Lad Mining Inc., Larry Flynn, and Ronald Calhoun

Plain-English summary

The Secretary brought a Mine Act discrimination complaint on behalf of Jerry Lee Dotson, who alleged that Lad Mining, Larry Flynn, and Ronald Calhoun discharged him and refused to rehire him because of protected safety activity. During discovery, the respondents sought the names and expected statements of miners and operators whom Dotson might quote, while the Secretary invoked the informer's privilege. Judge David Barbour held that the privilege protected people who had communicated with MSHA or other government officials, but not people who had spoken only with Dotson and would not testify. He ordered the complainant to disclose the latter group’s names and attributed statements within ten days, while preserving the two-day protection for potential miner witnesses.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(2); 29 C.F.R. §§ 2700.55(c) and 2700.59
• Outcome: The motion to compel was granted in part, with limited names and statement summaries ordered within ten days.
• Key point: The informer's privilege protects information given to government investigators, not every private conversation about a discrimination claim.

Full text (FMSHRC public release)

CCASE:
MSHA (JERRY LEE DOTSON) V. LAD MINING,
LARRY FLYNN, & RONALD CALHOUN
DDATE:
19920420
TTEXT:

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SECRETARY OF LABOR, : DISCRIMINATING PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. SE 92-181-D
on behalf of :
JERRY LEE DOTSON, : Mine No. 50
Complainant :
v. :
:
LAD MINING INC., LARRY FLYNN, :
AND RONALD CALHOUN, :
Respondent :

                            ORDER

 On February 10, 1992 the Secretary of Labor ("Secretary")

filed a complaint of discrimination on behalf of Jerry Lee Dotson
("Complainant") pursuant to Section 105(c)(2) of the Federal Mine
Safety and Health Act of 1977 (The "Mine Act"), 30 U.S.C.
815(c)(2), alleging that Lad Mining Inc., Larry Flynn and Ronald
Calhoun ("Respondents") had discharged unlawfully and refused to
rehire Dotson. Respondents filed a timely answer, and initiated
discovery, serving the Complainant with interrogatories and
requests for production of documents. The Secretary, acting on
behalf of the Complainant, refused to divulge some of the
information sought by the Respondents on the grounds of privilege
The Respondent's now seek to compel its disclosure.

 The pertinent interrogatories and responses involved in this

dispute are as follows:

 The Respondents have requested Complainant to identify all

persons having knowledge of Complainant's claims and the
substance of their knowledge [Interrogatory 2]. Complainant has
answered, in part, by naming himself and Alfred Meeks, a former
contractor/operator of the mine, as having knowledge of orders to
discharge Complainant for allegedly protected activity and by
naming Alfred Meeks as having knowledge of Respondent Calhoun's
control over the daily operations of the mine and of Calhoun's
attitude toward compliance with health and safety laws, but
Complainant has declined to produce the names of potential miner

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witnesses pursuant to Commission Procedural Rule 59. 1

 The Respondents have requested that Complainant identify

each witness and summarize the testimony of each witness
[Interrogatories 3 & 4]. Complainant has responded that Dotson
and Meeks can be expected to testify and that two days prior to
the hearing, and in accordance with Commission rules,
Complainant will produce the names of miner witnesses. Further,
Complainant has stated that he will testify to statements from
other operators to the effect that Calhoun "blacklisted" him and
statements that he will never work again as a coal miner in the
area and that Meeks will testify regarding Calhoun's control of
mine operations, his orders to fire Complainant and Complainant's
work record, skills and reputation.

 The Respondents have requested that Complainant identify

persons with knowledge of the facts and circumstances regarding
the allegedly common practice of "rehiring" every previously
employed miner when the operations of the mine change hands
[Interrogatory 13]. Complainant has responded that he will rely
on statements from himself and other miner witnesses whose names
he will not disclose "at this time."

 The Respondents have requested identification of all

persons with knowledge of the Respondents' alleged refusal to
rehire Complainant because of his asserted protected safety
activity [Interrogatory 14]. Complainant has responded that he
will rely on circumstantial evidence, as well as statements from
mine witnesses, and that the names of the witnesses will not be
disclosed "at this time."

 The Respondents have requested identification of all

persons having knowledge of the facts and circumstances concerning
Complainant's application for employment with Larry Flynn and/or
Lad Mining, Inc. [Interrogatory 21]. Complainant has identified
Dotson, Flynn and Calhoun, and miner witnesses whose names will
not be disclosed "at this time."

Following Complainant's response to the interrogatories, the

1Rule 59 states:
A Judge shall not, until 2 days before a hearing,
disclose or order a person to disclose to an operator
or his agent the name of a miner who is expected by the
Judge to testify or whom a party expects to summon or
call as a witness. 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.

 29   C.F.R.   2700. 59

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Respondents moved for an order compelling the Secretary to
furnish the names of operators and/or miners who the Complainant
will quote in his testimony but who the Secretary will not call
as witnesses and to furnish a summary of the alleged statements
of these operators and/or miners. Respondents state they
recognize that the Secretary is not required to disclose the
names and testimony summaries of miner witnesses expected to be
called until two days prior to the hearing but argue they seek
instead the names of operators and/or miners who will be quoted
by the Complainant but who will not be called to testify.

 The Secretary, on behalf of Complainant, has responded that

although Complainant will testify regarding conversations with
coal mine operators and miners concerning his alleged
"blacklisting" by Calhoun and its effect on his ability to work
in the mining industry, the Secretary opposes disclosure of the
names of such individuals based on the informer's privilege
(Commission Rule 59) and that counsel for the Secretary has
assured Complainant that the names of individuals who have spoken
with him regarding his blacklisting will not be disclosed
pursuant to the privilege. The Secretary states that the
informer's privilege clearly encompasses protection of the
identities of individuals who provide information during the
course of a governmental investigation regardless of whether or
not the person is ultimately called to testify as a witness at
trial, and that a ruling requiring the Secretary to disclosure
the names of all individuals who provided information regarding
Complainant's blacklisting will hinder MSHA's ability to conduct
thorough investigations and obtain information regarding future
Mine Act violations, as well as render meaningless MSHA's
assurances of confidentiality. The Secretary also argues that
Respondents have not made the showing necessary to overcome the
informer's privilege.

 Under Commission Procedural Rule 55(c), 29 C.F.R.

2700.55 (c), and Rule 26(b)(1) of the Federal Rules of Civi
Procedure, all relevant material not privileged is subject to
discovery. The Commission and the Federal Courts have broadly
construed the discovery rule to include relevant material, and
conversely, have narrowly construed the claim of privilege.
Hichman v. Taylor, 329 U.S. 495(1947); Secretary on behalf of
Logan v. Bright Coal Co. Inc., 6 FMSHRC 2520 (1984). The burden
is on the party claiming that relevant material is not subject to
discovery because of privilege.

 The Respondents, recognizing that privilege exists with

regard to individuals who will appear as witnesses, have, in
effect, narrowed their request for information to the
identification of those who will not testify but who will be
quoted or paraphrased by Complainant in his testimony and to
summaries of what Complainant will say they said as it relates to
his complaint of discrimination. As set forth below, I will

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grant the Motion to Compel to the extent that it relates to such
operators and/or miners who have spoken or otherwise communicated
with Complainant but not with an MSHA investigator or other
government official or agent.

 The privilege to withhold from disclosure the identity and

statements of persons who may have furnished information
regarding violations or possible violations of the Mine Act is a
qualified privilege that balances the public interest in
protecting the free flow of information to MSHA's enforcement
staff and the right of those who give information to be protected
from possible retaliation against a respondent's need for the
information to prepare his or her defense. Bright Coal Company,
Inc., 6 FMSHRC at 2522-2523. See also: Wirtz v. Continental
Finance & Loan Co. of West End, 326 F.2d 561 (5th Cir. 1964);
Brennan v. Engineered Products, Inc., 506 F.2d 299 (8th Cir.
1974).

 As noted by the Commission in Bright, 6 FMSHRC at 2524, the

privilege, codified in Commission Rule 59, reflects Congressional
concern, set forth in the Mine Act and its legislative history,
about the possibility of retaliation against miners who
participate in the enforcement of the Act and the desire to
protect the identity of those who contact the Secretary regarding
violations of the Act. Responding to this concern, the
Commission, when interpreting the privilege, has sought to
"maximize the lines of communication with the Secretary
concerning violations of the Mine Act." 6 FMSHRC at 2524
(emphasis added). However, claims of privilege are to be
narrowly construed, and the Commission has been careful to
provide its judges with a framework for application of the
privilege. It has defined the term "informer" and instructed
that application of the informer's privilege should be based upon
that definition. Bright, 6 FMSHRC at 2525.

 An "informer" is "a person who has furnished information to

a government official relating to or assisting in the
government's investigation of a possible violation of the Mine
Act," Bright, 6 FMSHRC at 2525 (emphasis added). Under the
Commission's procedural framework, a judge must first determine
if the information sought is relevant and discoverable. 6 FMSHRC
at 2523. Next, the judge must determine whether, based upon the
definition of "informer", the information is privilege. 6 FMSHRC
at 2525.

 Here, the Respondents seek to compel the Secretary to

disclose the names of operators and/or miners who will be quoted
or paraphrased by Complainant and to provide summaries of their
statements regarding Complainant's claims, in particular, alleged
blacklisting and alleged refusal of Respondents to rehire
Complainant. This information bears directly on Complainant's

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allegations of discrimination and is relevant and discoverable. 2

 The next step is to determine whether the information is

privileged. Bright, 6 FMSHRC at 2525. This determination must
first be based upon the definition of "informer". It is here
that the Secretary's inclusive opposition to disclosure fails,
because "informers," for the purpose of Rule 59, are those
persons who have furnished information to a government official
or agent relating to or assisting in the government's
investigation of a possible violation of the Mine Act. Bright, 6
FMSHRC at 2525.

 The Secretary, in her response to the Motion to Compel, is

clear that she opposes production of the names and summaries of
the testimony of operators and/or miners who have engaged in
conversations with Complainant regarding his allegations of
discrimination, but conversations with Complainant are not the
same as furnishing information to an MSHA investigator or other
government official so as to assist in the government's
investigation of a possible Mine Act violation. Complainant,
although the subject and potential beneficiary of a government
investigation and although a party who may be represented by the
government, is not an official or agent charged with enforcing
the law. Nor is it conceivable to me that the informer's
privilege was ever meant to extend to conversations with those
other than such officials or agents. If such were the case, it
would undercut the very nature of the privilege--furtherance and
protection of the public interest in effective law enforcement
through recognition that prescribing anonymity encourages citizens
to communicate their knowledge the violations of the law
to those charged with enforcing the law. Rovario v. United
States, 353 U.S. 53 59 (1957). 3

2While the Commission in Bright suggested in camera inspection of
information sought in order to determine its relevance, 6 FMSHRC
at 2523, in this instance the relevant nature of the material
sought is apparent on the face of the Secretary's pleadings.

3However, I agree with the Secretary that the fact that those who
may be quoted by the Complainant will not be called to testify
does not, in and of itself, render the informer's privilege
inapplicable. Many who provide information to the government
during the course of an investigation are not called to testify
and for a variety of valid reasons. Nonetheless, the information
they provide and their willingness to come forward is vital to the
effectiveness of an investigation. Their participation
should be encouraged. Restricting the protections from
retaliation inherent in the informer's privilege only to those
who ultimately testify would, in my opinion, hinder the efficacy
of governmental enforcement.

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 Thus, I hold, as both parties seem to recognize, that

Complainant need not produce to Respondents the names of
potential miner witnesses until two days prior to trial. Nor
need Complainant produce to Respondents the names and summaries
of the testimony of operators and/or miners who communicated with
MSHA investigators or other government officials or agents
charged with enforcing the law regarding the substance of
Complainant's allegations of discrimination. However, and with
regard to such operators and/or miners who Complainant will quote
or paraphrase in his testimony and who will not be themselves
called to testify and who have spoken with Complainant but not
communicated with MSHA investigators or other government law
enforcement officials, Complainant must produce to Respondents
their names and a summary of the words Complainant will attribute
to them.

 Accordingly, Complainant is ORDERED to produce the names and

summaries in question as outlined above, and in further response
to Interrogatories 3, 4, 13, 14, and 21, within ten days of this
order.
David Barbour
Administrative Law Judge
(703) 756-6200

Distribution:

Gretchen M. Lucken, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, 4th Floor, Arlington,
VA 22203 (Certified Mail)

Michael W. Boehm, Esq., Spears, Moore, Rebman & Williams, 801
Pine Street, 8th Floor, Blue Cross Building, P.O. Box 1749,
Chattanooga, TN 37401-1749 (Certified Mail)

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