Asarco, Inc.

Plain-English summary

Asarco operates the Immel underground zinc mine, where an electrician was fatally injured after contacting an energized 4,160-volt terminal. The Secretary cited alleged violations involving deenergization and electrical clearance, and the parties later disputed discovery of MSHA investigative materials. The Commission held that the judge correctly required disclosure of one paragraph from a special assessment review and two passages from an investigator’s notes. It reversed the order requiring disclosure of detailed miner statements and certain questions and answers because Asarco could obtain substantially similar information through other discovery and the judge had misapplied the balancing test for the informant’s privilege. The Commission dissolved its stay of the proceeding and denied Asarco’s sanctions motion.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 57.12017, 57.12019
• Outcome: The discovery order was affirmed in part and reversed in part. The release does not decide a civil penalty amount.
• Key point: Discovery of material covered by the informant’s privilege depends on whether the operator needs the information critically and can obtain substantially similar information by other means.

Full text (FMSHRC public release)

CCASE:
MSHA V. ASARCO, INC.
DDATE:
19920828
TTEXT:
August 28, 1992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v. Docket Nos. SE 88-82-RM
SE 88-83-RM
ASARCO, INC. SE 89-67-M

Before: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners
DECISION
BY THE COMMISSION:
This consolidated contest and civil penalty proceeding, arising under
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. • 801 et seq.
(1988)("Mine Act" or "Act"), concerns a discovery dispute between the
Secretary of Labor and Asarco, Inc. ("Asarco") and is before the Commission
for a second time. Commission Administrative Law Judge Avram Weisberger
issued an Order on Remand on May 20, 1991, in response to the Commission's
prior decision in this proceeding. Asarco Inc., 13 FMSHRC 1199 (May
1991)(ALJ). The judge's order required the Secretary to produce a number of
specific documents notwithstanding her claims of privilege as to those
documents and upheld the Secretary's privilege claims as to other documents.
The Secretary filed a Petition for Interlocutory Review of that part of the
judge's order on remand requiring her to produce all or part of five documents
that she asserts are protected by the informant's privilege. The Commission
granted the Secretary's petition. For the reasons that follow, we reverse the
judge's order in part and affirm it in part.
I.
Factual and Procedural Background
Asarco operates the Immel Mine, an underground zinc mine in Knox County,
Tennessee. A fatal accident occurred at the mine on July 15, 1988, when an
electrician contacted an energized 4,160-volt terminal located inside a
transfer switch cabinet. An inspector of the Department of Labor's Mine
Safety and Health Administration ("MSHA") issued two citations charging
violations of 30 C.F.R. • 57.12017 & 57.12019. The citations allege that the
top terminals in the cabinet were not deenergized and that suitable clearance
~1324
was not provided while the electrician was cleaning the terminals and
insulators.
The discovery dispute began when the Secretary refused to produce, on
the basis of the informant's privilege, the attorney-client privilege and the

Page 2

work product rule, all of the documents Asarco sought in its request for
production of documents. After an in camera examination of the documents,
Judge Weisberger held that certain of these documents were not subject to the
privileges asserted by the Secretary and ordered the Secretary to produce
them. Unpublished Order of September 22, 1989. When the Secretary refused to
comply with his order compelling production, the judge dismissed the civil
penalty proceeding against Asarco. 11 FMSHRC 2351 (November 1989)(ALJ).
The
Secretary filed a Petition for Discretionary Review, which the Commission
granted. On review, the Commission vacated the judge's order dismissing the
civil penalty proceeding, and also vacated that portion of his order of
September 22, 1989, which had directed the Secretary to produce the disputed
documents. Asarco, Inc. 12 FMSHRC 2548 (December 1990)("Asarco I"). The
Commission remanded this matter to the judge for further proceedings
consistent with its decision and its prior decision in Bright Coal Co.,
6 FMSHRC 2520 (November 1984).
Both the Secretary and Asarco filed briefs before the judge on remand.
In his Order on Remand, the judge held that some of the disputed documents
were privileged and not subject to discovery. He also determined that some of
the disputed documents were not protected by the informant's privilege and
ordered the Secretary to produce them. The Secretary filed a Petition for
Interlocutory Review of that portion of the judge's order requiring the
Secretary to produce five documents that she maintains are protected by the
informant's privilege. Asarco filed a statement in opposition to the
Secretary's Petition and a Motion for Sanctions, including dismissal, against
the Secretary for her continuing refusal to comply with the judge's discovery
orders. The Commission granted the Secretary's Petition for Interlocutory
Review.
In its brief on review, Asarco replied to the issues raised by the
Secretary and, in Part II of its brief, further argued that the judge erred in
upholding the Secretary's claim that portions of one document are protected
from disclosure by the attorney-client privilege and the work product rule.
Asarco Br. 12-15. In response, the Secretary filed a motion to strike the
latter portion of Asarco's brief as being outside the proper scope of
Commission review. Asarco responded in opposition to the Secretary's motion
to strike.
The five documents that are the subject of the Secretary's present
appeal and the judge's ruling with respect to each document are as follows:
A. Exhibit B, MSHA Form No. 4000-60 Special Assessment Review
This document is an internal MSHA special assessment form used when the
Secretary proposes a civil penalty under 30 C.F.R. • 100.5. The Secretary
seeks to withhold from Asarco, on the basis of the informant's privilege, only
~1325
numbered paragraph one on page two. The disputed paragraph summarizes the
statement of an individual but does not identify the individual by name.

Page 3

The judge held that the Secretary bears the burden of proving facts
necessary to support the existence of the privilege. 13 FMSHRC at 1200. He
determined that the Secretary did not offer any evidence to show that the
identity of an informant would be revealed by the production of the document.
Id. The judge found as follows:
The statement does not indicate whether the
person who made it is a present or former employee of
Respondent, or whether the individual is an
independent contractor. Petitioner has not alleged,
nor does the record contain any indication of the
number of persons in the job category of the person
who made the statement at issue. Nor is there any
indication of the number of persons who performed the
same task. Hence, I conclude that it has not been
established that the informer's identity would be
revealed by allowing discovery of the statement at
issue. Hence, the Secretary shall divulge paragraph 1
on page 2 of Exhibit B.
Id.
B. Exhibits E, F & G, Detailed Statements of Miners
These three documents are the transcribed notes, in question-and-answer
format, of an MSHA Special Investigator's interviews of three individuals.
The Secretary seeks to withhold all of these documents.
The judge first held that the three statements are "subject to a
qualified privilege." 13 FMSHRC at 1201-02. The judge then found that "the
material consisting of a transcription of [the employees'] detailed extensive
statements, is unique, closely related in time to the instance in issue, and
within the sole control of the Secretary." 13 FMSHRC at 1202 (emphasis in
original). He determined that Asarco "does not have another avenue available
to obtain the transcriptions of the detailed statements" and that "these
statements would enable Asarco to use the material to refresh the recollection
of a witness or to attempt to impeach the credibility of a witness by way of
prior inconsistent statement." Id.
The judge further held that the documents "are essential to a fair
determination of the issues." Id. The judge found that the documents
"contain statements that have a critical bearing on the issues raised by the
citations at issue and possible defenses." 13 FMSHRC at 1203. On that basis,
the judge concluded that "Asarco has a high degree of need to discover these
exhibits" and that "Asarco's need ... outweighs the Secretary's need to
maintain the informer's privilege." Id.
~1326
C. Exhibit K, Notes of MSHA's Special Investigator
This document consists of Special Investigator Everett's detailed notes
of his investigation of this accident. A large part of this document was
previously produced by the Secretary. Only two portions of this document are

Page 4

in dispute in this appeal. First, the Secretary seeks to withhold the first
six words of the seventh line of the paragraph on the middle of page 12 and
the quoted phrase at the end of the paragraph.(Footnote 1) Second, the
Secretary seeks to withhold the list of questions on page 23, and the
responses on page 24 and the first two lines on page 25.
The judge held that the informant's privilege applied to most of the
middle paragraph on page 12 of this document, but held that:
the first six words of the seventh line of that
paragraph, as well as the quoted phrase at the end of
this paragraph contain information that might lead to
a possible defense, without identifying the source of
the information. It is difficult to see how Asarco
could obtain this information without discovery.
Hence, applying the factors enunciated in Bright,
discovery of this deleted material is to be
allowed..."
13 FMSHRC at 1205.
With respect to the questions and answers on pages 23 through 25, the
judge held that in order for Asarco to obtain the specific statements
contained in this material "it would need not only the identity of the
informer, but also the specific questions asked." Id. He concluded that
because this material is relevant to this proceeding and is in the sole
custody of the Secretary, it is subject to discovery under the Bright test.
II.
Disposition of Issues
A. Secretary's Motion to Strike Portion of Asarco's Brief
Section 113(d)(2)(A)(iii) of the Mine Act provides that Commission
review is limited to the questions raised in the petition for discretionary
review. This principle is also applicable to interlocutory review proceedings
conducted pursuant to Commission Procedural Rule 74, 29 C.F.R. • 2700.74.
Commission Procedural Rule 74(d) provides that, if a petition for interlocutory
review is granted, "the scope of review shall be confined to review
of the ruling or order of the judge on the issue stated in the Commission's
order granting review, and shall not extend to other issues." The Secretary's

1 Before the judge, the Secretary sought to withhold the entire paragraph.
The judge held that Asarco was not entitled to discover the remainder of the
paragraph.
~1327
petition for interlocutory review, which the Commission granted, did not seek
review of the judge's attorney-client privilege or work product rulings. In
the present case, the judge's discovery rulings are separate and distinct.
Asarco could have filed a petition for interlocutory review of the judge's
other rulings, in response to the Secretary's motion to strike, at any time.
Since Asarco's brief raises issues concerning the judge's other rulings, which

Page 5

are outside the scope of the present interlocutory review, the Secretary's
motion to strike Part II of Asarco's brief is granted.
B. Informant's Privilege
The principal issue in this case is whether the judge's Order on Remand
complies with the Commission's decision in Asarco I. The Commission must
determine whether the judge abused his discretion in requiring the Secretary
to disclose to Asarco all or specific parts of five documents because the
informant's privilege does not apply or the privilege must yield since
Asarco's need for the document is greater than the Secretary's need to
maintain the privilege.
Discovery before the Commission is regulated by Commission Procedural
Rule 55, 29 C.F.R. • 2700.55. The scope of discovery is specified in
subsection (c):
Parties may obtain discovery of any relevant
matter, not privileged, that is admissible evidence or
appears reasonably calculated to lead to the discovery
of admissible evidence.
The Secretary alleges that each of the disputed passages is protected by
the informant's privilege. Commission Procedural Rule 59, 29 C.F.R.
 2700.59, provides, in pertinent part
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 Bright and Asarco I, we stressed the importance of the informant's
privilege and set forth the specific procedures to be followed if the
Secretary asserts that privilege. Bright, 6 FMSHRC at 2526; Asarco I,
12 FMSHRC at 2553-54. We also held that it is the name of the informant, not
the contents of the statement, that is protected, unless disclosure of the
contents would tend to reveal the identity of the informant. Asarco I, 12
FMSHRC at 2554, citing Roviaro v. United States, 353 U.S. 53, 60 (1957).
In reviewing a judge's discovery rulings, the Commission "cannot merely
substitute its judgment for that of the administrative law judge." Asarco I,
12 FMSHRC at 2555; Rather, the Commission is required "to determine whether
the judge correctly interpreted the law or abused his discretion and whether
substantial evidence supports his factual findings." Id. The Commission
recently reaffirmed that a judge is granted wide discretion in discovery
matters and that his findings will not be disturbed "unless a clear abuse of
~1328
discretion is demonstrated." In Re: Contests of Respirable Dust Sample
Alteration Citations, 14 FMSHRC 987, 1005 (June 1992) ("Dust Sample Case").
The Commission further emphasized:
[W]hen analyzing the manner, content, and effect of a
judge's discovery rulings, the judge, by rule, is authorized
to exercise wide discretion in discovery matters, and the

Page 6

Commission by precedent is disinclined to substitute its
judgment for that of the judge unless error or abuse of
discretion has occurred.
Dust Sample Case, 14 FMSHRC at 1004. The Commission noted, with approval,
that in Federal practice, unless there is a "manifest abuse of discretion" on
the part of a judge, discovery orders are not ordinarily subject to
interlocutory appellate review, and that, if review is ordered, the judge's
orders will not generally be overturned "unless, in the totality of the
circumstances, [the] rulings are seen to be a gross abuse of discretion
resulting in fundamental unfairness in the trial of the case." Id., quoting
Xerox Corp v. SCM Corp., 534 F 2d 1031, 1032 (2nd Cir. 1976) and Voegeli v.
Lewis, 568 F.2d 89, 96 (8th Cir. 1976).
With these guiding principles in mind, we now address the documents in
dispute.

1. Exhibit B - Special Assessment Review
   In Asarco I, the Commission held that an informant's statement is
   protected by the privilege if disclosure would tend to reveal his identity,
   and that whether the informant is identified by name cannot be the sole basis
   for making that determination. 12 FMSHRC at 2554. The Commission concluded
   that the judge erred in his previous order because he failed to determine
   whether release of the document, including the disputed paragraph, would tend
   to reveal the identity of an informant. Id. The Commission vacated the
   judge's order and remanded for further consideration. The Commission stated,
   in relevant part, that the "judge should determine whether release of the
   statement ... would tend to reveal the informant's identity taking into
   consideration the factual context of this case." Id.
   On remand, the judge determined that the Secretary failed to establish
   that release of the document would tend to reveal the identity of an
   informant. 13 FMSHRC at 1200. The Secretary argues that the judge erred in
   his analysis because he failed to recognize that the "words in question
   describe the individual informer" and "the universe of persons fitting that
   description is relatively small." Sec. Br. 10. She bases her argument on the
   consideration that, in her opinion, "it is not seriously contested by Asarco
   that the universe of persons with potentially relevant information in this
   case is other than small in number and known to Asarco." Sec. Br. 10 n. 5.
   In the alternative, she asks the Commission to remand the case to the judge so
   that she can "establish with specific evidence the size of the universe of
   individuals with potential knowledge of facts in this case." Id.
   ~1329
   The Secretary bears the burden of proving facts necessary to support the
   existence of the informant's privilege. Bright, 6 FMSHRC at 2523. In the
   present case the Secretary asserts in her brief that the "universe of persons
   with potentially relevant information about this case" is small in number and
   known to Asarco. Sec. Br. 10 n. 5. Before the judge on remand, she argued
   that it would be "impossible for the Secretary to argue the specific facts of

Page 7

each of these statements to show in the factual context of this case their
revelation would identify the speaker." Sec. Br. on Remand 6. The Secretary
asked the judge to consider the statement contained in the exhibit "in light
of the limited universe of employees who would necessarily possess the
information which the statement reveals." Id. The Secretary did not seek to
present any facts to the judge to establish her claim.
The judge reviewed the document in camera. Following the Commission's
instructions in Asarco I, he determined that release of the statement
attributed to an unidentified informant would not tend to reveal the
informant's identity. He found that, in meeting her burden of proof, the
Secretary did not "proffe[r] any evidence" but "merely asserted" in her brief
that the identity of the informant could be provided by the content and
context of the statement because of the small universe of persons with
knowledge about the relevant events. 13 FMSHRC at 1200. He found that the
Secretary did not establish, and the record did not contain, any indication of
the number of persons in the job category of the informant or the number of
persons who performed the same task. Id. He determined that the Secretary
failed to meet her evidentiary burden of establishing that the informant's
identity would tend to be revealed by the disclosure of the statement. Id.
Because the Secretary bears the burden of proving facts necessary to
support the existence of the informant's privilege, it is not enough for the
Secretary merely to argue that the case involves a small universe of persons
with knowledge of the relevant events. It is the judge, not the Secretary,
who must determine whether the privilege obtains with respect to a particular
document or group of documents and he must be provided with evidence
sufficient to make such a determination. In this case, the judge was required
to determine whether the statement, which did not contain the name of an
informant, would tend to reveal the identity of the informant. Such an
analysis may not be possible unless the party invoking the privilege provides
the judge with facts that explain how disclosure of the subject material would
tend to reveal that informant's identity. In general, a "bald assertion of
privilege is insufficient ... since a trial court must be provided with
sufficient information so as to rule on the privilege claim." 4 J. Moore, J.
Lucas & G. Grotheer, Moore's Federal Practice • 26.60[1] (2d ed. 1991). Thus,
the Secretary had the burden of showing how or why the disclosure of the
disputed text would tend to reveal the identity of the informant.
The Secretary did not present to the judge, either in open court or in
camera, any evidence to support the claimed privilege. Moreover, on remand to
the judge, the Secretary again failed to support her argument with any
evidence. From our examination of the record, it is not readily apparent that
the person to whom the statement is attributed would tend to be revealed by
the contents of the document or the context of the disputed text. Therefore,
given the discretion granted to trial judges in discovery matters, we conclude
~1330
that the Secretary has not demonstrated that the judge committed "a clear

Page 8

abuse of discretion" with respect to this exhibit. Dust Sample Case, 14
FMSHRC 1005. We therefore affirm his order requiring the Secretary to
disclose the disputed language in Exhibit B.
We fully appreciate why the Secretary must exercise care not to identify
an informant inadvertently in presenting facts to prove the applicability of
the privilege in a small universe setting. The Secretary's burden of proving
that a document would tend to reveal an informant's identity, however, is not
necessarily high. For example, an affidavit from an MSHA investigator or
anyone else with knowledge of the facts, setting forth how or why disclosure
of statements of informants would tend to reveal the identity of an informant,
may be sufficient. If the Secretary believes that she must disclose specific
facts to meet her burden in a given case, and that such facts might tend to
reveal an informant's identity, she can submit an affidavit for the judge's in
camera review.

2. Exhibits E, F & G - Detailed Statements of Miners
   In Asarco I, the Commission concluded that the judge failed to consider
   whether the information in these documents could be obtained by Asarco through
   depositions or by other means. 12 FMSHRC at 2556. The Commission also
   concluded that the judge failed to set forth the basis for his conclusion that
   Asarco's need for the information was essential to a fair determination of the
   issues and that its need outweighed the Secretary's need to maintain the
   privilege. Id. The Commission vacated the judge's order and remanded for
   further consideration. The Commission also stated that the judge should
   "weigh the factors set forth in Bright and clearly articulate the basis for
   his conclusion." 12 FMSHRC at 2557.
   On remand, the judge reasoned that "[a]lthough the individuals whose
   statements are the subject of Exhibits E, F, and G, are employees of Asarco,
   and presumably under its control, ... the material consisting of a
   transcription of their detailed extensive statements, is unique, closely
   related in time to the instance at issue, and within the sole control of the
   Secretary." 13 FMSHRC at 1202 (emphasis in original). He held that because
   Asarco does not have any other means of obtaining "the transcripts of the
   detailed statements" at issue, the material would enable Asarco to more
   effectively examine witnesses at the hearing. Id. The judge concluded that
   Asarco's need for the documents outweighed the Secretary's need to maintain
   the informant's privilege. 13 FMSHRC at 1203.
   The Secretary maintains that the judge's conclusion that Asarco is
   entitled to the documents because it would not be able to duplicate the
   precise contents of the documents on its own is "legally insupportable and
   would, if accepted, effectively eviscerate the informer's privilege." Sec.
   Br. 11-12. The Secretary emphasizes that the judge failed to comply with the
   Commission's instruction to consider whether Asarco could obtain
   "substantially similar information from other sources." Sec. Br. 12. The
   Secretary maintains that Asarco could get essentially the same information by
   deposing those miners who may have knowledge of the relevant events.

Page 9

~1331
Sec. Br. 13. Finally, the Secretary argues that the judge failed to
appreciate that, pursuant to Commission Procedural Rule 59, the judge may
compel the Secretary to disclose, two days prior to hearing, the names of all
persons the Secretary expects to call as witnesses and that he may also order
the Secretary to produce the statement of any informant who is actually called
as a witness. Sec. Br. 12.
We hold that the judge incorrectly interpreted the law and abused his
discretion. First, the judge erred in basing his order on the fact that the
Secretary was in sole control of the requested material -- the documents
themselves -- rather than the information contained in the documents. In its
remand, the Commission directed the judge to consider "whether Asarco could
obtain substantially similar information from other sources" 12 FMSHRC at
2556. The judge based his decision on a finding that the documents themselves
are unique and within the sole control of the Secretary. The issue, however,
is whether Asarco can get substantially the same information by deposing those
miners who have knowledge of the accident. See Bright, 6 FMSHRC at 2526. The
judge did not enter any findings with respect to this issue except that Asarco
"might, by way of deposition, have access to information within the knowledge
of these persons." 13 FMSHRC at 1202. By focusing on the fact that the
documents are "unique," the judge erred as a matter of law. While we agree
with Asarco that the Commission cannot merely substitute its judgment for that
of the judge, Asarco has access to the same individuals with knowledge of the
accident as the Secretary's investigators and can question them in the same
manner, under subpoena, if necessary.
Second, as the Secretary pointed out, the judge failed to recognize that
Asarco will be able to obtain the names of the Secretary's witnesses two days
before the trial and that any statement of a miner who is called as a witness
may be obtained for the purpose of refreshing his recollection or impeaching
his credibility at the trial. In Asarco I, the Commission noted that "this
case concerns Asarco's requests for documents during the discovery phase of
this proceeding" rather than Asarco's right to documents, otherwise protected
by the informant's privilege, relating to the testimony of a witness at the
time of trial. 12 FMSHRC at 2561 n. 3 (emphasis in original). As set forth in
Asarco I, however, Asarco's right to these documents at the time of trial is a
separate and procedurally distinct issue from the discovery issue presented
here. See, e.g., Brennan v Engineered Products, Inc., 506 F. 2d 299, 302-03
(8th Cir. 1974). The judge erred in concluding that Asarco's need for the
documents is greater than the Secretary's need to maintain the privilege,
based on his conclusion that Asarco may need them in examining witnesses at
the hearing. Asarco's need for the documents at the hearing should be
resolved by the judge at that stage of these proceedings.
Third, in analyzing whether these documents are essential to a fair
determination of the issues, the judge determined that the exhibits "contain
statements that have a critical bearing on" the issues in the case. 13 FMSHRC

Page 10

at 1203. Because substantially the same information is available to Asarco by
other means, as discussed above, disclosure of these documents is not
essential to a fair determination of the issues. In contrast, the operators
in the Dust Sample Case demonstrated a compelling need for scientific studies
~1332
that were within the scope of the deliberative process privilege, because, in
part, those studies may play a unique and significant role in that case. 14
FMSHRC at 994-95. The Secretary was in sole control of those studies, and
the operators could not obtain substantially the same information by deposing
the appropriate individuals.
The judge's failure to comply with the balancing test set forth in
Bright and Asarco I constitutes a clear abuse of discretion in contravention
of Commission Procedural Rule 59. For the foregoing reasons, the judge's
order with respect to these exhibits is reversed.

3. Exhibit K - Special Investigator's Notes
   Because the judge failed to rule on the informant's privilege issues in
   his prior order, the Commission remanded "this issue to the judge for his
   reconsideration in accordance with [Asarco I] and Bright." 12 FMSHRC at 2557.
   a. Material on page 12
   The disputed paragraph on page 12 is the special investigator's
   description of a conversation that he had with an individual during his
   investigation of the accident. On remand, the judge determined that much of
   the paragraph should be withheld from Asarco, but he held that two passages of
   this paragraph did not identify the source of the information and that Asarco
   could not otherwise obtain this information. 13 FMSHRC at 1205. Thus, the
   judge determined that the informant's privilege does not apply to the disputed
   passages within this paragraph because they do not identify the source of the
   statements. Although he did not state so expressly, the judge determined that
   the Secretary failed to meet her burden of showing that the release of the
   passages would tend to reveal the identity of a miner informant. The judge's
   analysis is somewhat confusing, however, because he also performed a Bright
   balancing test, which is applicable only when the judge has determined that
   the material is subject to a qualified privilege.
   The Secretary contends that release of the phrases in question "would
   almost certainly" reveal an informant's identity, given "the small universe of
   those individuals who might have relevant information." Sec. Br. 14. In
   addition, she argues that the judge erred in concluding that the privilege
   should yield because Asarco would not be able to "obtain this information
   without discovery." Id., quoting 13 FMSHRC at 1205. She contends that the
   judge's holding demonstrates that he failed to comply with Asarco I's
   direction to evaluate whether Asarco had "other avenues available from which
   to obtain the substantial equivalent of the requested material." Id., quoting
   12 FMSHRC at 2555. She also maintains that the judge's holding suggests he
   believed that, with appropriate discovery, Asarco could effectively obtain
   this material.

Page 11

As with exhibit B, discussed above, the Secretary has asserted without
any proof that release of the passages would reveal the informant's identity
because of the small universe of individuals who might have relevant
information. It is not readily apparent to us that the specific language of
the disputed passages would tend to reveal the identity of an informant. It
~1333
is also not apparent that Asarco could determine the source of the statements
by examining other parts of Exhibit K, previously supplied by the Secretary.
As stated above, a bald assertion of privilege is inadequate because the trial
court must be provided with sufficient facts to rule on the claim of
privilege. For the same reasons set forth with respect to Exhibit B, we
affirm the judge's holding.
The Secretary has failed to show that the judge's order is a clear abuse
of discretion. The Secretary had two opportunities in this proceeding to
provide evidence to the judge in support of her argument that, because the
universe of persons with knowledge of the facts in this case is small,
disclosure of the statement of an unnamed informant would tend to reveal the
identity of an informant. As stated above, this evidentiary burden is not
high. An affidavit from an MSHA investigator or anyone else with knowledge of
the facts would generally be sufficient and the Secretary may request that the
judge review such evidence in camera. A separate affidavit would generally
not be required for each document, unless the facts giving rise to the
assertion of the privilege differ significantly.
Finally, we note that the Secretary argued before the judge that the
entire paragraph containing these passages should be protected by the
privilege. The judge protected from disclosure those portions of the
paragraph that contain the name of the informant and allowed discovery of two
passages that do not contain the informant's name. Notsithstanding our
affirmance, we underscore that better judicial practice dictates that a judge,
before ruling against the Secretary's assertion of privilege, should generally
consider providing the Secretary an opportunity to supplement the record with
such evidence as she deems appropriate. This practice is particularly
advisable before a judge orders discovery of disputed material after deleting
information that identifies the informant. The judge's failure to provide the
Secretary with an additional opportunity to present such evidence in this case
is not a clear abuse of discretion because, as stated above, the Secretary had
an additional opportunity after remand to provide evidence to support her
claim of privilege on the basis of the small universe argument, and failed to
do so.
b. Material on pages 23 - 25
This material consists of a list of questions asked of an informant, who
is identified by name, and the answers. The judge determined that the
specific questions asked, as well as the answers supplied, are in the sole
custody of the Secretary. 13 FMSHRC at 1205. He held that "inasmuch as the
information relates to the circumstances surrounding [one of the citations],

Page 12

the information would be relevant in resolving the issues and might lead to a
possible defense." 13 FMSHRC 1205-06. He concluded that under the Bright
balancing test the material is subject to discovery. 13 FMSHRC at 1206.
The Secretary argues that the judge's analysis is legally insupportable
because it is based on the premise that Asarco is entitled to know what
questions to ask the informant in order to elicit the same responses. She
maintains that an in camera examination of the disputed material by the
Commission will reveal that the "information contained in it would be readily
~1334
reproducible by even the most pedestrian questioning of the individual by a
competent legal representative...." Sec. Br. 16. The Secretary states that
Asarco could obtain substantially similar information from other sources and
that Asarco has not met its burden of proving facts necessary to show that
release of the material is essential to a fair determination of the issues.
Id.
Because the material does reveal the identity of an informant, the judge
was required to determine whether Asarco's need for the information was
greater than the Secretary's need to maintain the privilege. Asarco had the
burden of showing a critical need for this information. The judge's holding
with respect to this material is similar to his holding for Exhibits E, F and
G, described above, that, because the Secretary is in sole possession of the
documents themselves, Asarco has no other way to obtain the information
contained therein. For the reasons set forth above with respect to Exhibits E
through G, we conclude that the judge erred and abused his discretion. The
Secretary is not in sole control of this information. Because Asarco could
obtain similar information from other sources, the disclosure of these
passages are not essential to a fair determination of the issues.
The judge's failure to comply with the balancing test set forth in
Bright and Asarco I constitutes a clear abuse of discretion in contravention
of Commission Procedural Rule 59. For the foregoing reasons, the judge's
order with respect to the questions and answers on pages 23 through 25 is
reversed.
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III.
Conclusion
For the reasons set forth above, we affirm that portion of the judge's
Order on Remand that required the Secretary to disclose to Asarco numbered
paragraph one on page two of Exhibit B and two phrases on page 12 of Exhibit
K. We reverse that portion of the judge's Order on Remand that required the
Secretary to disclose Exhibits E, F, and G and the questions and answers on
pages 23 through 25 of Exhibit K.(Footnote 2) We hereby dissolve our order of
July 24, 1991, staying this proceeding.
Ford B. Ford, Chairman
Richard V. Backley, Commissioner
Joyce A. Doyle, Commissioner

Page 13

Arlene Holen, Commissioner
L. Clair Nelson, Commissioner

2 Asarco's motion for sanctions against the Secretary for filing the Petition
for Interlocutory Review in the proceeding is hereby denied.