contrary to the
Secretary, I find no difference between the two types of statements in the
circumstances of this case. Under the Jenks Act, the term “statement” includes
not only a written statement made and signed or otherwise adopted or approved
by the witness, but also any

“ … other recording, or a
transcription thereof, which is a substantially verbatim recital of an oral
statement made by said witness and recorded contemporaneously with the making
of such oral statement …” 18 U.S.C. § 3500(e)(1) and (2).

Three Memorandums of
Interview were signed and adopted by the interviewees.  Each of the nine
unsigned Memorandums of Interview were prepared from notes made by Special
Investigator Scherer during and immediately after the interview and Scherer
verified that he recorded in summary fashion all pertinent matters discussed
with the interviewee. Accordingly, I find that all 12 Memorandums of Interview are
“statements” for purposes of Jenks.

Five of the nine
unsigned Memorandums of Interview were given by management agents, with counsel
present.  Under these circumstances, Respondent is entitled to a copy of these
previous statements in discovery as they are not protected by the work product
or informant’s privilege. See Fed. R. Civ. P. 26(b)(3); Rovario,
353 U.S. at 60 (suggesting that informant’s privilege
is waived once the identity of the informant is disclosed); Thunder Basin,
15 FMSHRC at 2236 (informant privilege waived where there is an express
identification of the individual as an informant). 

With regard to the
remaining seven Memorandums of Interview, based on the Bright Coal
factors balanced above, I find that the Secretary’s interest in protecting the
identity of its informants and work product outweigh the Respondent’s need for
the statements of potential government witnesses at the discovery stage. See
Brennan v. Engineered Products, Inc., 506 F.2d 299, 303 (8th
Cir. 1974). I also note that the contested issues of protected activity,
adverse action, nexus, and Respondent’s defense are peculiarly within
Respondent’s knowledge, and if it had no knowledge, there is no prima facie
case. Further, Respondent can take its own statements and depose potentially
adverse witnesses. “Discovery was hardly intended to enable a learned
profession to perform its functions . . . on wits borrowed from the adversary.”
Hickman v. Taylor, 329 U.S. 495, 516 (1947)(Justice Jackson concurring).

In the exercise of my
discretion, after in camera review, I will order the remaining seven witness
statements to be turned over at trial, pursuant to a proper invocation of the Jenks
rule by Respondent, after each potential witness has testified under direct
examination. The Secretary may request appropriate redactions at that time. See
18 U.S.C. § 3500(c).  

4.     
Memorandum to File From Special
Investigator Scherer Dated November 5, 2015

The Secretary claims
that this document is privileged work product.  I agree. The document was
prepared in anticipation of litigation or for trial on behalf of a party or
that party’s representative. Accordingly, the document is privileged work
product.  The work product privileged is qualified and subject to disclosure
only upon a showing that the requesting party has substantial need for the
material to prepare its case and cannot, without undue hardship, obtain the
substantial equivalent by other means.  See e.g., Consolidation Coal, 19
FMSHRC at 1242-43; Fed. R. Civ. P. 26(b)(3), incorporated by Commission
Procedural Rule 1(b), 29 C.F.R. § 2700.1(b).  Respondent makes no such showing.
 See R. Mot. at 10.  Even if Respondent had made such a showing, the
document was incorporated into the Special Investigative Report to disclose a
particular legal theory and therefore cannot be disclosed simply on a showing
of substantial need or inability to obtain the equivalent without undue
hardship.  Upjohn, 449 U.S. at 400 (1980); Fed. R. Civ. P. 26(b)(3)(B).

5.     
Memorandum to File From Special
Investigator Scherer Dated November 2, 2015

The Secretary claims
that this document is protected from disclosure by work product, informant, and
common interest privileges.  I need not pass on the latter two privileges.  The
document was prepared in anticipation of litigation or for trial on behalf of a
party or that party’s representative. Accordingly, the document is privileged
work product.  The work product privilege is qualified and subject to
disclosure only upon a showing that the requesting party has substantial need
for the material to prepare its case and cannot, without undue hardship, obtain
the substantial equivalent by other means.  See e.g., Consolidation Coal,
19 FMSHRC at 1242-43; Fed. R. Civ. P. 26(b)(3), incorporated by Commission
Procedural Rule 1(b), 29 C.F.R. § 2700.1(b).  Respondent makes no such showing.
See R. Mot. at 10.  Further, Respondent has other means to obtain the same or
equivalent information without undue hardship. Even if Respondent had made such
a showing, the Memorandum to File refers to certain documents given to Special
Investigator Scherer by complainant Whiton to support the legal theory of the
case in the Special Investigative Report and such work product cannot be
disclosed simply on a showing of substantial need or inability to obtain the
equivalent without undue hardship.  Upjohn, 449 U.S. at 400; Fed. R.
Civ. P. 26(b)(3)(B).

6.     
Various Handwritten Notes from
Special Investigator Scherer

The Secretary claims
that these notes are protected from disclosure by work product, attorney
client, informant, and common interest privileges.  I need not pass on the
latter three privileges.  The handwritten notes were prepared by Scherer in anticipation
of litigation and the notes record the results of witness leads or interviews
conducted during the course of the special investigation.  Accordingly, the notes
are privileged work product.  The work product privilege is qualified and
subject to disclosure only upon a showing that the requesting party has
substantial need for the material to prepare its case and cannot, without undue
hardship, obtain the substantial equivalent by other means.  See e.g.,
Consolidation Coal, 19 FMSHRC at 1242-43; Fed. R. Civ. P. 26(b)(3),
incorporated by Commission Procedural Rule 1(b), 29 C.F.R. § 2700.1(b).  Respondent
makes no such showing. See R. Mot. at 10.  Further, Respondent has other means
to obtain the same or equivalent information without undue hardship. Respondent
can conduct its own expansive investigation, take its own notes from potential
witnesses, and depose potentially adverse witnesses. As noted, discovery was hardly
intended to enable learned counsel to perform its functions on wits borrowed
from its adversary. Hickman v. Taylor, 329 U.S. at 516.  In the exercise
of my discretion following in camera review, I find that the Respondent has
failed to demonstrate either the substantial need or the undue hardship
necessary to overcome the qualified immunity provided by the work product
privilege. See Brock v. Frank V. Panzarino, 109 F.R.D. at 160.  

7.     
Typewritten Pages Given by Complainant
Whiton to Special Investigator Scherer[4]

The Secretary claims
that this document is protected from disclosure by work product informant, and
common interest privileges.  I need not pass on the latter two privileges,
although I note that the document lists informants and potential informants.  The
document was prepared in anticipation of litigation or for trial on behalf of a
party or that party’s representative. Accordingly, the document is privileged
work product.  The work product privilege is qualified and subject to
disclosure only upon a showing that the requesting party has substantial need
for the material to prepare its case and cannot, without undue hardship, obtain
the substantial equivalent by other means.  See e.g., Consolidation Coal,
19 FMSHRC at 1242-43; Fed. R. Civ. P. 26(b)(3), incorporated by Commission
Procedural Rule 1(b), 29 C.F.R. § 2700.1(b).  Respondent makes no such showing.
See R. Mot. at 10.  Further, Respondent has other means to obtain the
same or equivalent information without undue hardship. Even if Respondent had
made such a showing, the document, apart from the informant and potential
informant contact information, was given to Special Investigator Scherer by
complainant Whiton to support Whiton’s opinion, mental impression, and legal
theory about the case. Such work product cannot be disclosed simply on a
showing of substantial need or inability to obtain the equivalent without undue
hardship.  Upjohn, 449 U.S. at 400; Fed. R. Civ. P. 26(b)(3)(B).

ORDER

Respondent’s Motion to Compel is GRANTED
for the five Memorandums of Interview taken from management agents, with
counsel present. The Secretary is ORDERED to turn these witness statements
over immediately. In all other respects, the Respondent’s Motion to Compel is DENIED.
 The remaining seven Memorandums of Interview are subject to the Jenks
rule.

It is FURTHER ORDERED that the privileged
documents be placed under seal as part of the record for use on any appeal.

SO ORDERED.

/s/
Thomas P. McCarthy

Thomas
P. McCarthy

Administrative
Law Judge

Distribution: (Electronic and First Class Mail)

Donna Pryor, Esq., Jackson Lewis LLP, 950 17th
Street, Suite 2600, Denver, CO 80202

Michele Horn, Esq., U.S. Department of Labor, Office of the
Solicitor, 1244 Speer Blvd., Suite 216, Denver, CO 80204

[1] On January 21, 2016, I
issued an Order of Temporary Economic Reinstatement in Docket No. CENT
2016-0136.

[2] The Jenks Rule
applies to civil proceedings.  See e.g., Thunder Basin Coal Company, 15
FMSHRC 2228, 2237 (1993); Brennan v. Engineered Products, Inc., 506 F.2d
299, 303 (8th Cir. 1974); National Labor Relations Board, Division of Judges
Bench Book, An NLRB Trial Manual, August 2010, § 8-500.  

[3] In Bright Coal,
the Commission found it apparent that the Secretary’s underlying motive for
invoking the executive and work product privilege was to shield the identity of
informants.  Accordingly, the Commission found that the memorandum of interview
issue should be resolved in straight-forward fashion by addressing the issue
solely in the context of the informant’s privilege. See Bright Coal, 6
FMSHRC at 2520 n. 1. There was no discussion of why the Commission’s conclusion
regarding the Secretary’s motive was apparent.

[4] The Secretary’s privilege
log describes this document as an undated, typewritten page, but the document that
was provided for in camera review is a two-page email from Complainant Whiton
to Special Investigator Scherer, incorporating the apparent typewritten
material.