Secretary of Labor on behalf of Steve Glosson v. Lopke Quarries, Inc.

Plain-English summary

The Secretary sought discovery in Steve Glosson's discrimination case against Lopke Quarries, including service records for loaders Glosson had operated. Lopke missed extended deadlines, produced incomplete interrogatory answers, and sent unlabeled documents that did not appear to include the requested service records. Judge Priscilla M. Rae ordered Lopke to produce labeled copies of the loader records by the end of the day and immediately make necessary witnesses available for depositions. She denied the Secretary's request to postpone the hearing because four weeks remained if Lopke complied. The discovery and exhibit deadline was extended to February 14, 2017.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(2); 29 C.F.R. § 2700.56
• Outcome: Production of loader service records and deposition witnesses was compelled, while postponement of the hearing was denied.
• Key point: Repeated incomplete discovery responses justified immediate production, but did not require delaying a hearing when compliance could still permit timely preparation.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9956 / FAX: 202-434-9949

January 30, 2017

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH

ADMINISTRATION,
on behalf of

STEVE
GLOSSON,

Complainant,

v.

LOPKE
QUARRIES, INC.,

Respondent.

DISCRIMINATION
PROCEEDING

Docket
No. SE 2017-19-DM

MSHA
Case No. SE-MD-16-09

Mine:
Dunn Construction

Mine
ID: 01-03411

ORDER COMPELLING
PRODUCTION OF DOCUMENTS

ORDER DENYING REQUEST
TO POSTPONE HEARING

This proceeding is before me upon a
complaint of discrimination under section 105(c)(2) of the Federal Mine Safety
and Health Act of 1977, as amended, 30 U.S.C. § 815(c)(2). A hearing is
scheduled for February 28 to March 1, 2017. The Secretary has filed a motion to
compel responses to the Secretary’s Requests for Production of Documents and a
motion to postpone the hearing.

The Secretary’s motion sets forth the
following timeline of events that have occurred during discovery.

On December 6, 2016, the Secretary
served discovery requests on Respondent Lopke Quarries, Inc. (“Lopke”). Lopke’s
responses were due on January 3, 2017. Lopke requested and received an
extension of time until January 6 to respond. On that date, Lopke responded to
the Secretary’s Requests for Admissions but failed to respond to the
Secretary’s Interrogatories or Requests for Production.

During a phone call on January 12,
Lopke’s counsel agreed to provide the outstanding discovery responses by
January 13 in order to allow the Secretary time to prepare for depositions
scheduled for January 25. On January 13, Lopke failed to provide discovery
responses. On January 16, Lopke provided incomplete discovery responses. The
specific deficiencies identified by the Secretary are that Lopke failed to
respond to six of the interrogatories and, in response to the Requests for
Production, submitted unnumbered documents without indicating to which Requests
they were responsive. Sec’y Mot., Ex. G.

During a phone call on January 18, Lopke’s
counsel agreed to postpone the scheduled depositions and provide complete
discovery responses by January 20. On January 20, Lopke failed to provide
discovery responses. On January 23, Lopke again provided incomplete responses
to the Requests for Production and failed to provide any supplemental
interrogatory responses. Sec’y Mot., Ex. I. On January 25, Lopke’s counsel provided
supplemental interrogatory responses and sent a series of emails with documents
attached, but failed to indicate to which requests the documents were
responsive. Sec’y Mot., Exs. L, M. Moreover, the Secretary alleges that none of
the documents appear to be responsive to his specific request for service
records for loaders the Complainant operated while working at the mine. The
Secretary asserts that these records are relevant to Lopke’s allegations that
Complainant was unwilling to safely operate the loaders to which he was
assigned and intentionally damaged the brakes on one of them.

On January 26, the Secretary filed a
motion seeking to compel Lopke to “respond fully to the discovery properly
served in this case.” The Secretary asserts he is entitled to reasonable
development of evidence in support of his case pursuant to Commission
Procedural Rule 56. 29 C.F.R. § 2700.56. Lopke’s failure to provide full and
complete discovery responses has prevented the Secretary from adequately preparing
for trial or depositions or from fully identifying Rule 30(b)(6) deposition
topics. [1]
The Secretary’s motion also requests that the hearing be postponed to April
18-19, 2017 so that he will have time to adequately prepare for and take
depositions.

Counsel for Lopke emailed my office on Friday,
January 27, stating that she would file a response to the Secretary’s motion
“as soon as possible today.” However, my office did not receive a response that
day. This morning (January 30), counsel emailed my office again, stating, “The
Respondent will be filing a motion in opposition today.”

Although I have not yet received Lopke’s
response, this matter requires expeditious resolution because the Secretary has
been waiting several months for opposing counsel to provide the information
necessary to allow him to prepare for depositions and trial. The specific
documents identified by the Secretary that Lopke has not yet produced are the
complete service records for the loaders Complainant operated while at the
mine. Lopke is hereby ORDERED to produce to the Secretary labeled copies of
the service records for the loaders by close of business today, January 30,
2017. In addition, Lopke shall immediately make available any witnesses
the Secretary needs to depose.  

The hearing is scheduled to begin four
weeks from now, on February 28, 2017. Provided that Lopke responds to the
Secretary’s discovery and makes its witnesses available immediately, the parties
still have sufficient time to take depositions. Accordingly, the Secretary’s
request to postpone the hearing is DENIED .

Because Lopke has delayed discovery and
the taking of depositions, the due date for the close of discovery and for the parties
to file copies of their witness lists and exhibits is hereby extended to February
14, 2017 .

/s/ Priscilla M. Rae

Priscilla M. Rae

Administrative
Law Judge

Distribution:

Melanie
A. Stratton, Esq., Office of the Solicitor, U.S. Department of Labor, 61
Forsyth Street SW, Room 7T10, Atlanta, GA 30303

Steve
Glosson, 226 Creel Loop, Brierfield, AL 35035

Diana
R. Schroeher, Esq. & Adele L. Abrams, Esq., Law Office of Adele L. Abrams,
P.C., 4740 Corridor Place, Suite D, Beltsville, MD 20705

[1] Rule 30(b)(6)
of the Federal Rules of Civil Procedure permits a party to name a business
organization as a deponent and requires the named organization to then
designate one or more officers, directors, managing agents, or other persons to
testify on its behalf. Fed. R. Civ. Pro. 30(b)(6); see 29 C.F.R. §
2700.1(b) (applying Federal Rules to this proceeding).