Secretary of Labor v. M-Class Mining, LLC

Plain-English summary

M-Class Mining sought MSHA's open section 110(c) special-investigation file and a deposition of the special investigator while defending four operator citations, three of which remained disputed. Judge Margaret A. Miller denied the motion because possible individual-agent liability was not yet part of the operator penalty cases and MSHA represented that it had already produced the materials relevant to the underlying orders. She found that the requested file was protected by the work-product and informant privileges, and that M-Class had not shown substantial need because it could obtain employee information itself. She also found the investigator's testimony unlikely to be relevant and declined to require a privilege log for the separate investigation. MSHA was nevertheless directed to produce any otherwise discoverable documents created before the special investigation that had not already been disclosed.

Decision snapshot

• Governing rules: 29 C.F.R. §§ 2700.56, 2700.59, and 2700.61
• Outcome: M-Class Mining's motion to compel the open special-investigation file and investigator deposition was denied.
• Key point: Materials from an unfinished section 110(c) investigation may remain outside discovery in the related operator case when agent liability is not yet at issue, privileges apply, and equivalent information is otherwise available.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19th
STREET, SUITE 443

DENVER, CO 80202-2536

TELEPHONE: 303-844-5266
/ FAX:  202-844-5268

June 26, 2014

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION,
(MSHA),

Petitioner,

v.

M-CLASS
MINING, LLC,

Respondent.

CIVIL
PENALTY PROCEEDINGS

Docket
No. LAKE 2013-47

A.C.
No. 11-03189-300361-01

Docket
No. LAKE 2013-123

A.C.
No. 11-03189-303475

Mine:
MC #1 Mine

ORDER DENYING
RESPONDENT’S MOTION TO COMPEL

Before:                        Judge
Miller

These
cases are before me upon a petition for assessment of a civil penalty under
section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
815(d). Respondent, M-Class Mining, filed a Motion to Compel. Subsequently, the
Secretary filed a Response to the Motion.  For the reasons set forth below, I DENY
Respondent’s Motion.

The above captioned dockets include four
104(d)(2) orders issued to M-Class in June and August of 2012. Respondent represents,
in its motion, that the parties reached a settlement of one of the four orders.
Three orders remain in dispute.

In April of 2013 M-Class learned that
MSHA was conducting a 110(c) special investigation into the facts and
circumstances surrounding the three remaining orders. These cases were stayed
until April 1, 2014 in hope that MSHA would be able to complete its investigation
and the 110(c) matter could be consolidated with these cases. However, MSHA was
unable to complete the investigation prior to the expiration of the stay, and these
matters were set for hearing on July 23, 2014. On May 1, 2014 I issued an Order
Denying Motion to Extend Stay explaining that MSHA had ample time to complete its
investigation given that the citations and orders had been issued approximately
two years prior. The Secretary, in his response to M-Class’s Motion to Compel,
indicates that the investigation remains “open” but does not explain the status
of the case.

Prior to the stay of these matters, in
December of 2012, M-Class filed discovery requests with MSHA seeking “all
documents relating to the . . . special investigation of the incident(s) that
is (are), in part, the subject of this matter including but not limited to,
copies of . . . investigators’ notes; photographs; transcripts of interviews;
tapes of interviews, memoranda; reports and draft reports, notes,
correspondence and records of any other MSHA personnel.” Mot. Ex. 1 p. 7. The
Secretary objected to the “vague, overly broad and burdensome” request, which “seeks
to discover information protected by the confidential informant privilege,
attorney-client privilege, attorney work product privilege and deliberative
process privilege.” Mot. Ex. 2 p. 11. The Secretary also responded that the special
investigation being undertaken as a result of the violative conditions found by
the MSHA Inspectors was currently open and active, and therefore, the documents
related to the special investigation would not be produced. Id. at
11-12.

On June 3, 2014 M-Class filed the Motion
to Compel in which it seeks to have the court compel the Secretary to “complete
responses to Respondent’s First Set of Interrogatories and Requests for
Production of Documents and to authorize the deposition of Special
Investigator Robert Bretzman.” Mot. 1. M-Class argues that, while the Secretary
asserts that various privileges apply to the documents sought, he does not
specifically identify those documents and fails to identify the basis for
non-disclosure of the documents in the special investigation file. Id.
at 3. Further, Respondent argues that, because the Secretary has not produced a
privilege log, it is “left to speculate what MSHA is withholding and cannot
evaluate the appropriateness of MSHA’s objects.” Id. at 4. Respondent states
that the Secretary’s assertion of a blanket privilege is inappropriate and that
it is well-settled law that certain documents associated with a Section 110(c)
investigation are discoverable and a blanket refusal to produce any material from
the file is inappropriate. In making its argument, Respondent relies in part on
Judge Feldman’s decision in Root Neal & Company, 21 FMSHRC 135 (July
1999) (ALJ) in which he directed the disclosure of certain documents after the
110(c) investigation had been completed and a decision made that an agent case
would not be pursued by MSHA.  I am not bound by the decisions of other
administrative law judges but, nevertheless, I find that Judge Feldman’s case
is distinguishable from the instant matter. Id. at 838.  Here, the
investigation has not been completed and MSHA has not yet determined whether it
will pursue charges.

On June 9, 2014 the Secretary filed a
response to the motion. The Secretary asserts that the 110(c) “investigation is
currently open, and until such time as the results are reviewed, finalized, and
the decision is made whether to proceed with a case against Respondent’s agents
personally, the Secretary argues that the information contained in the Special
Investigator’s file is subject to privileges outlined in the Secretary’s
response” to Respondent’s discovery request. Sec’y Response 2. The Secretary
also argues that special investigations are conducted by MSHA in anticipation
of litigation and, accordingly, a privilege attaches to the information sought
by Respondent.  Id. Further, because Respondent cannot demonstrate that
it is unable to gather substantially the same information by other means
without undue hardship, the Secretary need not turn over any of the documents
sought. Id. at 2-3. The Secretary also notes that, because the
investigation remains open, counsel for the Secretary is not in possession of
any of the requested documents, and only has the documents pertaining to the
orders at issue in LAKE 2013-47 and LAKE 2013-123, all of which have been
provided to Respondent in preparation for the hearing into the orders in
question. Id. at 3. Finally, the Secretary notes that, at present, the
issue of “whether . . . agents of Respondent willfully disregarded the standards
is not before this court[.]” Id. Rather, the only issues before the
court are whether the alleged violations occurred and if the violations
constituted an unwarrantable failure to comply. Based on the foregoing, the
Secretary asserts that privilege protects the documents sought, and, because
any deposition testimony from Investigator Bretzman would be related to
protected documents, the deposition is unnecessary. Id. at 4.

Commission Procedural Rule 56 permits
discovery by a number of methods, including production of documents and
deposition. 29 C.F.R § 2700.56(a). The rule further provides that parties “may
obtain discovery of any relevant, non-privileged matter that is admissible
evidence or appears likely to lead to the discovery of admissible evidence.”  29
C.F.R § 2700.56(b) (emphasis added). In the event a party fails to respond to a
discovery request, or objects to a request, the party seeking discovery may
petition the court to compel the non-moving party to respond. 29 C.F.R §
2700.59.

Respondent, M-Class, has petitioned the
court to compel the Secretary to produce (1) documents generated as part of
MSHA’s special investigation into potential 110(c) charges against an agent of
Respondent, and (2) the special investigator for deposition. As the Secretary
notes, the investigation into the 110(c) matter is ongoing, and is a separate
matter from the violations that are at issue in this case. I agree with the
Secretary that the documents contained in the special investigation file are
subject to the work product, deliberate process and informant privileges. I
also find that the deposition of the special investigator is not appropriate
given that the information he has gathered is subject to the same privileges. Further,
I find that, given the questioned relevance of the information sought as it
relates to this proceeding, the fact that the investigation has not been
completed, and the ability of the Respondent to obtain substantially the same
information on its own accord, the Respondent’s motion should be denied. Finally,
I noted that, unlike a FOIA request, there is no requirement that a party
responding to discovery prepare a privilege log and particularly prepare a
privilege log for a file that is not a part of the cases at issue here.

It is important to distinguish this
penalty proceeding against the mine operator from potential 110(c) proceedings
against agents of the mine. While run-of-the-mill penalty proceedings against
mine operators are initiated for, among others, the purpose of obtaining judgments
against operators for violations of the Act, 110(c) proceedings are initiated
for the purpose of obtaining judgments against individual agents of a mine. Unlike
standard penalty proceedings, 110(c) charges are preceded by a special investigation
conducted by a MSHA Special Investigator. Generally, the investigation is
initiated following the issuance of citations or orders to the mine operator.  The
investigation commonly includes interviews of employees of the operator, some
of whom may be confidential miner informants. Often, a representative of the
mine is present for statements given to the investigator that are not subject
to the informant’s privilege, and most information obtained through these
interviews is available to the mine operator. The investigation eventually
results in a report and MSHA decision whether to file 110(c) charges. The
special investigation into whether to charge agents is conducted for the sole
purpose of determining whether the agents should be assessed a separate penalty
and, therefore, is undertaken wholly in anticipation of that litigation. While
the two proceedings are frequently consolidated and heard at the same time,
MSHA is often slow in completing its investigation and, in order to keep the
facts and evidence associated with the original violation from becoming stale,
the underlying orders are sometimes heard on their own as any other penalty
case. See e.g., Capitol Cement Corp., 21 FMSHRC 883 (Aug. 1999)

The instant proceedings involve petitions
for penalty filed by the Secretary against Respondent for four alleged
violations of mandatory standards. While the Secretary acknowledges that a
110(c) investigation has been undertaken, the investigation is not complete and
MSHA has yet to reach a decision whether to charge individual agents of the
mine.  As a result, at present, no 110(c) proceeding exists and consolidation
of the issues is impossible. In the event the Secretary completes the special
investigation and an agent case is filed with the Commission, it is possible
that the 110(c) proceeding could be consolidated with the above captioned
dockets and at that time, the special investigation file may be subject to
discovery requests However, until that occurs, the scope of this proceeding is
limited to operator liability for the four alleged violations contained in the
above captioned dockets. Therefore, discovery of the special investigation file
and deposing the special investigator has no place in this case. Instead this
is a normal penalty case and, based on the Secretary’s representation to the
court, all documents relevant to the underlying orders have been produced by
the Secretary.

The Secretary has asserted that multiple
privileges attach to the requested materials. I agree. First, I find that the work
product privilege attaches to the investigatory file documents sought by the
Respondent. In Asarco Inc., 12 FMSHRC 2548, 2557-2558 (Dec. 1990) the
Commission explained that the work product privilege is a “qualified immunity
against discovery.” A party may withhold otherwise discoverable materials if
they are (1) documents and tangible things; (2) prepared in anticipation of
litigation or for trial; (3) by or for another party or by or for that party’s
representative. Id. at 2558; Fed R. Civ. P. 26(b)(3). Here, the
materials sought by M-Class meet all three elements of the test.

The materials sought by M-Class are
documents and tangible things prepared by a party to the case.  The discovery
request seeks, in pertinent part, “all documents relating to the . . . special
investigation of the incident(s) that is (are), in part, the subject of this
matter including but not limited to, copies of . . . investigators’ notes;
photographs; transcripts of interviews; tapes of interviews, memoranda; reports
and draft reports, notes, correspondence and records of any other MSHA
personnel[.]”  Mot. Ex. 1 p. 7. The Commission has acknowledged that it is not
required that the materials “be prepared by or for an attorney.” Asarco Inc.,12
FMSHRC 2548, 2558 (Dec. 1990). Clearly the items sought are documents and/or tangible
things produced by the special investigator or other representative of the
Secretary. I find that the materials meet the first and third elements of the
work product test.

The materials sought were prepared in
anticipation of litigation. The phrase “prepared in anticipation of litigation”
was defined in Hickman v. Taylor, 329 U.S. 495, 505(1947) where the
court framed the issue as being “the basic question” of whether one party's
counsel may “inquire into materials collected by an adverse party's counsel in
the course of preparation for possible litigation.” The Commission has stated
that a “major function of an MSHA special investigation is to determine whether
litigation should be commenced under section 110(c) . . . of the Mine Act.” Asarco
Inc.,12 FMSHRC 2548, 2559 (Dec. 1990). Accordingly, materials generated in
the course of the special investigation are prepared in anticipation of litigation.
Here, the materials contained in the special investigation file were generated,
and are possibly still being generated, in anticipation of potential charges
against individual agents of the mine. The Commission has recognized that,
where “two cases are closely related,” the “documents prepared for one case
have the same protection in a second case.” Id. While MSHA has yet to
decide whether to pursue an agent case, given that any potential agent case
will stem from the facts and circumstances surrounding the orders at issue in
this proceeding, these cases are clearly “closely related.”  As a result, the
protection afforded the materials in the special investigation file, which were
generated in anticipation of a 110(c) proceeding, extends to the instant proceeding,
thereby satisfying the second element of the work product test.

While the materials satisfy the
Commission’s three part test, they may be subject to discovery “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.”
Fed. R. Civ. P. 26(b)(3). I find that no such showing has been made. Respondent
speculates that the information in the file would be beneficial “at trial for
impeachment and refreshing recollection.” Mot. 6. The Commission has
acknowledged that “by itself, the desire to determine through discovery whether
potential impeachment material exists within protected work product does not
constitute a ‘substantial need’ for purposes of the work-product privilege.” Consolidation
Coal Co., 19 FMSHRC 1239, 1243 (July 1997).  Further, and as noted by the
Secretary, the discoverable information contained in special investigation
reports consists of interviews of employees of the mine operator; information
which is certainly possible for the mine operator to obtain on its own accord. I
find that Respondent has not demonstrated a substantial need for the material
in the special investigation file, and the contents of the file are protected
by the work product privilege. Moreover, I find that the special investigator’s
deposition testimony “would only be relevant insofar as being related to the
documents” which I have already found to be subject to work product privilege. Accordingly,
I refuse to compel the Secretary to produce Special Investigator Bretzman for
deposition.

I note that, presumably, the special
investigation file includes documents related to the underlying orders at issue
in the above captioned cases. While that information may be in the special
investigation file, the Secretary represents that all information pertaining to
the orders at issue in these dockets has already been turned over to
Respondent. As a result, I need not compel production of those documents, which
are likely to be duplicative of those already in the possession of Respondent. To
the extent that the Secretary has not turned over discoverable documents
generated prior to the initiation of the 110(c) investigation, he is ordered to
do so.

I
also find that the informant privilege applies to the materials sought by
M-Class. In Bright Coal Co., 6 FMSHRC 2520, 2522 (Nov. 1982) the
Commission recognized that the informant privilege allows the Secretary to “withhold
from disclosure the identity of persons furnishing information of violations of
law to [MSHA].” See 29 C.F.R. § 2700.61 (requiring that a judge “shall
not, except in extraordinary circumstances, disclose or order a person to
disclose to an operator or his agent the name of an informant who is a miner.”)
In Asarco Inc., 14 FMSHRC 1323, 1329-1330 (Aug. 1992) the Commission
explained that the privilege protects from disclosure material that “tend[s] to
reveal an informant’s identity.” Here, the Secretary has asserted that the
information contained in the special investigation file is protected by the
informant’s privilege. As previously stated, special investigation files
routinely contain interviews and statements of miner informants. Undoubtedly,
interviews and statements of miner informants, as well as reports mentioning
the names of those informants, would reveal the informant’s identity and are
subject to the privilege.

The informant privilege may be defeated
if a judge conducts a balancing test and determines that the “respondent’s need
for the information is greater than the Secretary’s need to maintain the
privilege to protect the public interest,” Bright Coal Co. at 2526. I
find that Respondent has failed to make such a showing. Factors to be
considered in conducting this balancing test “include whether the Secretary is
in sole control of the requested material or whether . . . [M-Class] ha[s]
other avenues available from which to obtain the substantial equivalent of the
requested information.” Id. I have already explained that the discoverable
information contained in special investigation files consists of interviews of
employees of the mine operator; information which is certainly possible for the
mine operator to obtain on its own accord. As a result, I find the balance does
not tip in favor of disclosure of the information. Moreover, to reiterate, the
Secretary represents that information in the 110(c) investigation file is not
being relied upon to support the Secretary’s penalty case against the mine
operator. Respondent speculates that the information in the file would be
beneficial “at trial for impeachment and refreshing recollection.” Mot. 6. However,
I find that the need to impeach or refresh the recollection of potential
witnesses does not overcome the Secretary’s need to maintain the privilege to
protect the public interest and is not “essential to fair determination.” Bright
Coal Co. at 2526.

The 110(c) special investigation has not
been completed, MSHA has not decided whether to charge an agent of the
operator, and the issue of agent liability is not before me. Given the
objective of 110(c) investigations and the government’s interest in the
investigation not being obstructed, it would be inappropriate for the court to
compel the production of the investigation documents and deposition of the special
investigator prior to the conclusion of the investigation. Moreover, it would
be inappropriate for the court, prior to the completion of the investigation,
to order an in camera review of the documents for the purpose or
analyzing whether privilege attaches.

With the scope of this proceeding in
mind, I find that, based on the information presently before me, it is unlikely
that the documents and deposition testimony sought in Respondent’s Motion to
Compel are relevant to the above captioned proceeding, and that, even if they
are relevant, as discussed above, they are subject to the work product and
informant privileges. All information necessary for the successful defense of
the orders at issue in this case has been provided by the Secretary and is
otherwise available to the operator through the mine. Additionally, when a mine
operator challenges a citation or order, I assume that they do so in good faith
and that they have investigated the matter and are aware of all of their
defenses to the citation or order. A special investigation into the actions of
an agent of the operator will not alter or add to the reasons the mine has for
contesting the underlying orders.

The threshold issue of any discovery
dispute is whether or not the information sought is relevant. Rule 56 makes
clear that, even in the event that evidence is not privileged, it must still be
relevant in order to be discoverable. Here, the information sought by
Respondent is related to the issue of agent liability. The issue of agent
liability is not before me and, therefore, MSHA’s investigatory documentation
and the investigator’s deposition testimony, which presumably would not include
first-hand knowledge of the events in question, is unlikely to be relevant to
the underlying orders at issue.

Finally, while I find no merit to the Secretary’s
argument that the file is not in the hands of the attorney for MSHA, I find, as
discussed above, that the file is subject to privilege and is not required to
be disclosed. The file contains a separate and distinct investigation, and that
investigation occurred after the violations that are alleged in this case were
issued. While the file is in the hands of the Secretary, it does not, as noted,
contain information that is being withheld, that would be relevant to the
underlying citations at issue in this case. The mine operator can be prepared
for hearing based upon the files in these cases and the information disclosed
by the Secretary without the disclosure of any further material that was
gathered solely for the purpose of determining whether or not a separate
penalty should be assessed against an agent of the operator. However, that file
and information contained therein may be required to be disclosed when and if
an agent case is filed. 

Respondent’s Motion to Compel is DENIED.

/s/
Margaret A. Miller 

Margaret
A. Miller

Administrative
Law Judge

Distribution:

Travis
Gosselin, Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn
St., Room 844Chicago, IL 60604-1502

Christopher
Pence, Hardy Pence, PLLC, P.O. Box 2548, Charleston, WV 25329