Secretary of Labor on behalf of Jeffrey Pappas v. CalPortland Company and Riverside Cement Company

Plain-English summary

CalPortland and Riverside Cement asked Judge Alan G. Paez to compel the Secretary to produce an MSHA interview, an email, a memorandum, and other documents from Jeffrey Pappas in his discrimination case. The judge found the motion untimely because it came after the discovery deadline and more than 40 days after the Secretary supplied a privilege log, without an explanation or a documented effort to resolve the dispute. He nonetheless reached the merits and held that the Secretary and Pappas shared a legal strategy once the Secretary chose to pursue Pappas's complaint, so their confidential communications were protected by the common-interest privilege. That protection extended to communications with the MSHA investigator assisting the Secretary's counsel, and the informant privilege separately protected portions that could identify other confidential witnesses. The joint motion to compel was denied.

Decision snapshot

• Governing provisions: 30 U.S.C. § 815(c)(2); 29 C.F.R. §§ 2700.1(b), 2700.56, 2700.58(c), and 2700.61
• Outcome: CalPortland and Riverside Cement's joint motion to compel the withheld discrimination-investigation records was denied.
• Key point: A complainant and the Secretary may share common-interest protection once they pursue a joint discrimination claim, including communications with an MSHA investigator assisting counsel.

Full text (FMSHRC public release)

December 2, 2016

SECRETARY OF LABOR,

:     DISCRIMINATION PROCEEDING

MINE SAFETY AND HEALTH

:

ADMINISTRATION (MSHA),

:     Docket No. WEST 2016-264-DM

on behalf of JEFFREY PAPPAS,

:     WE MD 16-02

Complainant,

:

:

v.

:

:

CALPORTLAND COMPANY, and

:     Mine ID 04-00011

RIVERSIDE
CEMENT COMPANY,

:     Mine: Oro Grande Quarry

Respondents.

:    

ORDER DENYING RESPONDENTS’ JOINT MOTION TO
COMPEL

This case is before me upon a
complaint of discrimination filed by the Secretary of Labor (“Secretary”), on
behalf of Jeffrey Pappas against CalPortland Company (“CalPortland”) and
Riverside Cement Company (“Riverside”), pursuant to section 105(c)(2) of the
Federal Mine Safety and Health Review Act of 1977 (“Mine Act”), 30 U.S.C.
§ 815(c)(2). On February 12, 2016, the Secretary filed a discrimination
complaint on behalf of Pappas to the Commission. Chief Administrative Law Judge
Robert J. Lesnick assigned the matter to me on March 11, 2016. On March 11,
2016, the Secretary filed an amended complaint adding Riverside as a respondent
to the proceeding. CalPortland and Riverside each filed an answer to the
amended complaint on April 8, 2016. On April 14, 2016, I issued a Notice of
Hearing, setting this matter for hearing on December 6–9, 2016, in San
Bernadino, CA. The Notice of Hearing also provided guidelines to the parties
for completing discovery in this proceeding.

On November 18, 2016, Respondents
Riverside and CalPortland filed a Joint Motion to Compel Discovery Responses. The
Secretary timely filed a response on November 29, 2016.

I.
  BACKGROUND AND ISSUES

Respondents Riverside and
CalPortland each served a set of discovery requests to the Secretary on August
2, 2016, and August 3, 2016, respectively. (Mot. at 2.) The Secretary responded
to both discovery requests on September 26, 2016, and objected to certain
requests based on privilege. ( Id .) On October 7, 2016, the Secretary
provided a privilege log, asserting the common interest privilege, government
informant privilege, and attorney-client privilege as the basis for withholding
certain documents. ( Id. ) Respondents now request an order compelling the
Secretary to produce the withheld documents identified as Document Nos.
0047-0051, 0234, 0235, and 0236-0237.

According to the Secretary’s privilege log, Document
No. 0047-0051 contains an interview of Jeffrey Pappas by MSHA Special
Investigator Kyle Jackson, for which the Secretary claims the attorney-client,
common interest, and government informant privileges. (Mot. Ex. 3 at 2.) Document
No. 0234 contains documents from Pappas, for which the Secretary claims the
common interest privilege. Id. Document No. 0235 contains an email from
Pappas to Jackson, for which the Secretary claims the common interest and
government informant privileges. Id. Lastly, Document No. 0236-0237
contains a memorandum from Pappas to Jackson, for which the Secretary claims
the common interest and government informant privileges.   Id.

II.
  PRINCIPLES OF LAW

A.        Scope of Discovery

Under Commission Procedural Rule 56, parties may
use depositions, written interrogatories, requests for admissions, and requests
for documents or objects to “obtain discovery of 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(a)–(b). A party served with a
request for production must respond within 25 days of service and state the
basis for any objections in its answer. 29 C.F.R. § 2700.58(c).

Commission Judges may look to the Federal Rules
of Civil Procedure for guidance on any procedural question not governed by the
Mine Act, the Commission’s Procedural Rules, or the Administrative Procedure
Act. 29 C.F.R. § 2700.1(b). Under Federal Rule 26(b)(1), a party may
discover “any non[-]privileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1).
The scope of discovery under the Federal Rules is “construed broadly to
encompass any matter that bears on, or that reasonably could lead to other
matter that could bear on, any issue that is or may be in the case.” Oppenheimer
Fund, Inc. v. Sanders , 437 U.S. 340, 351 (1978).

Commission Procedural Rule 56(e),
29 C.F.R. § 2700.56(e), allows parties to engage in discovery as long
as it does not “unduly delay or otherwise impede disposition of the case” and
is “completed at least 20 days prior to the scheduled hearing.” For good cause
shown, Commission Judges may “extend or shorten the time for discovery.” Id.

B.        Limitations on Discovery: Privileged Matter

As noted above, Commission Rule
56(b) excludes privileged material from the scope of discovery. See 29
C.F.R § 2700.56(b). The Federal Rules of Civil Procedure also limit discovery
to “non[-]privileged” matter. Fed. R. Civ. P. 26(b)(1). However, parties
withholding information on the basis of privilege must expressly make such a
claim and “describe the nature of the documents, communications, or tangible
things not produced or disclosed—and do so in a manner that, without revealing
information itself privileged or protected, will enable other parties to assess
the claim.” Fed. R. Civ. P. 26(b)(5)(A).

1. Attorney-Client
   Privilege

The Commission has noted that the
attorney-client privilege generally protects communications made by a client in
confidence to his attorney. ASARCO, Inc. , 12 FMSHRC 2548, 2559 (Dec.
1990). Attorney-client privilege serves to promote full and frank communication
between attorneys and their clients. Upjohn Co. v. United States , 449
U.S. 383, 388 (1981). The privilege rests on the need for advocate and
counselor to know all that relates to the client’s reasons for seeking representation
to effectively carry out his or her objectives. Trammel v. United States ,
445 U.S. 40, 41 (1980). The party asserting the privilege has the burden to
prove the privilege applies. United States v. Layton , 855 F.2d 1388,
1406 (9th Cir.1988); United States v. Landof , 591 F.2d 36, 38 (9th
Cir.1978).

To establish the attorney-client
privilege, a party must demonstrate that the communication was made by a client
in confidence for the purpose of seeking legal advice from an attorney acting
in the capacity of an attorney. See Fisher v. United States , 425 U.S.
391, 403 (1976); United States v. Flores , 628 F.2d 521, 526 (9th Cir.
1980). The party must also demonstrate that the privilege with respect to the
communication has not been waived. Flores , 628 F.2d at 526.

The attorney-client privilege is
generally waived when the privileged communication is voluntarily disclosed to
a third party. Clady v. Los Angeles Cnty , 770 F.2d 1421, 1433 (9th Cir.
1985) (citing Weil v. Investment/Indicators, Research & Management, Inc. ,
647 F.2d 18, 24 (9th Cir.1981)). However, the attorney-client privilege may
extend to third parties who have been engaged to assist the attorney in
providing legal advice. United States v. Richey , 632 F.3d 559, 566 (9th
Cir. 2011) (citing Smith v. McCormick , 914 F.2d 1153, 1159–60 (9th Cir.
1990)); see also United States v. Kovel , 296 F.2d 918, 921–922 (2d Cir.
1961).

2. Common
   Interest Privilege

The common interest privilege is an
extension of the attorney-client privilege. United States v. Gonzalez , 669
F.3d 974, 978 (9th Cir. 2012); In re Pacific Pictures Corp. , 679 F.3d
1121, 1129 (9th Cir. 2012) (“the ‘common interest’. . . rule is an exception to
ordinary waiver rules designed to allow attorneys for different clients
pursuing a common legal strategy to communicate with each other”). The
privilege not only protects the confidentiality of communications passing from
a party to his or her attorney, but also from “one party to the attorney for
another party where a joint defense effort or strategy has been decided upon
and undertaken by the parties and their respective counsel.” United States
v. Austin , 416 F.3d 1016, 1021 (9th Cir. 2005) (citing United States v.
Schwimmer , 892 F.2d 237, 243 (2d Cir. 1989)). The parties must make the
communication in pursuit of a joint strategy in accordance with some form of
agreement, whether written or unwritten. Pacific Pictures Corp. , 679
F.3d at 1129. There is no requirement that actual litigation be in
progress for the common interest privilege to apply. Gonzalez , 669 F.3d
at 980 (citing Cont’l Oil Co. v. United States , 330 F.2d 347, 350 (9th
Cir. 1964); United States v. Aramony , 88 F.3d 1369, 1392 (4th Cir.
1996)).

3. 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

I note at the outset that the deadline
to complete discovery in this matter was November 16, 2016. 29 C.F.R. §
2700.56(e). Respondents filed their joint motion to compel on November 18,
2016. Although I may extend the discovery period for good cause shown, Respondents’
motion does not show any good faith attempt on Respondents’ part to confer with
the Secretary to resolve this discovery dispute since receiving the Secretary’s
privilege log on October 7, nor does the motion provide any explanation why Respondents
waited over 40 days after receiving the Secretary’s privilege log to file their
motion. Respondents’ motion is therefore untimely. Nevertheless, I address the
parties’ arguments in regard to each requested document below.

A.        Document Nos. 0047-0051, 0235, and 0236-0237

The Secretary asserts the common
interest and informant’s privileges for Document Nos. 0047-0051, 0235, and
0236-0237. [1] (Mot. Ex. 3
at 2; Daquiz Decl. at 2.) The Secretary states these documents memorialize
communications with Pappas aimed at furthering the Secretary’s and Pappas’
interests in this matter and neither party has waived its privileges. (Daquiz
Decl. at 2.) The Secretary also states the documents contained information that
could identify other confidential witnesses. ( Id. ) According to the
privilege log, the documents contain an interview with Pappas from MSHA Special
Investigator Kyle Jackson, an email from Pappas to Jackson, and a memo from
Pappas to Jackson. (Mot. Ex. 3 at 2.)

Respondents argue that Pappas and the Secretary
do not have an attorney-client relationship, and therefore, the common interest
privilege does not apply because the privilege only extends the attorney-client
privilege. (Mot. at 3.) Respondents also argue that the government informant’s
privilege does not apply because the privilege only protects informants’
identity and not the documents in their entirety. (Mot. at 4.) Respondents note
the informant’s privilege does not apply to Pappas because his identity has
been revealed. (Mot. at 4.)

The common interest privilege
protects communications from one party to the attorney for another party where
a joint strategy has been decided upon and undertaken by the parties and their
counsel. Austin , 416 F.3d at 1021 (citing Schwimmer , 892 F.2d at
243). Although Pappas has not retained separate counsel, he is his own legal
representative and a party to this proceeding. The Secretary’s decision to
pursue Pappas’ discrimination complaint pursuant to section 105(c)(2) of the
Mine Act establishes a joint strategy agreed upon between the two parties. I
therefore determine that the common interest privilege applies to confidential
communications between Pappas and counsel for the Secretary.

The common interest privilege, by
extension of the attorney-client privilege, also protects communications to
third parties who have been engaged to assist attorneys in providing legal
advice. See Richey , 632 F.3d at 566; Smith , 914 F.2d at 1159–60
(concluding that a defendant’s communication with her psychiatrist was
protected up to the point of testimonial use); see also Kovel , 296 F.2d at
921–922 (holding that the privilege extends to communications made by a client
to an accountant employed by the attorney to assist in providing legal advice).
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.” [2]
McGlothlin v. Dominion Coal Corp. , 36 FMSHRC 3052, 3053 (Nov. 2014)
(ALJ). Consequently, the MSHA investigator may be deemed to be a subordinate of
an attorney, whose communications with a prospective complainant are privileged.
See id.

MSHA assigned Jackson to conduct an
investigation after MSHA received Pappas’ discrimination complaint alleging he
was improperly discharged. (Am. Compl. at 5.) The purpose of Jackson’s
investigation was for MSHA to identify whether Pappas had a claim for
discrimination and to inform the Secretary whether an action may be brought. I thus
determine that Jackson, although not an attorney, was engaged to assist the
Secretary’s counsel in providing legal advice. The common interest privilege therefore
extends to confidential communications that Pappas made to Jackson as a party
engaged to assist the Secretary’s counsel. [3]

Further, the government informant’s
privilege protects the identity of informants who furnished information to the
government regarding possible violations of the law. Bright Coal Co. , 6
FMSHRC at 2522-25. The Secretary states that the requested documents contain information
that could identify confidential witnesses other than Pappas. (Daquiz Decl. at
2.) Respondents have not addressed how producing such information would be essential
to fair determination to overcome the privilege. I therefore determine that
Respondents’ need for the information does not outweigh the need to maintain
the privilege to protect the public interest.

For the reasons above, I determine
that the common interest privilege applies in regard to the confidential
interview, email, and memo provided by Pappas to Jackson. Additionally, I conclude
that informant’s privilege applies to the portions of these documents that tend
to reveal the identity of government informants other than Pappas.

B.        Document No. 0234

The Secretary asserts the common
interest privilege for Document No. 0234. (Mot. Ex. 3 at 2; Daquiz Decl. at 2.)
The Secretary also states Document No. 0234 memorializes communications with Pappas
aimed at furthering the Secretary’s and Pappas’ interests in this matter. (Daquiz
Decl. at 2.) The Secretary states that the Secretary and Pappas have not waived
the privilege. (Daquiz Decl. at 2.) The privilege log identifies Document
No. 0234 as documents from Pappas. (Mot. Ex. 3 at 2.)

Respondents assert the same
arguments made for the other documents, claiming that Pappas and the Secretary
do not have an attorney-client relationship, and therefore, the common interest
privilege does not apply. (Mot. at 3.)

As determined above, the Secretary
has established the existence of a joint strategy with Pappas in his decision
to pursue Pappas’ discrimination complaint under section 105(c)(2) of the Mine
Act. Because the documents contain confidential communications between Pappas
and the Secretary made to further their joint legal interests, I determine the
common interest privilege also applies to these documents.

IV.
  ORDER

Based on the reasons above, Riverside
and CalPortland’s joint motion to compel is hereby DENIED .  

/s/
Alan G. Paez

Alan
G. Paez

Administrative
Law Judge

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

Abigail Daquiz, Esq., U.S.
Department of Labor, Office of the Solicitor, 300 Fifth Avenue,

Suite 1120, Seattle, WA 98104-2397

([email protected])

Brian P. Lundgren, Esq., and Erik M. Laiho, Esq., Davis
Grimm Payne & Marra, 701 Fifth Avenue, Suite 4040, Seattle, WA 98104

([email protected]) ([email protected])

Karen L. Johnston, Esq., Jackson Kelly PLLC, 1099 18th
Street, Suite 2150, Denver, CO 80202

([email protected])

Jeffrey Pappas, 12279 Merrod Way, Victorville, CA 92395-9774

(U.S. Mail Only)

/ivn

[1] The privilege log also lists the attorney-client
privilege for Document No. 0047-0051. (Mot. Ex. 3 at 2.) The Secretary admits
the Secretary is not Pappas’ attorney for the purposes of this proceeding. (Resp.
at 3, n.7.) However, the Secretary states the attorney-client privilege was
identified as the basis for withholding documents because the common interest
privilege extends the protections of the attorney-client privilege. (Daquiz
Decl. at 2.)

[2] Although the judge’s decision is not binding, I take
his reasoning as persuasive authority.

[3] I also note that the Secretary’s counsel does in fact
represent MSHA in this matter, and thus attorney-client privilege also protects
communications between Jackson, as MSHA’s representative, and the Secretary’s
counsel.