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 subpoenaed the Russell County Treasurer's Office for deleted emails that McGlothlin's wife may have sent from her office computer, including archived and backup data. Judge Jerold Feldman found that Dominion already had emails produced in discovery and had not shown that forensic recovery of deleted material was likely to produce relevant evidence about protected activity or Dominion's motivation. He also found that recovering the database material would be unduly burdensome and duplicative under Commission discovery rules and the Federal Rules of Civil Procedure. The subpoena was quashed, and McGlothlin's counsel was directed to provide the Treasurer's Office with the order.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(c)(3); 30 C.F.R. Part 90; 29 C.F.R. §§ 2700.1(b), 2700.56(b), and 2700.56(c)
• Outcome: The subpoena for deleted emails and backup data was quashed.
• Key point: Discovery of electronically stored information may be denied when relevance is unshown and retrieval would be burdensome and duplicative.

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 7, 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 GRANTING
MOTION TO QUASH 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]

I.                  
Background

During an October 28, 2014, telephone
conference, the parties represented that, through discovery, the Complainant’s
wife Alicia McGlothlin produced e-mails concerning her husband’s Part 90 status
and his discrimination claim, with the exception of those e-mails that were
claimed to have been previously deleted and those privileged or properly
redacted. Mrs. McGlothlin is an employee of the Russell County, Virginia,
Treasurers Office. Among the e-mails sought were those sent from her office
computer.

On October 15, 2014, in an effort to determine
whether spoliation has occurred, Dominion served a subpoena on the Russell
County, Virginia, Treasurers Office seeking to obtain e-mails sent by Mrs.
McGlothlin from its e-mail account server, including all archived and hard
drive backup data.[2]
McGlothlin has filed a motion to amend this subpoena to, in essence, limit the
information produced to only those e-mails already provided by Mrs. McGlothlin
(again excluding privileged e-mails and those appropriately requiring
redactions). I construe McGlothlin’s motion to amend the subpoena as a motion
to quash the subject subpoena.

II.               
Discussion

The general principles governing the analysis
of discrimination cases under the Mine Act are well settled. In order
to establish a case of discrimination under section 105(c) of the Act, the
complainant has the burden of proving that (1) he engaged in protected activity
and (2) the adverse action complained of was motivated in any part by that
protected activity. Secretary on behalf of Pasula v. Consolidation Coal Co.,
2 FMSHRC 2786, 2797-2800 (Oct. 1980), rev’d on other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary
on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 817, 818 (Apr.
1981).

The operator may rebut the prima facie case by
showing either that no protected activity occurred or that the adverse action
was in no part motivated by protected activity. If an operator cannot rebut the
prima facie case in this manner, it nevertheless may defend affirmatively by
proving that it also was motivated by factors unrelated to the miner’s
protected activity and that it would have taken the complained-of action in any
event for the unrelated factors alone. Pasula, supra; Robinette,
supra. See also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d
639, 642 (4th Cir. 1987); Donovan v. Stafford Construction Co., 732 F.2d
954, 958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th
Cir. 1983) (specifically approving the Commission’s Pasula-Robinette
test). Cf. NLRB v. Transportation Management Corp., 462 U.S. 393,
397-413 (1983) (approving nearly identical test under National Labor Relations
Act).

Thus, the issues in this discrimination
proceeding are whether McGlothlin engaged in protected activity, and, if so,
whether the adverse action complained of by McGlothlin was, in any part,
motivated by McGlothlin’s protected activity. Dominion may affirmatively defend
by demonstrating that the adverse action complained of was taken solely for
factors unrelated to any protected activity.

Commission Rule 56(b) provides that
a party may obtain through discovery “any relevant, non-privileged matter that
is admissible evidence or appears likely to lead to the discovery of admissible
evidence.” 29 C.F.R. § 2700.56(b). Dominion has already obtained e-mail
documentation from Mrs. McGlothlin through discovery. As the issues in this
proceeding are whether McGlothlin engaged in protected activity and Dominion’s
motivations, Dominion has not shown that the forensic recovery of the e-mails
reportedly deleted by Mrs. McGlothlin, if retrievable, will lead to relevant
evidence. In reaching this conclusion, I note that the commonly expressed
argument that a document’s relevance cannot be determined until it is seen is
unavailing as it would result in limitless discovery.

Notwithstanding the issue of
relevance, Commission Rule 56(c) limits discovery, when appropriate, to relieve
a person or entity from “oppression or undue burden or expense.” 29 C.F.R. §
2700.56(c). In applying this limitation, it is noteworthy that Commission Rule
1(b) provides that on procedural matters not explicitly addressed by the Act’s
statutory provisions or the Commission’s rules, the Commission’s Judges may
look to “any pertinent provisions of the Federal Rules of Civil Procedure.” 29
C.F.R. § 2700.1(b). Federal Rule of Civil Procedure 26(b)(2)(B) provides
specific limitations on the discovery of electronically-stored information. This
provision limits the discovery of such information when it is “not reasonably
accessible because of undue burden or cost.” Rule 26(b)(2)(C)(i) of the Federal
Rules of Civil Procedure also limits discovery when the information “sought is
unreasonably cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or less expensive.”

In the final analysis, it has not been shown
that the information sought to be retrieved from Russell County, Virginia,
Treasurers Office’s database can be reasonably expected to lead to relevant
evidence. Moreover, the retrieval of such information is precluded by Federal
Rules of Civil Procedure 26(b)(2)(B) and 26(b)(2)(C)(i) because it would be unduly
burdensome and duplicative.

ORDER

In view of the above, IT IS
ORDERED that McGlothlin’s motion to quash the subpoena as served on the Russell
County, Virginia, Treasurers Office IS GRANTED. IT IS FURTHER ORDERED
that Counsel for McGlothlin provide a copy of this Order to the Russell
County, Virginia, Treasurers Office within ten days of its issuance.

/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] My office routinely provides blank, signed subpoenas
for the parties’ appropriate use during discovery and in preparation for
witness testimony. The provision and ultimate service of such subpoenas is not
demonstrative of any acquiescence that they were properly served.