Asarco, Incorporated v. Secretary of Labor

Plain-English summary

Asarco contested citations involving alleged violations at its Immel Mine after a fatality. The Secretary sought depositions, interrogatory answers, and documents about the mine's compliance history, policies, management structure, and investigation. Judge Avram Weisberger required the Secretary to designate knowledgeable representatives, produce or answer many requested items, and allow an inspection of the mine and accident site. He sustained an objection to one interrogatory, protected the names of miner informants, and set deadlines for the ordered discovery.

Decision snapshot

• Governing provisions: 30 C.F.R. § 57.12017, 30 C.F.R. § 57.12019, and 29 C.F.R. § 2700.59
• Outcome: Discovery was ordered in substantial part, one interrogatory objection was sustained, and protections for miner informants were maintained.
• Key point: Discovery in a Mine Act civil proceeding may reach agency policies and investigation materials when the requests are relevant and reasonably calculated to lead to admissible evidence.

Full text (FMSHRC public release)

CCASE:
ASARCO V. SOL (MSHA)
DDATE:
19890712
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

ASARCO, INCORPORATED, CONTEST PROCEEDING
CONTESTANT
Docket No. SE 88-82-RM
v. Citation No. 3252969; 7/16/88

SECRETARY OF LABOR, Docket No. SE 88-83-RM
MINE SAFETY AND HEALTH Citation No. 3252970; 7/16/88
ADMINISTRATION (MSHA),
RESPONDENT Immel Mine
MINE ID 40-00170

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. SE 89-67-M
PETITIONER A. C. No. 40-00170-05520

      v.                             Immel Mine

ASARCO, INCORPORATED,
RESPONDENT

                             ORDER

                               I.

 On April 12, 1989, the Secretary (Petitioner) served ASARCO

(Respondent) with a Deposition Notice and Request for Production
of Documents. The Notice requested the Respondent to designate
representatives to testify, in essence, as to the Tennessee Mines
Division's history of compliance with various standards of the
Federal Mine Safety and Health Act and applicable regulations, as
well as its safety policies and procedures, management structure
and responsibility for determining electrical maintenance
procedures and policies, and the factual events leading up to the
death of Ronald Miller on July 15, 1988, and ASARCO's actions
immediately following the fatality. In addition, Petitioner
requested depositions be taken of certain enumerated individuals
including Fred Cain, John Ellis, John Jacques, Don Walter, and
Jim Bales.

 On April 21, 1989, Respondent filed a Motion for Protective

Order. In its Motion, Respondent seeks protection from the
depositions of a corporate designee along with the following
individuals Cain, Ellis, Walter, Bales and Jacques. In essence,

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Respondent indicates that its "would be," corporate designee
Donald R. Ledbetter was deposed on October 12, 1988, and
testified regarding all the matter requested by Petitioner, and
that Petitioner extensively cross-examined him, and that deposing
another corporate representative would "contribute nothing to
resolving the Secretary's questions . . . . " Respondent also
alleges, in essence, that nether Cain, Ellis, Walter, Bales, nor
Jacques have personal knowledge of the circumstances of the
incident in question nor could they testify as to ASARCO's
relevant electrical policies and procedures.

 On May 12, 1989, Petitioner filed a response to Respondent's

Motion for a Protective Order. Along with its response it
attached a copy of Ledbetter's Deposition.

 On May 15, 1989, Respondent filed a statement in which it

indicated that, pursuant to an understanding it reached with
Petitioner's Counsel, its reply to Petitioner's opposition to its
Motion for Protective Order would be filed on or before May 31,
1989. On June 1, 1989, Respondent's reply to the Secretary's
response to its Motion for Protective Order was filed.

 The subject citations which are being contested by

Respondent in the above captioned cases, allege violations of 30
C.F.R. 5712017 and 5712019, and that the violations therein
resulted from Respondent's high negligence. Accordingly, it is
clear that an examination of Respondent's representatives with
regard to the matters set forth in Petitioner's Motion, is
relevant to these proceedings. It is manifest that an examination
with regard to the events leading up to the cited incident and
ASARCO's actions immediately following the incident, as well as
an examination as to Respondent's policies and procedures and
management structure as well as its history of compliance with
various regulations, would be relevant to the issue of its
negligence, which is a factor to be considered in determining the
amount of a penalty to be assessed, should it be found that
Respondent has violated a mandatory safety standard. Thus,
pursuant to Rule 30(b)(6) of the Federal Rules of Civil
Procedure, Respondent shall designate a representative or
representatives to testify as to the matters set forth in
paragraph 1.(a-d) and produce the documents set forth in
paragraphs i, ii, and iii of Deposition Notice and Request for
Production of Documents. The fact that Ledbetter had already been
deposed by Respondent, and cross-examined by Petitioner, shall
not serve to deprive Petitioner of its right to prepare for trial
by examining Respondent's representatives who have knowledge of
the matters set forth in paragraph 1 of Petitioner's Notice.

 Aside from asserting that Cain, Ellis, Jacques, Walter, and

Bales ". . . represent an apparent chain of authority of ASARCO's
Immel Mine, one leading ultimately to Ronald Miller, the miner

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who was killed," Petitioner does not set forth any facts to
support a conclusion that an examination of these individuals
would be relevant to the subject matter involved in the pending
action. Indeed, there are no facts presented to conclude that an
examination of these individuals is reasonably calculated to lead
to a discovery of admissible evidence. Respondent has asserted
that the enumerated individuals, in essence, do not have
knowledge of the matters set forth in Petitioner's Notice.
However, aside from its own assertion, there are no affidavits
setting forth any facts to support these assertions. I thus
conclude that there are not sufficient facts set forth before me
to conclude that an examination of the above enumerated
individuals would be relevant to the subject matter at hand.
However, should it appear from the deposition of the individual
or individuals designated by Respondent, and examined pursuant to
this Order, that other individuals have knowledge of the matters
sought to be deposed as set forth in Petitioner's Notice, then
Petitioner shall be afforded the right to depose these
individuals.

 Inasmuch as Petitioner, in its response to Respondent's

Motion, indicated that it has withdrawn the request made in its
Notice that Larry E. Thomas be present at the time of a requested
inspection of the mine and accident site, it appears from
Respondent's reply that it no longer objects to Petitioner's
request to inspect and photograph the mine and accident site.
Accordingly, this request is GRANTED and it is ORDERED that
Respondent permit the Petitioner to inspect the subject mine and
accident site, and photograph the same, and such inspection is to
be performed at a time to be agreed upon by Counsel for both
Parties. It is further ORDERED that Respondent shall produce for
deposition all individuals having knowledge of the matter set
forth in paragraph 1 of Petitioner's Notice, and these
individuals shall produce all documents referred to in paragraph
1 of Petitioner's Notice. The depositions are to be taken within
10 days of this Order, unless the Parties agree upon an
extension, at a site to be mutually agreed upon.

                              II.

 On March 9, 1989, Respondent served upon Petitioner a First

Set of Interrogatories requiring an answer and response on or
before 15 days after service. On April 21, 1989, Respondent filed
a Motion for an Order to Compel Answers to Interrogatories. On
May 12, 1989, Petitioner filed its Answers to Respondent's First
Set of Interrogatories. In its Answer it objected to a number of
the Interrogatories. On June 1, 1989, Respondent filed a Motion
to Compel Answers to Interrogatories. Petitioner did not file any
response to this Motion.

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a. Interrogatory No. 2

    Interrogatory No. 2 requests as follows:

         Please state the names, addresses, and employment
         positions of each person assisting in any way, directly
         or indirectly in the preparation of the answers to
         these Interrogatories, and state the answer(s) which
         each person so listed has assisted in preparing.

 Petitioner in its response has indicated that a Mr.

Daugherty in answering the Interrogatory was assisted by an
attorney for the Secretary and "These communications are
privileged pursuant to the attorney-client privilege." It should
be noted that Respondent does not seek to discover any
communications between the attorney for the Secretary of Labor
and his client. The Interrogatory merely request the
identification of any person assisting in the preparation of
Answers to the Interrogatories. As such a response to
Interrogatory No. 2 does not violate an attorney-client privilege
and should be answered.

    b. Interrogatory No. 7

 Interrogatory No. 7 requires the listing by name of each

person the MSHA Inspectors contacted in the course of the MSHA
investigation prior to and after the issuance of each of the
citations in issue. Petitioner as a response indicated that
"Contacts after the initiation of these proceedings would be
privileged as "work product' under Rule 26(b)(3), Fed. R. Civ.
P."

 This Interrogatory, in essence, seeks the identity of

persons contacted by an MSHA Inspector, rather than material
prepared by Counsel in preparation of trial. As such, the listing
of names would be beyond the "work product" protection (see cases
cited in Moores Federal Practice at 26-354, 355).

 In its Answer, Petitioner further indicates that

"consultation with miners and informants would be nondiscoverable
except as provided under Commission Rule 59." In this connection,
Respondent has requested that information requiring informants be
provided 2 full days before the hearing pursuant to 29 C.F.R.
2700.59.

 Section 2700.59, supra, prohibits the disclosure of names of

miners who are informants, except in "extraordinary
circumstances." Respondent has not alleged any extraordinary
circumstances herein. Accordingly, in complying with
Interrogatory No. 7, Petitioner shall not divulge names of
informants who are miners. Also, pursuant to Section 2700.59,
supra, Petitioner, in answering Interrogatory No. 7, shall, 2
days prior to the hearing, disclose the names of miners who are
expected to testify at the hearing.

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c. Interrogatory No. 11

    Interrogatory No. 11 requests as follows:

         Please state, if not in writing and subject to one of
         the following requests for production, MSHA's policy or
         policies regarding (a) findings of high negligence; (b)
         interpretation of 30 C.F.R.   57.12017; and (c)
         interpretation of 30 C.F.R.   57.12019.

 Petitioner's response to this interrogatory was as follows:

"None." Respondent in its Motion argues as follows: "It is
unclear whether "none' means none exist, or none exist other than
those in writing and not produced pursuant to the request for
production." Accordingly, Respondent's position, in the interests
of justice, is sustained, and Petitioner shall clarify, in its
response to Interrogatory No. 11, whether MSHA does not have any
policy with regard to matters referred to in Interrogatory No.
11, or whether it does not have any such policy other than those
in writing and not produced pursuant to the request for
production.

    d. Interrogatory No. 14

 Interrogatory No. 14 which was objected to by Petitioner on

the ground that it was not relevant nor would it lead to relevant
evidence, requires the identification of individuals who
initiated, consulted on, and/or participated in the special
assessment of civil penalties relating to the citations in issue
and a description of their roles in the assessment process.
Respondent's position is that the request for these names is
relevant as they are the ones who determined the penalty which is
a relevant issue to the case at bar. Inasmuch as the Commission
has the authority, de novo, to assess all civil penalties
provided for in the Federal Mine Safety and Health Act of 1977,
based upon factors enumerated in section 110(i), supra, it is
clear that the identity of individuals who participated in the
special assessments of civil penalties would not be relevant to a
decision by the Commission. Such a decision, on the issue of a
penalty is to be based upon the factors in section 110(i) of the
Act, which have to be established in an evidentiary hearing.
Further, aside from indicating that those who participated in the
special assessments are the very ones who determined the penalty
found by MSHA herein, Respondent has not articulated in what
fashion the identity of these individuals would be reasonably
calculated to lead to the discovery of evidence which would be
relevant to the establishment of any of the factors set forth in
section 110(i) of the Act, and thus a resolution of the issue of
a penalty to be set by the Commission. (c.f. see cases cited in
Moores Federal Practice, supra, at 26-96.) As such, the objection
of Petitioner to Interrogatory No. 14 is sustained.

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e. Interrogatory No. 16

    Interrogatory No. 16 requests as follows:

         Identify the individuals who initiated, consulted on
         and/or participated in the special investigation of the
         alleged violations which are at issue in this
         proceeding and describe each of their roles in the
         special investigation.

 Petitioner has objected to this Interrogatory on the ground

that it is not relevant nor would it lead to relevant evidence.
In the alternative Petitioner asserts that in order to avoid the
appearance of impropriety and protect the rights of the
individuals who many be targeted for investigation under criminal
provisions of the Act, it has kept the civil proceedings
segregated from any criminal investigation.

 Respondent has alleged, that the investigation involved the

same subject matter as that involved the incident proceeding.
This allegation has not been contested by Petitioner. Further,
Petitioner has indicated that the criminal investigation has been
completed. Also, importantly, it is clear that the Petitioner's
interest in avoiding ". . . the appearance of impropriety and
protect the rights of those individual who may be targeted for
investigation under criminal provisions of the Act," would not be
thwarted by identifying individuals who "initiated, consulted on,
and/or participated," in the special investigation. Respondent
has not requested, and no identification shall be allowed, of any
list or identification of those individuals who may be the target
of or subject of the investigation. Hence, Petitioner shall
answer this Interrogatory.

 Thus, it is ORDERED, that within 10 days of this Order,

Petitioner shall serve Respondent with a full and complete answer
to Interrogatories 2, 7, 11, and 16. It is further ORDERED that
Petitioner's objection to Interrogatory No. 14 is sustained.

 It is ORDERED that, with regard to Interrogatory No. 7,

Petitioner shall not divulge names of informants who are miners.
Also, pursuant to section 2700.59, supra, Petitioner, in
answering Interrogatory No. 7, shall 2 days prior to the hearing,
disclose names of miners who are expected to testify at the
hearing.

                                 III.

 On March 9, 1989, Respondent served Petitioner with a

Request for Production. On April 21, 1989, Respondent filed a
Motion for Order to Compel Document Production. On May 12, 1989,
Petitioner

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filed its Responses and Objections to Respondent's Request for
Production of Documents. On June 1, 1989, Respondent filed a
Motion to Compel Production of Documents.

 In essence, Respondent's requests one through four require

the production of documents pertaining to Petitioner's
enforcement policies for Respondent's mine including documents
exchanged between various MSHA personnel, contacts between MSHA
personnel and Respondent with regard to its violations and
documents received by MSHA personnel or provided by these
personnel to various investigative agencies concerning alleged
violations or mining practices of Respondent. Also requested were
any documents pertaining to the initiation, criteria, review, and
processing of special assessment violations during the past 2
years. In Respondent's Motion to Compel Production of Documents
it indicates that the latter request (request No. 3) seeks not
all individuals special assessment documents "but rather the
policies underlining them."

 In essence, Petitioner refuses to respond to these requests

on the ground that it does not have any enforcement policies
peculiar to one operator, and if it did have such policies they
would not have any relevance to the instant, de novo, proceeding.
In addition, Petitioner argues that the requests are so broad "as
to be impossible to comply with," and as to be "unduly
burdensome."

 In general, in order to eliminate surprise and allow the

Parties to adequately prepare for trial, in general, the rules of
discovery should be broadly applied (see, Hickman v. Taylor, 329
U.S. 495 (1947)). Further, Rule 26(b)(1), supra, provides for the
discovery of material which is "relevant to the subject matter."
It is not necessary for the matter sought to be discovered to be
admissible in evidence as long as it is reasonably calculated to
lead to the discovery of admissible evidence (see cases cited in
Moores Federal Practice, supra, at 26-96). In this connection,
Respondent has alleged that the information sought is ". . .
essential to explore and expose bias, undercover the bases for
agency's actions and reveal potential exculpatory information."
Respondent has also indicated that request No. 3 does not require
the production of all individual special assessment documents,
but is limited to the production of policies underlining them.
Accordingly, I conclude that the information sought in requests 1 -
4 are relevant.

 Petitioner in its objection to request No. 2 argued that the

request seeking documents made from contacts with MSHA personnel
and "hourly personnel," regarding Respondent's operations seeks
documents which "will or could identify miners" in violation of

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Rule 59. Thus, in complying with request No. 2 the Petitioner
shall not disclose, until 2 days before the hearing, the name of
any miner who was expected to testify at the hearing, nor shall
it disclose the name of any informant who is a miner, unless the
Respondent establish the existence of "extraordinary
circumstances."

 Respondent also requested documents initiating the special

investigation, documents initiating and relating to the special
assessment, and relating to the special investigation of the
events of July 15, 1988. Petitioner essentially argued that these
requests are overly broad and that the matters sought to be
disclosed are not relevant. In addition, with regard to the
request for production of documents relating to the special
investigation of the events of July 15, 1988, Petitioner
incorporated the objections that it had made to Interrogatory No.
16, infra, and indicated in addition that the documents are
protected as a "work product" of the Secretary's employees.

 Respondent has argued that the material requested in request

Nos. 5 to 9, i.e. the investigatory and assessment files specific
to the citations at issue, ". . . are essential to testing the
accuracy of witnesses' perceptions; to probe the truthfulness of
witnesses; to question memory; to explore and expose bias; to
uncover the basis for opinions and actions; and, to reveal
potentially exculpatory information which may aid a respondent,
such as ASARCO, in the preparation of its case." Petitioner has
not filed any response to Respondent's Motion to Compel and thus
has not rebutted Respondent's assertions. As such, I conclude
that the material sought to be discovered is relevant.

 Petitioner has not definitively indicated that the material

sought by Respondent in request No. 9 was prepared in
anticipation of litigation. Also the material sought would not
impede the investigatory process as Petitioner, in its objection
to Interrogatory No. 16, filed May 12, 1989, indicated that
although the investigation was "not technically closed," the
Solicitor had been informed that the investigation "has been
completed." Accordingly, Respondent shall comply with this
request.

 It is ORDERED that, within 10 days of this Order, the

Petitioner shall respond to Interrogatories 1 through 13, 15, and
16 and Request for Production of Documents 1 through 9 served by
Respondent on March 9, 1989.

                           Avram Weisberger
                           Administrative Law Judge
                           (703) 756-6210