Adkins Coal Corporation

Plain-English summary

The Secretary sought permission to obtain documents from Adkins Coal Corporation after filing a discovery motion more than 20 days after the civil penalty petition. The requested material included a mine foreman's personal notebook, which the company argued was attorney work product. Judge Avram Weisberger found good cause for discovery and concluded that the notebook had not been shown to have been prepared for trial or otherwise protected. He granted the motion and ordered production of the requested documents.

Decision snapshot

• Governing provisions: 29 C.F.R. §§ 2700.55(a) and 2700.55(c)
• Outcome: The motion to permit discovery was granted, and the first document-production request was allowed.
• Key point: A business notebook was not shielded from discovery merely because counsel advised that it be kept.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. ADKINS COAL CORP.
DDATE:
19881223
TTEXT:

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

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. VA 87-8
PETITIONER A.C. No. 44-05185-03544
v.
Mine No. 1
ADKINS COAL CORPORATION,
RESPONDENT

                             ORDER

 On August 4, 1988, Petitioner filed a Motion to Permit

Discovery, requesting an order permitting the initiation of
discovery, pursuant to 29 C.F.R. 2700.55(a), inasmuch as the
Motion was filed beyond 20 days after the filing of the Petition
for Assessment of Civil Penalty.

 On August 25, 1988, a Stay Order was issued, pursuant to

Respondent's Motion for Continuance filed on August 11, 1988,
which was not opposed by Petitioner, pending the filing of a
110(c) action against certain individuals concerning the same
subject matter as the above case. In a conference initiated by
the undersigned with Counsel for both Parties on December 8,
1988, it was indicated that a request for hearing with regard to
the 110(c) action had been filed. On December 15, 1988,
Respondent submitted a statement in response to Petitioner's
First Request for Production of Documents which had been filed
along with Respondent's Motion on August 4, 1988.

 In its Motion, Petitioner alleged that the discovery sought

is relevant, reasonably calculated to lead to the discovery of
admissible evidence, within the knowledge and custody of the
Respondent, and will assist Petitioner in the preparation for
trial.

 Petitioner's First Request for Production of Documents seeks

discovery of documents contained in "the personal notebook
maintained by the mine foreman." Respondent argues that the
notebook is to be considered an attorney work product, inasmuch
as it ". . . was maintained by the mine foreman on the advise
and pursuant to instruction by Counsel." (sic).

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Based upon the representations in Petitioner's Motion, which have
not been challenged by Respondent in its statement filed on
December 15, 1988, I find that good cause has been established,
and discovery may be permitted. 29 C.F.R. 2700.55(c), in
essence, provides that discovery includes relevant material that
is not privileged, and which is either admissible or appears
reasonably calculated to lead to the discovery of permissible
evidence. In order to eliminate surprise and allow the Parties to
prepare for trial, in general, the rules of discovery should be
broadly applied (See Hickman v. Taylor, 329 U.S. 495 (1947)).
Although Respondent maintains that the notebook in question
should be considered an attorney work product, as it was
maintained by the mine foreman on the advice and pursuant to
instructions by Counsel, Respondent has not alleged that the
notebook in question was maintained in preparation for trial
(c.f. Rule 26(b), Federal Rules of Civil Procedure). Clearly, any
notebook kept, even on the advice of Counsel, in the regular
course of the business would be outside the "work product"
protection (See cases cited in Moore's Federal Practice at
26Ä354, 355). Further, inasmuch, as the notebook in question
appears to be in the exclusive control of Respondent, it would
appear that Petitioner would suffer undue hardship should
discovery not be allowed (Rule 26(b)(3), supra).

 Accordingly, it is ORDERED that Petitioner's Motion to

permit discovery is GRANTED and Petitioner's First Request for
Production of Documents is allowed.

                          Avram Weisberger
                          Administrative Law Judge
                          (703) 756Ä6210