Mid-Continent Resources, Inc.
Mid-Continent Resources, Inc. (FMSHRC WEST 88-231): Discovery requests partly granted
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This order from 1988 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
Mid-Continent Resources sought interrogatory answers and documents from the Secretary in a civil penalty proceeding involving the Dutch Creek No. 1 Mine. Judge John J. Morris protected the identities of miner witnesses and informants under Commission Rule 59, while requiring the Secretary to state whether miners would testify and how many would be called. He granted or denied individual discovery requests, requiring answers and production of documents on specified deadlines and sustaining a deliberative-process privilege objection. The order also made its rulings controlling on the same issues pending in WEST 88-230.
Decision snapshot
- Governing provision: 29 C.F.R. § 2700.59
- Outcome: The discovery motion was partly granted, partly denied, and modified, with specified answers and document production required.
- Key point: The Commission's miner-witness confidentiality rule protects identities while still allowing the operator to obtain non-identifying discovery about expected testimony.
Full text (FMSHRC public release)
CCASE:
SOL (MSHA) V. MID-CONTINENT RESOURCES
DDATE:
19881110
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. WEST 88-231
PETITIONER A.C. No. 05-00301-03549
v. Dutch Creek No. 1 Mine
MIDÄCONTINENT RESOURCES, INC.,
RESPONDENT
ORDER
1. Respondent has served on petitioner certain
interrogatories and requests for production of documents.
2. Petitioner responded thereto and a number of objections
have been posted by the petitioner. The parties orally argued to
their respective positions in a conference call on November 9,
1988.
On respondent's motion to compel, I find the following
issues:
Interrogatory No. 8 poses the following question to which
respondent filed the following answer.
8. As to each of the foregoing orders, list by name,
address, place of employment and occupation, each
person the issuing MSHA inspector contacted in the
course of the issuing inspector's investigation prior
to the issuance of each of said orders.
Answer No. 8. Order No. 3223449 - George Prewitt.
Order No. 2832627 - David Powell
The identity of any miner who discussed this citation
with the inspector will be protected as confidential
and disclosure of any identity is hereby objected to.
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Discussion
Commission Rule 59, 29 C.F.R. 2700.59, provides as
follows:
2700.59 Name of miner witnesses and informants.
A Judge shall not, until 2 days before a hearing,
disclose or order a person to disclose to an operator
or his agent the name of a miner who is expected by the
Judge to testify or whom a party expects to summon or
call as a witness. A Judge shall not, except in
extraordinary circumstances, disclose or order a person
to disclose to an operator or his agent the name of an
informant who is a miner.
The judge is bound by the foregoing Commission Rule.
Accordingly, respondent's motion to compel discovery as to the
identity of any such miner is denied. However, petitioner is
directed to state whether any miners are to be called as
witnesses and to state the number of such witnesses without
disclosing their identity.
Respondent's motion to compel, as modified herein, is
granted.
Interrogatory No. 9 poses the following question to which
respondent filed the following answer:
9. As to each of the foregoing orders, please identify
what fact(s) or data, if any, relied upon by the
issuing inspector, elicited during the pre-order or
pre-citation investigation, was provided by what
person(s), if any, named responsive to Interrogatory
No. 8.
Answer No. 9. Response to Number 8 above is hereby
incorporated.
Discussion
Facts relied upon do not identify any miner that may be
involved. Respondent's motion to compel is granted.
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Interrogatory No. 10 poses the following question to which
respondent filed the following answer:
10. As to each of the foregoing orders, please identify
the name and address of each person petitioner expects
to call as a witness at the hearing in this matter, and
with respect to each person:
a. State the subject matter about which the person is
expected to testify:
b. State the substance of the facts or the expected
testimony about which the person is expected to
testify:
c. State the substance of the opinions, if any, to
which the person is expected to testify:
d. Summarize the grounds for each opinion.
Answer No. 10. The Secretary has not yet determined
what witnesses will be called to testify, but will
state that Phil Gibson and Lee Smith may be called to
testify in this matter.
Discussion
The parties have agreed that, except for the identity of
miner witnesses, petitioner will answer Interrogatory 10 by
November 22, 1988.
Accordingly, respondent's motion to compel is granted.
Interrogatory No. 11 poses the following question to which
respondent filed the following answer.
11. As to each of the foregoing orders, please identify
and describe each exhibit which petitioner intends to
mark and offer as an exhibit in evidence at the hearing
on the foregoing citations or orders.
Answer No. 11. The Secretary will mark and introduce
the MSHA History of Assessed Violations. At this time,
the Secretary has not determined what, if any, other
exhibits will be used.
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Discussion
The same agreement and ruling is entered herein as provided
above as to Interrogatory No. 10.
Interrogatory No. 13 poses the following question to which
respondent filed the following answer.
13. Please state, if not in writing and subject to one
of the following requests for production, the
enforcement policy or policies affecting MidÄContinent
Resources, Inc. as determined and put in effect by each
of the following persons: J.L. Spicer, Ron Schell, John
W. Barton, William A. Holgate, and/or J.M. DeMichiei.
Answer No. 13. All formal policies are placed in
writing by MSHA. All other policies are protected by
the deliberative-process privilege and objection is
hereby made to this request.
Discussion
The claim of privilege asserted by petitioner is sustained
and respondent's motion to compel is denied.
Request for Production of Document No. 17 asks for the
following to which respondent responded as follows:
17. As to each of the foregoing orders, please provide
legible copies of any and all documents which
petitioner intends to mark and offer as exhibits to be
received in evidence in the trial of this matter.
Response No. 17. The Secretary has not yet determined
what evidence will be introduced.
Discussion
Petitioner has agreed to produce all such document's by
November 22, 1988. Petitioner will further submit a final update
by November 25, 1988.
Accordingly, respondent's motion to compel is granted.
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Request for Production of Document No. 18 asks for the following
to which respondent responded as follows:
18. Any and all notes of memoranda concerning
enforcement at MidÄContinent Resources, Inc.'s
operations in Coal Basin, Colorado.
Response No. 18. Objections, this request is burdensome
and requests documents that are confidential.
Discussion
This request is overly broad. The thrust is directed at
MidÄContinent's assertions that the Secretary has abused his
prosecutorial discretion. This issue has been partially heard and
is pending before the undersigned Judge in WEST 89Ä3ÄR. If the
Commission has jurisdiction to review an alleged abuse of
discretion by the Secretary (an issue not yet determined but
pending before the undersigned Judge) then requests of this type
should be presented, argued and briefed in WEST 89Ä3ÄR. In sum,
an orderly record requires that all of these issues be presented
in one case.
Petitioner's objections are sustained and respondent's
motion to compel is denied.
Request for Production of Document No. 19 asks for the
following to which respondent responded as follows:
19. Any and all memoranda or memorial of enforcement
policies affecting MidÄContinent Resources, Inc.
developed or promulgated by J.L. Spicer, Ron Schell,
John W. Barton, William A. Holgate, and/or John M.
DeMichiei.
Response No. 19. Objection, this request is burdensome
and calls for documents that are confidential.
Discussion
The same ruling is made herein as to the Request for
Production involved in Request No. 18.
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Request for Production of Document No. 20 asks for the following
to which respondent responded as follows:
20. Any and all notes or memoranda other than the
informant's name made from telephone calls or personal
contacts by MSHA personnel with MidÄContinent (other
than management) personnel regarding MidÄContinent
(other than management) personnel regarding
MidÄContinent's operations and/or alleged violations.
Response No. 20. No documents exist regarding these
violations and objection is made as the request calls
for confidential information.
Discussion
Petitioner has agreed to comply with this request and
respondent accepts the limitation that the request be limited to
Docket No. WEST 88Ä230 and WEST 88Ä231.
Accordingly, respondent's motion to compel, as modified, is
granted.
Request for Production of Document No. 21 asks for the
following to which respondent responded as follows:
21. Any and all notes or memoranda pertinent to the
criteria, review, and processing of special assessment
violations.
Response No. 21. Objection, this request is overbroad,
burdensome, and calls for privileged material.
Discussion
Controlling case law establishes that a mine operator, prior
to a hearing, may raise the issue that in proposing a penalty the
Secretary failed to comply with his Part 100 penalty regulations.
Youghiogheny and Ohio Coal Company, 9 FMSHRC 673, 679Ä680 (1987).
Accordingly, respondent's motion to compel is granted.
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Request for Production of Document No. 22 asks for the following
to which respondent responded as follows:
22. Any and all notes or memoranda received by MSHA
from the U.S. Department of Labor Inspector General,
the General Accounting Office, or any other federal or
state investigative agency concerning complaints and/or
mining methods or practices conducted at MidÄContinent
Resources, Inc.
Response No. 22. Objection, this request is overbroad,
burdensome, and calls for privileged material.
Discussion
The same ruling is entered herein as in Request No. 18.
ORDER
For the reasons stated above and for additional reasons
agreed to in the conference call, the undersigned enters the
following order:
1. The above rulings are confirmed.
2. The rulings herein are controlling as to the same issues
pending in WEST 88Ä230.
3. Petitioner has been ordered to answer interrogatories and
requests herein within certain time frames. Respondent is
likewise ordered to answer petitioner's interrogatories and
requests within the same time frames.
John J. Morris
Administrative Law Judge
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