Christopher Pulliam and Deborah L. Pulliam v. Sterling Materials (ALJ decision, May 7, 2014)

Plain-English summary

Sterling Materials sought an audio recording that Christopher Pulliam planned to play at the discrimination hearing, while Pulliam argued that disclosure would identify a miner and risk retaliation. Judge John Kent Lewis held that the miner-informant privilege in Rule 61 belongs to the government and did not apply to a private party's recording. Rule 62 did apply because the recorded miner was expected to testify, but it protected the witness's name and identifying information rather than automatically shielding the recording's entire contents. Because the parties' submissions did not show which portions could safely be disclosed, the judge ordered Pulliam to provide the recording, a line-numbered transcript, and proposed redactions for private judicial review within seven days.

Decision snapshot

• Governing rules: 29 C.F.R. §§ 2700.61 and 2700.62
• Outcome: The complainant was ordered to submit the recording and transcript for in camera review before the disclosure dispute was decided.
• Key point: The government-only informant privilege differs from the miner-witness rule, which protects identity information but does not automatically conceal every statement by an expected witness.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,
SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE:
412-920-7240 / FAX: 412-928-8689

May 7, 2014

CHRISTOPHER
PULLIAM,

Complainant,

v.

STERLING
MATERIALS,

Respondent

DEBORAH
L. PULLIAM,

Complainant,

v.

STERLING
MATERIALS,

Respondent

DISCRIMINATION
PROCEEDINGS

Docket
No. KENT 2013-1045-DM

MSHA
Case No.: SE-MD 13-26

Docket
No. KENT 2014-238-DM

MSHA
Case No.: SE-MD 13-25

Mine
ID: 15-18068

Mine:
Sterling Materials

ORDER TO SUBMIT
AUDIO TAPE AND TRANSCRIPT

FOR IN CAMERA
INSPECTION

Before:
Judge Lewis

These discrimination proceedings are before
me under section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c). On April 16, 2014, Respondent filed a Motion to Compel Production of Audio Recording. The Motion arose after Complaint, Christopher Pulliam, refused to produce an audio recording in response to Respondent’s discovery request. On April 24, 2014, Complainant filed an Omnibus Response to Respondent’s Motion to Compel Production of Audio Recording and Motion for Protective Order.[1]

The Complainant referred to 29 C.F.R.
§2700.61 (“Rule 61” or the “miner informant rule”), 29 C.F.R. §2700.62 (“Rule 62” or the “miner witness rule”), and 29 C.F.R. §2700.5(d) (“privacy considerations”) as the basis for refusing to produce the requested audio tape. Complainant argues that the miner’s name is on the recording, as well as his or her distinctive voice, and that disclosing such information would expose the miner to instant retaliation. The Complainant states that it intends to play the tape at the hearing, as well as call the person speaking on the tape as a witness.

Complainant’s presentation of Rule 61
and Rule 62 for purposes of not producing the audio tape is problematic and often conflates the two privileges. The miner informant rule only applies to the government, and may not be asserted by a private party. In Bright Coal Co., the Commission stated that the “informer’s privilege is the well-established right of the government to withhold from disclosure the identity of persons furnishing information of violations of the law to law enforcement officials.” 6 FMSHRC 2520, 2522 (Nov. 1984) (emphasis added); see also Asarco, Inc., 12 FMSHRC 2548 (Dec. 1990) (reaffirming the rule in Bright Coal Co.). The Commission further stated that the “purpose of the privilege is to protect the public interest by maintaining a free flow of information to the government concerning possible violations of the law and to protect persons supply such information from retaliation.” Bright Coal, 6 FMSHRC at 2522-2523 (emphasis added). In the instant case there is no indication that the tape is a recording of a miner acting as an informant to the government. Therefore, the reliance on Rule 61 is inapposite.

In drafting the Mine Act, Congress
repeatedly placed in the statute provisions that protect miners from discrimination. In addition to Rules 61 and 62, Section 105(c) protects miners in making health and safety complaints, as well as engaging in other protected activities. 30 U.S.C. §815(c). Additionally, §103(g)(1) protects the names of miners and representatives of miners when making complaints to the Secretary concerning violations of the Act or imminent dangers in the mine. 30 U.S.C. §813(g)(1). Though the miner informant rule may only apply to the Secretary, Congress made clear that as a general policy matter, miners who report violations of the Act should be protected.[2]

Complainant makes it clear that it
“fully intends to play this tape at the trial, and call this person as a witness.” Complainant’s Response, at 9. Therefore, it is more properly Rule 62 that is at issue. Rule 62 states, “A Judge shall not, until 2 days before a hearing, disclose or order a person to disclose to an operator or his agent the name of a miner who is expected by the Judge to testify or whom a party expects to summon or call as a witness.” Rule 62 applies to all miners who are called as witnesses, and are not limited to miners who are informants. Secretary of Labor obo Richard M. Bundy v. Kennecott Utah Copper Corp., 2002 WL 1969243, *6. Complainant uses Rule 62 as a blanket exception from releasing any information on the audio tape. However, “it is the name of the informant, not the contents of his statements, that is protected, unless disclosure of the contents would tend to reveal the identity of an informant.” MSHA v. Don Dewild & Keith Buescher, Employed by Mobile Premix Sand & Gravel, 19 FMSHRC 220 (Jan. 1997) (ALJ) (emphasis added).

Complainant’s reliance on Rules 61 and
62 in turning over any of the contents of the audio tape is misplaced.  Though the miner witness rule certainly applies in this instance, it only protects the name and identifying information of the miner. Based on the submissions of the parties, this Court is not able to determine what part of the contents of the tape should be turned over to the Respondent at this stage. As such, an in camera review of the materials is necessary.

Therefore, it is ORDERED that Complainant
shall, within 7 days from this Order, transcribe the audio tape and submit both the tape and transcription for in camera review. The transcription of the audio tape shall be on done on pages with line numbers, and Complainant may submit to this Court a recommendation of information to be redacted should the judge rule in favor of the Motion to Compel, with reference to specific line numbers. Each recommendation should be accompanied by a specific reason, which the judge will consider in making a final decision.

/s/ John Kent Lewis

John Kent Lewis

Administrative Law Judge

Distribution:

Kenneth
R. Reed, PSC, 241 Elm Street, Ludlow, Kentucky 41016

Kevin
L. Murphy, Esq., & Jeffrey Landen, Esq., Graydon Head, 2400 Chamber Center Dr., Suite 300, Ft. Mitchell, KY 41017

Richard
G. Griffith, Esq., Joseph A. Bilby, Esq., & Elizabeth S. Muyskens, Esq.,

Stoll
Keenon Ogden PLLC, 300 West Vine Street, Suite 2100, Lexington, KY 40507

/mzm

[1] In addition to
arguing against production of the audio tape, Complainant’s response also argues against Respondent’s pending Motion for Protective Order, which was also filed on April 16, 2014.

[2] It should be
noted that participating in a Commission proceeding is a “protected activity” under the Mine Act, and if any miner suffers discrimination as a result, he or she would have recourse under Section 105(c).