Sterling Ventures, LLC

Plain-English summary

The Secretary of Labor sought permission to depose Placido (Carlos) Lino, an employee of Sterling Ventures, before starting a proceeding because he might leave the country and become unavailable to the Commission's subpoena power. The request concerned a fatal accident at the mine in which a miner was pulled into a conveyor belt tail pulley. Judge David Barbour found that the Secretary met the five conditions for preserving testimony under Federal Rule of Civil Procedure 27. He granted the petition and authorized questioning about Lino's employment, training, and knowledge of the accident, while noting that the Secretary would provide relevant interview notes and records subject to privilege.

Decision snapshot

• Governing provisions: 30 U.S.C. § 823(d)(1); 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.1(b); 29 C.F.R. § 2700.1(c)
• Outcome: The petition to perpetuate Lino's testimony was granted.
• Key point: The Commission may preserve testimony before an action begins when the petitioner satisfies the demanding conditions modeled on Federal Rule of Civil Procedure 27.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                              1730 K. Street, N.W., 6th Floor
                                 Washington, D.C. 20006


                                     February 11, 2000

SECRETARY OF LABOR, : SPECIAL PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), :
Petitioner : Docket No. S. 2000-1
v. :
:
STERLING VENTURES, LLC, :
and CHRIS PULLIAN :
Adverse Parties :

         ORDER GRANTING MOTION TO PERPETUATE TESTIMONY

    Counsel for the Secretary is seeking an order granting her the right to take the testimony

of Placido (Carlos) Lino, an employee of Sterling Ventures, LLC d/b/a/ Sterling Materials
(Sterling). The testimony relates to circumstances surrounding a fatal accident that allegedly
occurred at Sterling’s mine on December 21, 1999. The accident took the life of a miner who
was working with Lino. According to the Secretary, Lino and the victim were shoveling spilled
material onto a conveyor belt, Lino was called away for a few moments, and the victim was
pulled into the belt’s tail pulley.

    The Secretary investigated the accident and interviewed Lino, who is a citizen of Mexico.

The Secretary issued citations and an order to Sterling. She also interviewed Lino’s and the
victim’s foreman, Chris Pulliam. According to Pulliam’s counsel, during the course of the
interview representatives of the Secretary candidly advised Pulliam he might be subject to
proceedings brought by the Secretary under section 110(c) of the Act for knowing violations of
mandatory safety standards.

     Sterling did not challenge the validity of the citations and the order, and the Secretary has

yet to initiate a penalty proceeding against Sterling or Pulliam. Nevertheless, because she
believes that "Lino may return to Mexico at any time and most likely will be outside of the
subpoena power of the Commission before any discovery can be commenced in any anticipated
litigation", the Secretary requests that she be permitted to depose Lino as soon as possible and
prior to the initiation of any proceeding (Sec. Mem. at 6).

                                             264

   The Secretary’s request was received on February 1, 2000. Because it did not initiate a

proceeding nor relate to one that was pending, it was assigned a special docket number (Docket
No. S 2000-1). Counsels then were contacted by telephone. Counsel for Pulliam was not
available, but counsel for Sterling stated that he would file a response and that he would consult
with counsel for Pulliam about whether he (counsel for Pullian) would file one as well.

    Today, February 11, 2000, at 10:30 a.m., counsel for the Secretary advised me via a

conferenced telephone call that certain "developments" necessitated an expeditious ruling.
Counsel for Sterling added that the company discovered that Lino’s Social Security number did
not "match" his name and that information Lino filed with the Immigration and Naturalization
Service did not appear to be accurate. Counsel for Sterling stated that the company was required
to advise Lino of this, to suspend him from employment, and to give him time to correct or
supplement his records. Counsel for the Secretary voiced concern that upon being suspended
Lino might immediately leave either the country or the jurisdiction.

   I asked counsels for Sterling and Pulliam to file by facsimile copy and as expeditiously as

possible responses to the Secretary’s request. Counsels and I agreed to talk again in an hour, at
which time I would rule orally on the request and following which I would issue a written ruling.

   Counsel for Sterling’s response was received. In it counsel opposed the Secretary’s

request. Counsel for Pulliam’s written response was not received prior to the 11:30 a.m. follow-
up conversation, but in the conversation counsel for Pulliam orally stated his opposition to the
request and expressed his concerns should the request be granted.1

    Counsels for Sterling and Pulliam believe that I am without jurisdiction to order the

deposition because no "proceeding" is pending before the Commission. They maintain section
113(d)(1) and 113(d)(2) of the Act (30 U.S.C. § 823(d)(1) and § 823(d)(2)) when read together
confine the Commission’s authority to "proceedings instituted before the Commission"
(Response of Sterling 1-2), and they argue that there is no provision in the Commission’s
rules for the imposition of an order prior to the institution of a proceeding.

    Counsel for the Secretary notes that Commission Rule 1(b) (29 C.F.R. § 2700.1(b))

requires the Commission and its judges to be "guided" by the Federal Rules of Civil Procedure
on any procedural question not regulated by the Act, and she argues that although the order she
seeks is not provided for by the Commission’s rules, it is allowed by Rule 27 of the Federal
Rules (Sec.’s Mem. 2-6).

   As I orally explained to counsels, I agree with the Secretary. While it is true the

Commission’s rules state they are applicable to "proceedings before the . . . Commission" (29
C.F.R. § 2700.1(a)), they also state that they must be "construed to secure . . . just
determination[s]" (29 C.F.R. § 2700.1(c)). The situation before me is extraordinary, and a just

                                           265

determination well may be thwarted if the Secretary is not afforded the opportunity to prevent
Lino’s testimony from being lost. Federal Rule 27 provides a means for doing just that by
allowing for the perpetuation of testimony in "any matter that may be cognizable". Guided by
Rule 27, I conclude these principles can be applied in an unusual situation such as this where a
matter presently is not able to be brought before the Commission.

    Under Rule 27, the unique nature of the right to depose a person before an action begins

requires the moving party to meet five demanding conditions, all of which the Secretary
successfully has established (See Sec’s Mem. 2-3).2 Accordingly, I conclude the Secretary’s
petition should be and is GRANTED.

                                         ORDER

    Therefore, it is ORDERED that the Secretary be allowed to depose Lino regarding the

dates of his employment at Sterling, the nature and extent of his duties, his knowledge of his and
of other miners’ training while employed, his knowledge of the events and conditions
surrounding the alleged accident of December 21, 1999, and any supplementary matters
necessary for establishing such facts.

   In issuing this order I note the concern of counsels for Sterling and Pulium that prior to

the deposition they be afforded copies of notes in the Secretary’s possession regarding the
Secretary’s interview(s) with Lino and copies of any other records that may bear upon the
content of the interview(s). They stated that such information is necessary if due process is to be
afforded their clients. The problem was discussed with counsel for the Secretary, and she has
agreed to provide such copies, reserving her right(s) of privilege.

   2

           1.) The petitioner must show it expects to be a party to an action but is
   presently unable to bring it or cause it to be brought;
           2.) The petitioner must state the subject matter of the expected action;
           3.) The petitioner must state the facts which the petitioner desires to
   establish by the proposed testimony and the reasons for perpetuating it;
           4.) The petitioner must name or describe the person the petitioner expects
   will be the adverse party and must give the address of the person so far as is
   known; and
           5.) The petitioner must state the name and address of the person to be
   examined and the substance of the testimony the petitioner believes will be
   elicited (See Fed. R. Civ. P 27(a)(1)).

                                           266

   Further, I note that counsel for the Secretary requested and counsel for Sterling orally

agreed to advise Lino that he can expect to be served with a subpoena and to be deposed
regarding the subject accident.

                                                 David Barbour
                                                 Chief Administrative Law Judge

Distribution:

Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Road, Suite B-201, Nashville, TN 37215-2862 (Via Fax and Certified Mail)

Marcus P. McGraw, Esq., Greenbaum, Doll & McDonald, 333 West Vine Street, Suite 400,
Lexington, KY 40507 (Via Fax and Certified Mail)

Billy R. Shelton, Esq., Baird, Baird, Baird & Jones, P.S.C., 841 Corporate Drive, Suite 101,
Lexington, KY 40503 (Via Fax and Certified Mail)

                                           267