Secretary of Labor on behalf of Jose Villa v. Molycorp Minerals, LLC

Plain-English summary

Molycorp Minerals sought unredacted MSHA interview memoranda, witness statements, and an internal memorandum in a discrimination case brought for miner Jose Villa. Judge Alan G. Paez found that the disputed records were protected by the work-product privilege, the informant's privilege, or both. The redactions protected identifying details about miners who still worked for Molycorp and faced a possible risk of retaliation. Molycorp did not show that the withheld information was essential to a fair determination or unavailable through its own investigation. The motion to compel was denied.

Decision snapshot

• Governing provisions: 29 C.F.R. §§ 2700.1(b) and 2700.61
• Outcome: Molycorp's motion to compel production of unredacted MSHA investigation records was denied.
• Key point: Work-product and informant privileges protect investigative records when disclosure could identify working miners and the operator has not shown an overriding need.

Full text (FMSHRC public release)

FEDERAL MINE
SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law
Judges

1331 Pennsylvania Ave., N.W., Suite
520N

Washington, D.C. 20004

April 4, 2014

SECRETARY
OF LABOR,

��MINE
SAFETY AND HEALTH���

��ADMINISTRATION
(MSHA), on behalf

��of
JOSE VILLA

����������������������� ��
Complainant,

����������������������� v.

MOLYCORP
MINERALS, LLC,

����������������������� ��
Respondent

DISCRIMINATION
PROCEEDING

Docket
No. WEST 2013-1097-DM

WE
MD 13-16

Mine
ID 04-02542

Mt.
Pass Mine and Mill

�����������

ORDER DENYING
RESPONDENT�S MOTION TO COMPEL

�����������

����������� This
discrimination proceeding is before me under section 105(c)(2) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 815(c)(2). On August 29, 2013,
the Federal Mine Safety and Health Review Commission (�Commission�) received a
complaint of discrimination filed by the Secretary of Labor (�Secretary�) on
behalf of the complaining miner, Jose Villa. The Commission received an answer
from Molycorp Minerals, LLC (�Respondent� or �Molycorp�), on September 27,
2013. Thereafter, Chief Administrative Law Judge Robert J. Lesnick assigned
this case to me on November 7, 2013. This case is currently set for hearing on
June 18�20, 2014, in or near San Bernardino, California.

On January 21, 2014, Molycorp filed a
Motion to Compel, and the Secretary filed his Opposition to Respondent�s Motion
to Compel on January 31, 2014. In a March 6, 2014, conference call with my Law
Clerk, Paul Veneziano, the parties confirmed that they had not yet resolved the
issues underlying the pending motion. On March 10, 2014, counsel for Molycorp
sent an e-mail attaching a chart entitled �Additional Information from
Secretary Concerning Document Production.� On March 14, 2014, I permitted the
Secretary to file a surreply to Molycorp�s March 10, 2014, e-mail. The
Secretary filed his surreply on March 21, 2014.

I.                  
FACTUAL
BACKGROUND AND ISSUES TO BE DECIDED

����������� On
October 1, 2013, Molycorp requested the production of documents, requested
admissions, and submitted interrogatories. (Mot. at Ex. 1.) The Secretary
provided responses to Molycorp�s discovery requests on November 15, 2013, along
with privilege log consisting of a table of withheld documents and a table of
redacted documents. (Mot. at Ex. 2, Ex. 3.) On November 26, 2013, the Secretary
provided additional redacted documents. (Mot. at 2.)

Based on the Secretary�s discovery
responses and privilege log, Molycorp identified nine documents it believes
should have been produced in their entirety, excluding the informants� names. (Mot.
at 2, 4; Opp. at 5.) The Secretary has provided redacted copies of eight
documents and withheld the ninth. (Opp. at 5.) Those documents include:

Redacted Documents:

1.     
May
8, 2013 � Memorandum of Interview (Informant) conducted by MSHA

2.     
May
18, 2013 � Memorandum of Interview (Informant) conducted by MSHA

3.     
May
22, 2013 � Memorandum of Interview (Informant) conducted by MSHA

4.     
April
12, 2013 � Unsigned Statement from Informant

5.     
May
5, 2013 � Unsigned Statement from Informant

6.     
May
6, 2013 � Signed Statement from Villa

7.     
April
22, 2013 � Signed Statement from Villa

8.     
May
22, 2013 � Memorandum of Interview (Villa) conducted by MSHA

Withheld Document:

9.     
�May
28, 2013 � Memorandum to File

Respondent�s motion contends that the
Secretary has not properly asserted privileges that justify his redactions and
withholding of documents. (Mot. at 12�16, 18�19.) Molycorp also suggests that
if the informant�s privilege applies, the Secretary should produce the redacted
and withheld materials because Respondent�s need for the information outweighs
the Secretary�s need to maintain the privilege to protect the public interest. (Mot.
at 6, 16�18.) Respondent asks that I order the Secretary �to produce the
disputed documents in a complete and unredacted form with the exception of
individual names of informants.� (Mot. at 4.)

The Secretary asserts the work product
privilege as a basis for redacting or withholding the first five above-listed
documents, a portion of the eighth document, and the entire ninth document. (Opp.
at 17�19.) The Secretary also claims that the informant�s privilege applies to
all of the redacted documents. (Id. at 7.) Finally, the Secretary argues
that Molycorp has not shown that its need for the redacted documents outweighs
the Secretary�s interest in maintaining the privilege.[1]
(Id. at 14�15.)

����������� The
following issues are before me: (1) whether the work product privilege applies
to the seven documents for which the Secretary asserts the privilege; (2)
whether the informant�s privilege applies to the redacted documents; (3)
whether the redacted material would tend to reveal the informants� identity;
and (4) whether Molycorp�s need for the redacted information outweighs the
Secretary�s interest in maintaining the privilege.

II.� �PRINCIPLES
OF LAW

A.������� Work
Product Privilege

Although the Commission�s Procedural
Rules do not specifically enumerate a work product privilege, the Federal Rules
of Civil Procedure guide Commission Judges �as far as practicable� on
procedural questions �not regulated by the [Mine] Act, [the Commission�s]
Procedural Rules, or the Administrative Procedure Act.� 29 C.F.R. � 2700.1(b). Federal
Rule 26(b)(3) allows parties to withhold otherwise discoverable materials under
the work product privilege if they are (1) documents or tangible things; (2)
prepared in anticipation of litigation or for trial; and (3) by or for another
party or for that party�s representative. Fed. R. Civ. P. 26(b)(3); see also
ASARCO, Inc., 12 FMSHRC 2548, 2558 (Dec. 1990) (�ASARCO I�).

Courts apply a �but-for� test to
determine whether a substantially similar document would have been created if
not for the prospect of particular litigation. See ASARCO I, 12 FMSRC at
2558 (�If . . . [a] document can fairly be said to have been prepared because
of the prospect of litigation, then the document is covered by the
privilege. . . . In addition, particular litigation must be contemplated
at the time the document is prepared.�) (emphasis added); see also U.S. v.
Richey, 632 F.3d 559, 568 (9th Cir. 2011); U.S. v. Deloitte LLP, 610
F.3d 129, 137 (D.C. Cir. 2010). The Commission and its Judges have determined
that documents prepared as a result of a MSHA investigation are prepared in
anticipation of litigation. Consolidation Coal Co., 19 FMSHRC 1239, 1243
(July 1997) (indicating that a special investigator�s memoranda were prepared
in anticipation of litigation); ASARCO I, 12 FMSHRC at 2558 (concluding
that a special investigator�s notes were prepared in anticipation of litigation
because �[a] major function of an MSHA special investigation is to determine
whether litigation should be commenced . . . .�); see also Baylor Mining,
Inc., 26 FMSHRC 739, 742 (Aug. 2004) (ALJ) (finding investigator�s
documents, signed and unsigned miner witness statements, and memoranda of
interviews to have been prepared in anticipation of litigation); Sec�y of
Labor on behalf of Jenkins v. Durbin Coal, 22 FMSHRC 1135, 1137�39 (Sept.
2000) (ALJ) (determining that witness statements, memoranda, notes, and reports
had been prepared in anticipation of litigation when collected as part of a
section 105(c) investigation of a discrimination complaint).

�����������

B.������� Informant�s
Privilege

Under the informant�s privilege, the
Secretary may �withhold from disclosure the identity of persons furnishing
information of violations of law to [MSHA].� Bright Coal Co., 6 FMSHRC
2520, 2522 (Nov. 1984); see also 29 C.F.R. � 2700.61 (prohibiting
Commission Judges from disclosing or ordering disclosure of an informant�s name
to an operator �except in extraordinary circumstances.�) Informants are people
who have �furnished information to a government official relating to or
assisting in the government�s investigation of a possible violation of law,
including a possible violation of the Mine Act.� Id. at 2525. The
informant�s privilege protects from disclosure material that �tend[s] to reveal
an informant�s identity.� ASARCO, Inc., 14 FMSHRC 1323, 1330 (Aug. 1992)
(�ASARCO II�). The Secretary must demonstrate why disclosure would tend
to reveal the miner�s identity, but his burden �is not necessarily high� and
may be satisfied by an affidavit �setting forth how or why disclosure . . .
would tend to reveal the identity of an informant.� Id. at 1329�30.

����������� A
requesting party may overcome the informant�s privilege if, in the totality of
the circumstances, the information is �essential to fair determination.� Bright
Coal, 6 FMSHRC at 2526. To do so, the requesting party must demonstrate
that its need for the information outweighs the Secretary�s need to maintain
the privilege to protect the public interest. Id.

III.� �ANALYSIS AND
CONCLUSIONS OF LAW

A.������� Work
Product Privilege

The Secretary asserts the work product
privilege as to seven different documents, including: three memoranda of
interviews with miner informants dated May 8, May 18, and May 22, 2013; two
unsigned statements from informants dated April 12 and May 5, 2013; the
withheld May 28, 2013, memorandum prepared by MSHA; and a portion of the
memorandum of interview with Villa that the Secretary claims contains only the
�investigations, impressions, strategy, and methods for obtaining information.�
(Opp. at 17�19.) Respondent contends that the Secretary has not properly
asserted the work product privilege. (Mot. at 19.) However, Molycorp states
only that �the information provided is inadequate to properly assert [the work
product privilege] and �[l]ittle to none of the required information has been
provided.�[2] (Id.) �Looking
at the redacted documents (Opp. at Ex. 1), I determine that each redacted item
is a document that was prepared by or for the Secretary�s representative. Likewise,
the Secretary�s privilege log and motion make clear that the withheld
memorandum is a document MSHA prepared on May 28, 2013. Accordingly, the only
question remaining is whether the redacted and withheld documents were prepared
in anticipation of litigation.

����������� Six
of the documents�the May 8, May 18, and May 22 memoranda of interviews with
informants, portions of the May 22 memorandum of interview with Villa, the May
5 unsigned statement, and the withheld May 28 memorandum�were created after
Villa filed his formal 105(c) complaint with MSHA on April 29, 2013. MSHA
routinely undertakes section 105(c) investigations to determine whether the
Secretary should bring a discrimination case on behalf of the complaining
miner. Thus, �but for� Villa�s complaint and MSHA�s section 105(c)
investigation, none of these documents would have been created. Accordingly, I
conclude that these six items were prepared in anticipation of litigation and
constitute the Secretary�s work product.

����������� However,
the April 12, 2013, unsigned statement significantly predates Villa�s
complaint. The Secretary has not adequately explained how the author prepared
this statement in anticipation of litigation except to say �the underlying
issues surrounding Villa�s discrimination complaint were already coming to a
head.� (Opp. at 18�19.) None of the cases the Secretary cites involve materials
prepared before a discrimination complaint has been filed. Although an
investigation may have already begun, I cannot conclude that this statement was
prepared in anticipation of litigation based on the information the Secretary
has provided.

B.������� Informant�s
Privilege

1.                 
Whether
the Informant�s Privilege Applies

In this case, the Secretary has asserted
the informant�s privilege as to the eight redacted documents he provided. (Opp.
at 6�7.) Given my conclusion that the work product privilege applies to five of
the redacted documents, see discussion supra Part III.A, I need
not revisit them to decide if the informant�s privilege applies. I must only
determine whether the informant�s privilege applies to the April 6, 2013,
unsigned statement and Villa�s signed statements dated April 22 and May 6,
2013.

Molycorp contends that the Secretary has
not provided sufficient information to show the informant�s privilege applies
to these documents.[3] (Mot. at
14�15.) In response, the Secretary represents that the informants in this case
�furnished information� in connection with �a possible violation of the Mine
Act.� (Opp. at 7 (quoting Bright Coal, 6 FMSHRC at 2525).) He also avers
that the miners in this case �spoke to the Secretary in confidence, currently
work for Respondent, [and] seek to remain confidential� and states that �one
has expressed particular concern about becoming the target of Respondent�s
retribution.�[4] (Opp. at 3). �

Looking at the unredacted portions of
these three documents, each includes details regarding the incidents in
question and miners present. These facts support a finding that unnamed
witnesses possessed information to share with MSHA. Moreover, the Secretary�s
counsel has affirmed in his Opposition that the redacted portions involve
details from (or regarding) miners that provided materials to MSHA during the
section 105(c) investigation. In view of counsel�s responsibilities under
Commission Procedural Rule 6 and Federal Rule of Civil Procedure 11, I also
determine that an affidavit will not be necessary in this case because a sworn
statement of the same will add nothing to my analysis. See 29 C.F.R �
2700.6(b) (a person�s signature on a document certifies, to the best of the
person�s knowledge, information, and belief, that the document is well grounded
in fact); Fed. R. Civ. P. 11(b)(3) (an attorney signing a pleading is
certifying, to the best of the attorney�s knowledge, information, and belief,
that factual contentions have evidentiary support).

Based on the foregoing analysis, I
conclude that the informant�s privilege applies to each of these three redacted
documents.�

2.                 
Whether
the Redacted Information Would Tend to Reveal the Identity of the Informants

Having determined that the informant�s
privilege applies to these three documents, I must also decide whether the redacted
information would tend to reveal the informant�s identity.

First, Villa�s statement from April 22,
2013, indicates that he and another miner expressed safety concerns. (Opp. at
Ex. 1.) The Secretary represents that the only information that has been
redacted are the �names and phone numbers of the miner witnesses.� (Id.
at 9.) Looking at the redacted version of the statement, it appears contact
information was redacted from the list of people with knowledge of the
incident. (Id. at Ex. 1.) Undoubtedly, contact information would reveal
the informant�s identity. Thus, I determine that the Secretary has properly
redacted such information.

Second, the only information redacted
from Villa�s May 6, 2013, statement are his answers when asked whether he knew
of any other miners who had been disciplined for making safety complaints, the
reason for those safety complaints, and the date of the complaints. (Id.
at Ex. 1.) Such details would reasonably allow Molycorp to identify the names
of possible informants. I therefore determine that the Secretary has properly
redacted that information.

����������� Third,
the Secretary has redacted only small portions of the April 12, 2013, unsigned
statement, which relays an account of the �buggy� transportation argument involving
Villa. (Id. at Ex. 1.) The Secretary avers that only the informant�s
name, phone number, and three sentences of context have been removed. (Id.
at 9.) According to the Secretary, those sentences reference where the
informant was sitting on the small bus. (Id.) Molycorp claims the
Secretary�s reliance on the �universe of persons with� being �small� is
insufficient to support the privilege. (Mot. at 15 (citing ASARCO II, 14
FMSHRC at 1329).)

However, in ASARCO II the
Commission held only that the Judge had not committed a ��clear abuse of
discretion�� in ordering disclosure where the Secretary had relied on the
�limited universe of employees� but presented no �facts to the judge to
establish her claim.� 14 FMSHRC at 1329�30 (citations omitted). Here, looking
at the redacted statement itself, the informant provides some context about his
identity in his references to �up front,� �our crew,� �our foreman,� and �our
union.� (Id. at Ex. 1.) Based on this review, I determine that any
further context would allow Molycorp to use the redacted information to deduce
the identity of the informant involved. Thus, I conclude that the Secretary�s
redactions here are proper.

3.                 
Whether
Respondent Has Demonstrated a Need for the Redacted Documents That Outweighs
the Secretary�s Interest in Maintaining the Privilege

Molycorp argues its defenses rest �on
fact-specific determinations concerning both the alleged discriminatory conduct
and the related events pertaining to Respondent�s affirmative defenses.� (Mot.
at 17.) Respondent claims that contemporaneous witness observations �are vital
to assessing the accuracy and validity of the claims on both sides of the
case,� and contends that the proximity in time to the incidents suggests that
the redacted information is unavailable from any other source. (Id. at
17�18.) Finally, Molycorp suggests that passage of time will have degraded the
memories of the informant witnesses. (Id. at 18.)

For his part, the Secretary argues that
Molycorp has not met its burden of demonstrating the documents to be essential
to a fair determination of the matter. (Opp. at 14.) Specifically, the
Secretary states that Respondent has access to substantially the same
information. (Id. at 15.) The Secretary also notes that Molycorp�s
discovery responses suggest �it has spoken to multiple employees about the same
incidents, and may or may not have spoken to the informants already.� (Id.
at 15.) In addition, I note the Secretary�s representation that �the need for
protection as informants is critical, as the miner informants still work for
Respondent.� (Id. at 8.)

Molycorp has not met its burden in this
case for two reasons. First, Respondent�s argument that the redacted
information may be �vital� to its case is counterbalanced by the high stakes
involved for these particular informants. See Bright Coal, 6 FMSHRC at
2524 (�The presence of an employment relationship . . . with the greater
opportunity for retaliation that it provides, is a relevant factor to be
considered in conducting the balancing test . . . for determining whether the
privilege must yield in a particular case.�) The precarious position of
informants is a weighty concern, and the informant�s privilege provides a
critical protection against possible retaliation.

Second, Molycorp has not demonstrated
that the passage of time limits its access to the redacted information. Respondent
notably makes no mention of its own investigation�evidence which might have
shown informational discrepancies with the redacted documents. Nevertheless, a
full year has not yet passed since the incident in question. Molycorp has
failed to show that witness recollections will have been so degraded that it
will not have access to the same information. Cf. ASARCO II, 14
FMSHRC at 1323, 1331 (relying on operator�s ability to conduct depositions more
than four years after an accident as a rationale for concluding the operator
had access to the same information).

Based on the factors before me in this
case, I determine that Molycorp has not demonstrated the redacted information
is essential to a fair determination of the claims. Thus, I conclude that
Respondent has not overcome the informant�s privilege.

IV.� �ORDER
DENYING MOTION

����������� In
view of the above, the Secretary has properly asserted the work product or
informant�s privilege as to each of the nine documents at issue, and Respondent
has not met its burden of overcoming those privileges. Accordingly, it is
hereby ORDERED that Molycorp�s Motion to Compel is DENIED.

����������������������������������������������� ����������������������������������� ����������������������������������������������� /s/
Alan G. Paez������� �

����������������������������������������������������������������������������������� ����������������������������������������������� Alan G.
Paez

����������������������������������������������������������������������������� ����� ����������������������������������������������� Administrative
Law Judge

Distribution
(Via Electronic Mail & U.S. Mail):

Natalie
Nardecchia, Esq., U.S. Department of Labor, Office of the Solicitor, 350 S.
Figueroa Street, Suite 370, Los Angeles, CA 90071

([email protected])

Laura E. Beverage, Esq., Jackson
Kelly PLLC, 1099 Eighteenth Street, Suite 2150, Denver, CO 80202 �([email protected])

Dana
M. Svendsen, Esq., Jackson Kelly PLLC, 1099 Eighteenth Street, Suite 2150,
Denver, CO 80202� ([email protected])

/pjv

[1] The Secretary
also argues that Respondent has not made the showing of substantial need and
undue hardship necessary to overcome the work product privilege. (Opp. at
19�20.) Yet, Molycorp claims only that the Secretary has not properly asserted
the work product privilege. (Mot. at 18�19.) Thus, I need not determine whether
Respondent demonstrated a substantial need and undue hardship.

[2] Molycorp points
to Greyeagle Coal Co., 35 FMSHRC 3321, 3325, 3330 (Oct. 2013) (ALJ), for
the proposition that boilerplate objections are insufficient to properly assert
a privilege. (Mot. at 18.) I do not find this case analogous. In Greyeagle
Coal, the objecting party provided no privilege log to go along with its
written assertion of privilege. 35 FMSHRC at 3330. Here, the Secretary has
identified the nine documents he has either withheld or redacted. (See
Mot. at Ex. 2, Ex. 3.)

[3] Pointing to U.S.
Department of Justice v. Landano, 508 U.S. 165 (1993), Respondent contends
that the Secretary must demonstrate the informant in question provided
information with �some expectation of confidentiality.� (Mot. at 8.) Yet, it is
unclear why Molycorp believes Landano is applicable. Landano
examined Exemption 7(D) of the Freedom of Information Act (FOIA). 508 U.S. at

171. Although the informant�s privilege and Exemption 7(D) each allow the
     government to withhold information derived from confidential sources, it is not
     clear that they are coterminous in scope. The FOIA is a broadly applicable
     statute meant to facilitate public access to government records rather
     than an evidentiary privilege between parties in litigation. Moreover,
     Respondent overreads Landano. Based on the volume and variety of the
     FBI�s information sources, the Court refused to infer that all FBI
     investigative sources were confidential but noted that an implied assurance of
     confidentiality could be inferred from the character of the crime being
     investigated. Id. at 175�76, 179�80. �Here, the potential for
     retaliation makes an inference of confidentiality appropriate.

[4] The Secretary
also indicates his willingness to �submit an affidavit in camera review�
if I require �additional information regarding the application of the
informant�s privilege to the materials. (Opp. at 3 n.1.)