Secretary of Labor obo Curtis Logsdon v. Park County Government

Plain-English summary

MSHA brought a discrimination case for miner Curtis Logsdon against Park County, Colorado, which operates the Nine Pit. Park County asked the Secretary to hand over two documents: the letter the Mine Act requires MSHA to send a miner telling him whether it found a violation, and the internal written determination that a violation occurred. The Secretary refused, claiming privilege. The judge had the Secretary send both documents to him privately so he could look at them himself before ruling. The first turned out to be a mostly boilerplate letter to Logsdon with no facts about the case. The second was a "Merits Analysis" memo from the Department of Labor attorney to her supervisors, arguing the case should be filed, and built almost entirely on her legal reasoning. The judge held both are attorney work product prepared because of this particular litigation, and that Park County had shown no real need for either. The motion to compel was denied.

Decision snapshot

• Cited standard(s): 30 U.S.C. § 815(c)(3) (notice to miner); 29 C.F.R. § 2700.41(a) (written determination); 29 C.F.R. § 2700.56(b) (scope of discovery)
• Outcome: Motion to compel production of the documents sought in Requests for Production Nos. 4 and 5 denied
• Key point: A document the Mine Act or the Commission's rules require the Secretary to prepare is not discoverable just because it is required; if it was written because of the prospect of this particular case, work product still protects it.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19th Street, Suite
443

Denver, CO 80202-2536

303-844-3577/FAX
303-844-5268

August 4, 2016

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

on
behalf of CURTIS LOGSDON,

Complainant

v.

PARK
COUNTY GOVERNMENT,

Respondent

DISCRIMINATION
PROCEEDING

Docket
No. WEST 2016-380-DM

MSHA
No. RM MD 2016-07

Nine
Pit

Mine
ID 05-04600

ORDER
DENYING REQUEST FOR PRODUCTION OF DOCUMENTS

This discrimination case was
brought by the Secretary of Labor on behalf of Curtis Logsdon against the
government of Park County, Colorado (“Park County”) under section 105(c) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (“Mine
Act”) and 29 C.F.R. § 2700.40 et seq. The case is set for hearing on September
13, 2016. On April 19, 2016, Respondent served its First Set of Written
Interrogatories, Requests for Production of Documents, and Requests for Admission
on the Secretary. The Secretary served his response on May 17, 2016. On July
15, 2016, Respondent filed a motion to compel discovery. I issued an unpublished
order disposing of most of the issues raised by the motion to compel on August
1, 2016.

Two of the discovery requests included
in the motion to compel sought the production of documents. Park County asked
the Secretary to produce (1) the “written notification from the Secretary to
Logsdon of his determination that a violation has occurred as described in
Section 105(c)(3) of the Mine Act” and (2) the “written determination of the
Secretary that a violation has occurred in this matter as described in 29 CFR
§2700.40(a) and 29 CFR §2700.41(a).” The Secretary objected to these requests
as subject to the work product privilege, the attorney-client privilege, the
deliberative process privilege, and the common interest privilege. Resp. Mot.
9.

In my August 1 order, I stated
that I was unable to rule on Respondent’s motion to compel with respect to
these documents because I was not sure what information was contained within
them. I ordered the Secretary to provide the documents to me for my in
camera review. The documents have now been provided and I hold that they
are subject to the work product rule, as set forth below. As a consequence, the
Secretary is not required to produce them.

In its motion to compel, Park
County argued that both documents are “discoverable since they are both
relevant and admissible and required by law to be prepared and maintained by
the Secretary.” Resp. Mot. 9. In response, the Secretary stated that “these
documents . . . were clearly prepared within the Solicitor’s Office and in
anticipation of litigation and, thus, [are] not only protected from disclosure
by the work product doctrine, but by the deliberative [process] privilege as
well.” Sec’y Opposition 4.

The first document requested by
Park County is required under the first sentence in section 105(c)(3) of the
Mine Act. That sentence states that “[w]ithin 90 days of the receipt of a
complaint filed under paragraph (2), the Secretary shall notify, in writing,
the miner . . . of his determination whether a violation has occurred.” 30
U.S.C. § 815(c)(3) (emphasis added).

The second document is “the written
determination of the Secretary that a violation has occurred” in this matter as
described in 29 C.F.R. § 2700.40(a) and 29 C.F.R. § 2700.41(a). Resp. Mot. 9. Commission
Procedural Rule 40(a) provides that a discrimination complaint shall be filed
by the Secretary if, after an investigation, “the Secretary determines that a
violation of section 105(c)(1), 30 U.S.C. 815(c)(1), has occurred.” 29 C.F.R. §
2700.41(a). The procedural rule does not require that a document be prepared by
the Secretary other than the complaint of discrimination that is filed with the
Commission and served on the mine operator. Commission Procedural Rule 41(a)
provides that a “discrimination complaint shall be filed by the Secretary
within 30 days after his written determination that a violation has
occurred.” 29 C.F.R. § 2700.41(a) (emphasis added).

THE WORK PRODUCT
RULE

Although
the Commission’s Procedural Rules do not specifically set forth a work product
rule, 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)(A) allows a party to withhold otherwise
discoverable materials under the work product rule 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 its representative. Fed. R. Civ. P. 26(b)(3)(A);
see
also ASARCO, Inc.,
12 FMSHRC 2548, 2558 (Dec. 1990) (“ASARCO I”).

Commission
Judge Alan G. Paez recently summarized the test to be used when analyzing the
work product doctrine, as follows:

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 FMSHRC 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 an MSHA investigation are prepared in
anticipation of litigation. Consolidation Coal Co., 19 FMSHRC 1239, 1243
(July 1997)[.]

Sec’y
on behalf of Villa v. Molycorp Minerals, LLC, 36 FMSHRC 1076, 1078 (April
2014). The work product rule is qualified and documents that otherwise may be
withheld under the rule may be subject to disclosure upon a showing that the requesting
party has substantial need for the material to prepare its case and cannot,
without undue hardship, obtain the substantial equivalent by other means. Consolidation
Coal Co., 19 FMSHRC at 1242-43; Fed. R. Civ. P. 26(b)(3)(A)(ii).

1. Notification to Miner
   Required by Section 105(c)(3)

This document is a letter, dated
March 14, 2016, from Michelle A. Horn, counsel for Complainant, to Curtis
Logsdon. It states that the Secretary of Labor will be filing a complaint of
discrimination against Park County on his behalf. The remainder of the letter
is equivalent to an engagement letter telling Logsdon what to expect as the
case proceeds and that he has the right to obtain outside representation or the
advice of a private attorney if he so choses. The letter contains no factual
information about this particular discrimination case and a large part of the
letter appears to be boilerplate.

I find that the Secretary is not
required to produce this letter because it is subject to the work produce rule.
But for the commencement of the present case, the document would not have been
written. In addition, there is no information in the document that Park County needs
in the preparation of its defense in this matter.

2. The Secretary’s Written Determination
   that a Violation of Section 105(c) Occurred

This document is a legal
memorandum entitled “Merits Analysis,” dated February 26, 2016, from Michelle
A. Horn to the Regional Solicitor and the Associate Regional Solicitor of the
Department of Labor. In this memo, Ms. Horn sets forth the reasoning behind her
recommendation that the Secretary file a complaint of discrimination on behalf
of Curtis Logsdon. Printed across the top of the first page of the memo are the
words: “FOR INTERNAL USE ONLY. This document may contain information that is
privileged or otherwise exempt from disclosure under applicable law.” This
document was clearly prepared in anticipation of litigation by the Secretary’s
attorney. It was only prepared because of the prospect of this particular
litigation. See ASARCO I, 12 FMSHRC at 2558.

The purpose of the memo is to convince
Ms. Horn’s supervisors in the Office of the Solicitor to support her conclusion
that the Secretary should proceed with this litigation. The memo
briefly presents some basic facts, presumably gathered by MSHA’s special
investigator, but most of the memo consists of a recitation of Commission case law
followed by Ms. Horn’s analysis of the issues applying this case law. The
memo is infused with the “mental impressions, conclusions, opinions, [and]
legal theories of [Ms. Horn] concerning the litigation.” Fed. R. Civ.
P. 26(b)(3)(B). It would be difficult to parse out those portions of the memo
that discuss the facts from her legal analysis, in part because revealing the
facts that are emphasized in the memo would disclose the mental impressions and
legal theories of Ms. Horn.

Commission Procedural Rule 56(b)
provides that “[p]arties may 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(b). The memo is certainly relevant
to the issues in this case and the facts contained therein would be admissible
at hearing. Nevertheless, I am not willing to require the disclosure of any
part of an internal memo prepared by an attorney in the Office of the Solicitor
directed to her supervisors for the purpose of convincing them that a case
should be filed before the Commission, including those portions of the memo that
set forth the facts that she relied upon. That Commission Procedural Rule 41(a)
requires the Secretary to file his discrimination complaint within 30 days
after this written determination is prepared is irrelevant to the disclosure
issue. Id. at 2700.41(a). I find that the memo is protected by the work
product rule. In addition, my review of the memo convinces me that Park County
would not be able to demonstrate that it has a substantial need for any part of
the memo to prepare its case or that it cannot, without undue hardship, obtain by
other means the facts that it does not already possess.

My analysis on this issue incorporates
some of the principles of the deliberative process privilege. The Commission
has held that “public officials are entitled to the private advice of their
subordinates and to confer among them themselves privately and frankly, without
fear of disclosure[.]” In Re: Contests of Respirable Dust Sample Alteration
Citations, 14 FMSHRC 987, 991 (June 1992) (citation omitted). I find that
disclosure of any part of the subject memo would not only reveal the
Secretary’s work product, as that concept is set forth in the Federal Rules of
Civil Procedure, but it would also violate the Secretary’s reasonable
expectation that the advice and recommendations of its counsel will be kept confidential.

ORDER

For
the reasons set forth above, Respondent’s motion to compel the disclosure of
the two documents sought by Park County in Requests for Production Nos. 4 and 5
is DENIED.

/s/ Richard W.
Manning

Richard
W. Manning

Administrative
Law Judge

Distribution:

Michelle A.
Horn, Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer
Blvd., Suite 216, Denver, CO 80204-3518

Herbert
C. Phillips, Esq., PO Box 1046, Fairplay, CO 80440

Timothy
P. Schimberg, Esq., and Joel J. Fulton, Esq., Fowler, Schimberg & Flanagan,
1640 Grant St., Suite 150, Denver, CO 80205

RWM