Scott McGlothlin v. Dominion Coal Corporation

Plain-English summary

Scott McGlothlin alleged that Dominion Coal discriminated against him because he sought protections for miners with pneumoconiosis under 30 C.F.R. Part 90. Dominion asked Judge Jerold Feldman to reconsider an order quashing a subpoena for deleted emails that McGlothlin's wife may have sent from her government office account. The Judge found Dominion's claim that a deleted email might establish the date of McGlothlin's Part 90 application speculative and held that the burden of forensic database retrieval outweighed the possible value of the material. He also concluded that communications with an MSHA investigator could be protected by attorney-client privilege because the investigator assists the Solicitor's Office in evaluating possible litigation. The reconsideration request was denied.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(3); 30 C.F.R. Part 90; 29 C.F.R. §§ 2700.56(b) and (c)
• Outcome: Dominion's request to reconsider the order quashing its subpoena was denied.
• Key point: Speculation that a deleted email might be relevant did not justify burdensome forensic recovery, particularly where privilege could protect the communication.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue NW, Suite 520N

Washington, D.C. 20004

November 14, 2014

SCOTT MCGLOTHLIN,

Complainant,

v.

DOMINION COAL CORPORATION,

Respondent.

DISCRIMINATION PROCEEDING

Docket No. VA 2014-233-D

NORT-CD-2013-04

Mine: Dominion No. 7

Mine ID: 44-06499

ORDER DENYING
RECONSIDERATION

OF ORDER
QUASHING SUBPOENA

This matter is before me based on a Complaint of
Discrimination brought by Scott McGlothlin against Dominion Coal Corporation
(“Dominion”), pursuant to section 105(c)(3) of the Federal Mine Safety and
Health Act of 1977, as amended, 30 U.S.C. § 815(c)(3) (2006) (“Mine Act” or
“the Act”). McGlothlin seeks redress under section 105(c)(3) for an adverse
action allegedly motivated by his application for the protections afforded to
miners afflicted with pneumoconiosis under 30 C.F.R. Part 90.[1]

Alicia McGlothlin, the wife of the Complainant, is an
employee of the Russell County, Virginia, Treasurer’s Office. The Respondent
seeks reconsideration of a November 7, 2014, Order quashing a subpoena it
served on the Treasurer’s Office. The subpoena sought to obtain e-mails
concerning this discrimination matter sent by Mrs. McGlothlin from her office
computer that were reportedly deleted. Specifically, the subpoena sought to
obtain the deleted material from the office’s e-mail account server, including
all archived and hard drive backup data.

The November 7, 2014, Order, which is incorporated by
reference, determined, inter alia, that the information sought was
unreasonably cumulative and duplicative in view of the fact that the
Complainant provided available e-mails sent by Mrs. McGlothlin through
discovery. Moreover, the Order, citing pertinent Commission rules, as well as
the Federal Rules of Civil Procedure, concluded that seeking to forensically
recover database information from the Treasurer’s Office was unduly burdensome.
See 29 C.F.R. §§ 2700.56(b), (c); Fed. R. Civ. P. 26(b)(2)(B), (C)(i).

The Respondent filed a Motion to Reconsider the Order
Granting Motion to Quash Subpoena on November 12, 2014. In support of its
reconsideration request, Dominion represents that it has been unable to
ascertain when and how “[McGlothlin] filed his Part 90 election.” In further
support of its Motion, Dominion now represents that during the course of
discovery it determined that an MSHA investigator had made reference to an
e-mail received from Mrs. McGlothlin: which has not been produced; which may
have been deleted; and which may be relevant to determining the date of
McGlothlin’s Part 90 application.

As an initial matter, Dominion’s assertion that a deleted
e-mail may be relevant to determining the date of McGlothlin’s Part 90
application is speculative and does not outweigh the burden of the Treasurer’s
database retrieval. Moreover, the attorney-client privilege protects
confidential client communications. The criteria for attorney-client privilege
are met when:

(1) the asserted holder of the
privilege is or sought to become a client; (2) the person to whom the
communication was made (a) is a member of the bar of a court or his subordinate
and (b) in connection with this communication is acting as a lawyer; (3) the
communication relates to a fact of which the attorney was informed (a) by his
client (b) without the presence of strangers (c) for the purpose of securing
primarily either (i) an opinion on law or (ii) legal services or (iii)
assistance in some legal proceeding, and not (d) for the purpose of committing
a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived
by the client.

SECRETARY OF LABOR O/B/O CHARLES SCOTT HOWARD, COMPLAINANT
v. CUMBERLAND RIVER COAL COMPANY, RESPONDENT, 34 FMSHRC 311, 314 (jan. 2012),
citing Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998) 

While not an attorney, the role of an MSHA investigator is
to provide an opinion on the merits of a discrimination complaint which is
provided to the Solicitor’s Office in contemplation of potential litigation. Consequently,
the MSHA investigator may be deemed to be a “subordinate” of an attorney, whose
communications with a prospective complainant are protected under the attorney-client
privilege.[2]

ORDER

In view of the above, IT IS ORDERED that Dominion’s
reconsideration request of the November 7, 2014, Order quashing the subpoena IS
DENIED.

/s/
Jerold Feldman

Jerold
Feldman

Administrative
Law Judge

Distribution:

Evan B. Smith, Esq., Wes Addington, Esq., Appalachian
Citizens Law Center, Inc., 317 Main Street, Whiteburg, KY 41858

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40552

David Hardy, Esq., Scott Wickline, Esq., Hardy Pence PLLC,
500 Lee Street East, Suite 701, P.O. Box 2548, Charleston, WV 25329

/acp     

[1] Under 30 C.F.R. Part 90, a miner determined by the
Secretary of Health and Human Services to have evidence of the development of
pneumoconiosis is given the opportunity to work without loss of pay in an area
of the mine where the average concentration of respirable dust in the mine atmosphere
during each shift to which that miner is exposed is continuously maintained at
or below 1.0 milligrams per cubic meter of air (“mg/m3”).

[2]
I do not view previous e-mails to MSHA produced during discovery, if any, as a
waiver of the attorney-client privilege. This privilege applies regardless of
whether the communications are made directly to the MSHA official, or by a
spouse on the complainant’s behalf.