Secretary of Labor v. Buck Creek Coal, Inc.

Plain-English summary

Buck Creek Coal sought to depose an MSHA supervisory special investigator and obtain investigative materials in consolidated proceedings. The judge found that the investigator was heavily involved in related criminal investigations and that allowing the deposition could harm those matters. The judge barred the deposition until the criminal matters were resolved, denied Buck Creek's motion to dismiss, and ordered the Secretary to submit disputed documents for in camera inspection. The order was procedural and did not decide the underlying citations.

Decision snapshot

• Cited standard(s): The order does not identify a mine safety standard.
• Outcome: The deposition objection was granted, the motion to dismiss was denied, and disputed documents were ordered for in camera inspection.
• Key point: Civil discovery may be limited when it risks harming a related criminal investigation.

Full text (FMSHRC public release)

+FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF A D M INISTRA TIV E LA W JUDGES
                          2 SK YLINE, 10 th FLOOR
                           5203 LEESBURG PIK E
                     FA LLS CHURCH, V IRGINIA 22041

                        October 20, 1995

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 94-72, etc.
Petitioner :
v. :
:
BUCK CREEK COAL, INC., :
Respondent :

            ORDER GRANTING OBJECTION TO DEPOSITION
     ORDER TO PRODUCE DOCUMENTS FOR IN CAMERA INSPECTION

 The Secretary, by counsel, has filed a motion objecting to

the Respondent=s taking the deposition of MSHA Supervisory
Special Investigator Michael G. Finnie. Buck Creek has filed an
opposition to the Secretary=s motion and, further, requests that
the cases against Buck Creek be dismissed for the Secretary=s
failure to make Mr. Finnie and MSHA District Manager Rexford
Music available for deposition. In addition, Buck Creek has
filed a motion to compel production of documents which the
Secretary opposes.1

                   Objection to deposition

 The Secretary originally objected to Mr. Finnie=s deposition

in May 1995 solely on the grounds that he was a manager without
first-hand knowledge of the facts underlying these cases. I
denied the motion holding that A[t]he fact that these individuals
are managers does not mean that they do not have knowledge of the
facts underlying these cases or information that might lead to
the discovery of admissible evidence.@ Buck Creek Coal, Inc., 17
FMSHRC 845, 849 (Judge Hodgdon, May 1995).

 In renewing his objection, the Secretary now asserts that

 1
   Buck Creek filed the original of its opposition and motion

at the Commission office in Washington, D.C. Commission Rule
5(b), 29 C.F.R. ' 2700.5(b), provides that after a judge has been
assigned to a case and before he issues a decision, Adocuments
shall be filed with the Judge.@

Page 2

Mr. Finnie is a supervisory special investigator who is an agent
of two grand juries, one investigating Buck Creek and the other
investigating Pyro Mining Co., and as such he has been instructed
by the U.S. Attorney, pursuant to Rule 6(e)(3)(A)(ii) of the
Federal Rules of Criminal Procedure, that he cannot disclose
anything learned in the criminal investigations. The Secretary
further avers that:

      Mr. Finnie=s only knowledge of Buck Creek that
 could be relevant to the matters before the ALJ is
 based upon the criminal investigation of Buck Creek
 Coal, Inc., and the civil special investigations that
 are ongoing or have been completed by other inspectors.
  The special investigation cases are not before this
 court and involve individuals employed by Buck Creek
 Coal, Inc. Mr. Finnie supervises the investigations
 and does not conduct the investigations.

(Sec. Mot. at 2.)

 Buck Creek implies that since a ruling has already been

issued permitting the deposition of Mr. Finnie, the Secretary
cannot object again. Furthermore, it contends that the discovery
it seeks through the deposition is relevant because:

 Buck Creek intends to explore the Petitioner=s
 enforcement policies pertaining to Buck Creek=s mine or
 similar types of mines, including communications
 between Buck Creek=s and Petitioner=s personnel relative
 to the citations at issue. Also, Buck Creek intends to
 inquire about the bases of and underlying policies for
 the Petitioner=s actions. Ultimately, Buck Creek
 expects to show a lack of factual foundation for the
 citations and the Petitioner=s bias and actual
 motivation in this entire matter.




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Page 3

(Resp. Opp. at 4.) Buck Creek does not explain what it
specifically expects to find out from Mr. Finnie nor does it
address the Secretary=s new arguments.

 The Commission has noted that Acourts do not permit criminal

defendants to employ liberal civil discovery procedures to obtain
evidence that would ordinarily be unavailable in the parallel
criminal case@ and stated that the Ajudge has the power to impose
limitations on the time and subject matter of discovery, which
would permit the civil matter to proceed without harming the
criminal case.@ Buck Creek Coal, Inc., 17 FMSHRC 500, 504 (April
1995) (citations omitted). In this connection, the Fifth Circuit
Court of Appeals has admonished that Athe trial judge in the
civil proceeding should [not] ignore the effect discovery would
have on a criminal proceeding that is pending or just about to be
brought.@ Campbell v. Eastland, 307 F.2d 478, 487 (1962). Some
courts have gone so far as to stay all discovery proceedings
until the criminal case is concluded. United States v. One 1964
Cadillac Coupe DeVille, 41 F.R.D. 352 (S.D.N.Y. 1966).

 In his response to Respondent=s opposition to the renewed

objection to Mr. Finnie=s deposition, the Secretary states that
Mr. Finnie was scheduled to be deposed on June 19, 1995, along
with several other individuals, and that the Adepositions of all
the individuals could not be taken due to a lack of time and not
the refusal of the Secretary to cooperate.@ (Sec. Resp. at 3.)
Another round of depositions was apparently scheduled for the
week of August 21, but Mr. Finnie was not among those scheduled.
On September 14, counsel for the Respondent advised that he
desired to take Mr. Finnie=s deposition on September 18 and 19.
It was at this point that the Secretary raised his renewed
objection.

 There does not appear to be any lack of cooperation or bad

faith on the part of the Secretary in scheduling Mr. Finnie=s
deposition. Nor does there appear to be any reason why the
Secretary cannot renew his objection to the deposition based on
new information. Further, I note that numerous MSHA officials
have already been deposed by the Respondent and the Secretary has
only renewed an objection to one individual.

 When the objection to taking Mr. Finnie=s deposition was

denied previously, it was because the Secretary had not provided
an adequate reason for not permitting the deposition. This time
he has. Mr. Finnie did not issue any of the citations in the
cases before me and apparently did not participate in the
investigation leading to the issuance of the citations. He is,

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Page 4

however, heavily involved in the criminal investigation.
Therefore, I find that the conjectural possibility that he may be
able to provide some information on the citations in issue is far
outweighed by the harm that could result to the criminal case if
his deposition is permitted.

 Accordingly, I GRANT the Secretary=s motion objecting to the

taking of Mr. Finnie=s deposition and ORDER that he may not be
deposed until after the disposition of the criminal matters. In
view of this ruling, the Respondent=s motion to dismiss is
DENIED.2

                    Motion to Compel

 Buck Creek requests that the Secretary be compelled to

provide: (1) Ainspectors= notes prepared during Buck Creek
inspections in which no citations were issued by that inspector,@
(2) Aeleven (11) pages of conference worksheets,@ (3) Atwenty-five
(25) memoranda relating to special investigations and potential
Section 110(c) civil knowing/willful violations@ and (4) the
investigative files in eight Section 110 cases. In his response
to the motion, the Secretary states that the inspectors= notes
were produced on October 10, 1995, Aexcept those documents which
relate to the criminal investigation of Respondent.@ With
respect to the remaining documents, the Secretary asserts that
they come within the Awork-product privilege@ set out in Rule
26(b)(3) of the Federal Rules of Civil Procedure and that, in
addition, 12 of the 25 memoranda and six of the eight Section 110
case files relate to the criminal investigation.

 2
   It appears that the deposition of Mr. Music is scheduled

for October 26 and 27, 1995.

                            4

Page 5

 The Secretary=s claims cannot be properly considered without

an inspection of the documents in question. Accordingly, counsel
for the Secretary is ORDERED to provide me with a copy of each
contested document for my in camera consideration by November 3,
1995. After I have inspected the documents I will issue a ruling
on the Respondent=s motion to compel.

                          T. Todd Hodgdon
                          Administrative Law Judge

Distribution:

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Dept of
Labor, 230 S. Dearborn St., Chicago, IL 60604 (Certified Mail)

Henry Chajet, Esq., Patton Boggs, L.L.P., 2550 M St., NW.,
Washington, DC 20037 (certified Mail)

/lt

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