Keystone Cement Company

Plain-English summary

Keystone Cement asked the judge to require the Secretary to identify which named witnesses had provided particular interview statements to MSHA. The Secretary had disclosed the potential witnesses and produced interview notes, but redacted each interviewee's identity based on the government informant's privilege. Judge Gary Melick held that the privilege had not been waived and that Keystone had not shown a substantial need for the requested information because it could interview or depose the named witnesses. He denied the motion to compel, while leaving open the possibility of a continuance if Keystone later showed prejudice at trial.

Decision snapshot

• Cited standard(s): The order does not identify a specific Mine Act standard.
• Outcome: The motion to compel disclosure of informant identities and corresponding statements was denied.
• Key point: Disclosure of witness names does not necessarily waive the government's privilege when linking each person to a particular statement could reveal who acted as an informant.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                       OFFICE OF ADMINISTRATIVE LAW JUDGES
                                2 SKYLINE, Suite 1000
                                5203 LEESBURG PIKE
                           FALLS CHURCH, VIRGINIA 22041

                                    February 7, 2000

KEYSTONE CEMENT COMPANY, : CONTEST PROCEEDINGS
Contestant :
v. : Docket No. PENN 99-137-RM
: Citation No. 4439698; 2/9/99
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. PENN 99-138-RM
ADMINISTRATION, (MSHA), : Order No. 4439699; 2/9/99
Respondent : Keystone Cement
: Mine ID No. 36-00125
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : A.C. No. 36-00125-05571
Petitioner :
v. :
:
KEYSTONE CEMENT COMPANY, :
Respondent : Keystone Cement Co.

                    ORDER DENYING MOTION TO COMPEL

    During the course of discovery the Secretary has revealed to Keystone Cement Company

(Keystone) the names of all of her potential witnesses and has produced the notes of interviews
that have been conducted, redacting in each case however the identity of each interviewee
asserting, inter alia, the government informant’s privilege. Keystone seeks, by motion to
compel, the disclosure of the identity of each interviewee and identification with his
corresponding statement.

    The informant’s privilege is the well-established right of the government to withhold

from disclosure the identity of any person who provides information about violations of the law
to law enforcement officials. Roviaro v. U.S., 353 U.S. 53 (1957); Secretary v. Bright Coal Co.,
Inc., 6 FMSHRC 2520 (November 1984). The purpose of the privilege is two-fold: 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 supplying that information from retaliation. Bright,
6 FMSHRC at 2522-2523 (quoting Roviaro, 353 U.S. at 59).

    Keystone argues that by revealing the names of all her potential witnesses, the Secretary

has in fact waived the informer’s privilege. While it is true that the informer’s privilege

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technically extends only to the identity of an informer and not to a known informer’s statement
Keystone does not yet know whether the persons identified as witnesses are “informants” per se.
This is because Keystone does not know whether any of these witnesses spoke disparagingly or
in an incriminating manner about Keystone or others and are thus in need of the protection
afforded by the informant’s privilege. This distinction was noted in Martin v. Albany Business
Journal Inc., 780 F.Supp. 927 (N.D.N.Y. 1992), citing Hodgson v. Charles Martin Inspectors of
Petroleum, Inc., 459 F.2d 303 at 306 (5th Cir. 1972):

           Knowing the identity of persons who have given statements to the
   Secretary is not equivalent to knowledge of which of those persons were
   informers within the context of the privilege. Only when the content of the
   statement is disclosed will it be revealed whether the information was given
   reluctantly or voluntarily, whether the tone and manner in which it was given was
   friendly to the defendant or unfriendly, and whether it was accusatory or
   favorably. In short, if the employee is not known to the defendant as an informer
   but merely as a statement giver, then disclosure of the statement might reveal him
   as an informer. 459 F.2d at 306.

    As the court noted in the Martin case, disclosure of the identity of the statement givers in

association with their statements would reveal for the first time whether any of those witnesses
were “informers,” i.e., speakers who implicated as opposed to mere “statement givers.” As that
court stated, such a disclosure would defeat the very purpose of the informant’s privilege. Since
Keystone does not know which of the witnesses were “informers” as that term relates to the
informer’s privilege there has been no waiver of the informer’s privilege as to their identification
with particular statements.

    Keystone argues that the privilege is, in any event, qualified and must yield where

disclosure is essential to the fair determination of a case. Bright, 6 FMSHRC at 2523 (quoting
Roviaro, 353 U.S. at 60-61). The burden of proving facts necessary to show that the information
sought is essential to a fair determination rests however with the party seeking disclosure.
Secretary v. Asarco, Inc., 12 FMSHRC 2548, 2555 (December 1990) (quoting Bright, 6
FMSHRC at 2526). In Asarco, the Commission reiterated its holding in Bright, stating that the
informant’s privilege is “well-established, but qualified,” and that it is “applicable to the
furnishing of information to government officials concerning possible violations of the Mine
Act.” Asarco, 12 FMSHRC at 2553.

    The privilege is overcome only by a showing that the opposing party’s need for the

information outweighs the government’s need to maintain the privilege to protect the public
interest. Bright, 6 FMSHRC at 2526. Therefore, the opposing party must demonstrate special
circumstances or a substantial need for the information sought. Factors to be considered in
determining whether the information sought is essential to a fair determination include: (a)
whether the Secretary is in sole control of the requested material; (b) whether the material sought
is already within the control of the party seeking it; and (c) whether that party had other avenues
available from which to obtain the substantial equivalent of the requested material. Bright, 6

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FMSHRC at 2526.

    In this regard Keystone makes the following representations:

              In this case, Keystone will be unable to depose several key eyewitnesses to
    the case, the former Murray’s Contracting employees, without knowing which
    employees gave which statements to MSHA. Simply put, this information is
    critical which eyewitnesses saw which events at the time of the accident [citation
    ommitted]. Keystone does not have alternative means of obtaining the same
    information-the Murray’s Contracting employees were the only witnesses to the
    events. Moreover, Murray’s Contracting has ceased operations and its employees
    may not be accessible to Keystone as trial witnesses. Given that those
    individuals’ recollections may be offered at trial by MSHA as hearsay testimony,
    it is all the more critical for Keystone to be able to evaluate the nature of such
    initial statement. Therefore, even if, arguendo, a legitimate claim for privilege
    existed, Petitioner’s need for this information outweighs the Secretary’s need to
    protect it.

    I find Keystone’s claims to be overstated. Keystone has been provided the identities of all

witnesses including the former Murray Contracting employees and is free to interview and/or
depose those persons. In addition, the witnesses are subject to the court’s jurisdiction by
subpoena so that Keystone’s claims that certain persons may not be accessible as trial witnesses is
without substance. Finally, since Keystone has in its possession all of the statements that have
taken from the “informants,” and states that it will be deposing the MSHA inspectors, it now has
or will have available what may be anticipated at trial as hearsay testimony. Keystone may
explore those statements in any event during interviews of the named witnesses. Under the
circumstances I do not find that such circumstances exist as would warrant the disclosure of the
privileged information.

   If, during trial, Respondent can demonstrate prejudice by the failure to have had the

information now sought, an appropriate request for continuance would be considered by the trial
judge at that time.

                                         ORDER

   The Respondent’s Motion to Compel is denied.




                                                  Gary Melick
                                                  Administrative Law Judge
                                                  703-756-6261


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Distribution: (Via Facsimile and Certified Mail)

David Farber, Esq., Patton Boggs, LLP, 2550 M Street, N.W., Washington, D.C. 20037

Gayle M. Green, Esq., Office of the Solicitor, U.S. Dept. of Labor, Gateway Building,
Room 14480, Philadelphia, PA 19104

/mca

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