Otis Elevator Company

Plain-English summary

The Secretary sought discovery from Otis Elevator Company in a case involving whether an employee working on a mine elevator system was a qualified person. Judge John J. Morris found Otis's responses to two requests for admission inadequate and found the requested maintenance records relevant and reasonably limited. He ordered Otis to answer the admissions and produce the requested records within 20 days. The order addressed discovery only and did not decide whether a violation occurred.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.103
• Outcome: The motion to compel was granted, with responses and document production due within 20 days.
• Key point: Discovery requests about a worker's qualifications and work history may be compelled when they are relevant to the cited conduct and reasonably limited.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. OTIS ELEVATOR
DDATE:
19900511
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 89-427
PETITIONER A.C. No. 42-01944-03502 B70

         v.                            Cottonwood Mine

OTIS ELEVATOR COMPANY,
RESPONDENT

                              ORDER

 This order addresses petitioner's motion to compel discovery

on the grounds that respondent's responses to her requests were
evasive, incomplete and unresponsive. Respondent has filed in
opposition to petitioner's motion.

    The issues presented are as follows:

                               I

         Request for Admission No. 4: Please admit that said
         electrician Billy Syddall on or about February 9, 1989,
         was employed by Otis Elevator Company to test,
         maintain, repair and trouble shoot the elevator system
         located at the Cottonwood Mine, Emery County, Utah
         operated by Utah Power and Light Company.
         Response: Respondent denies that Billy Syddall was an
         electrician. Respondent does not know what petitioner
         means by the term "employed" as it is used in this
         admission request. On February 8, 1989, Mr. Syddall
         found that unqualified persons including MSHA
         inspectors and mine electricians were operating the
         elevators in an unsafe manner. Respondent believes no
         elevator work was performed on February 9, 1989.

                          Discussion

 In Request for Admission No. 1, Otis admitted that Billy

Syddall was an "employee" of Otis but Otis now claims Syddall was
not "employed" in the mine on February 9, 1989.

 In view of these assertions Otis should either admit or deny

request for admission No. 4.

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The judge recognizes that the requests herein do not establish
that Syddall was an "electrician". However, Otis' present
response is inadequate.

 Accordingly, petitioner's motion to compel is granted and

respondent is ordered to answer Request for Admission No. 4
within 20 days of the date of this order.

                            II

      Request for Admission No. 5: Please admit that on or
      about February 9, 1989, that said Billy Syddall, an
      employee of Otis Elevator Company, was not a "qualified
      person" as that term is defined at 30 C.F.R.   77.103.
      Response: Respond admits that Mr. Syddall does not
      carry a green mine electrician's card and nor has he
      taken any tests administered for mine electricians. Mr.
      Syddall is a highly qualified elevator mechanic and has
      completed all requirements to be a journeyman mechanic.

                        Discussion

 The cited regulation, section 77.103, is an extensive

regulation setting forth in what manner an individual can be a
"qualified person."

 The answer of respondent is not responsive. Respondent can

either admit or deny that Billy Syddall is a qualified person.
Since the request for admission refers to 30 C.F.R. 77.103,
respondent can cite the particular portion of the regulation
respondent relies on in support of its position.

 In its response Otis states that petitioner's request No. 5

is improper because it calls for an admission of law and not
fact. However, Rule 33, F.R.C.P., in many instances has allowed
such interrogatories as they serve a useful purpose of narrowing
the issues. Wright and Miller 2167.

 Accordingly, petitioner's motion to compel is granted and

respondent is ordered to answer request for admission No. 5
within 20 days of the date of this order.

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III

      Request for Production No. 2: Please produce for the
      period of February 9, 1988, to February 9, 1989, any
      and all service logs, work orders, time cards, repair
      and maintenance orders complied by Billy Syddall and
      performed at the Cottonwood Mine, Emery County, Utah
      operated by the Utah Power and Light Company on the
      elevator system at that mine.

      Response: Respondent objects to this request on the
      grounds that it is ambiguous, overly broad, and seeks
      documents for a period of time which is not relevant to
      the issues in controversy. The only issue in this case
      concerns the events related in the citation. To the
      extent the request goes further it is in the nature of
      a fishing expedition. Beyond that, it seeks documents
      which may be the private property of Mr. Syddall.

                       Discussion

 Citation No. 3416117 herein alleges electrician Billy

Syddall was not qualified person. Further, his duties required
testing and trouble shooting the elevator system. The citation
was issued on February 9, 1989.

 Petitioner's request of documents for a year prior to the

date of the citation is reasonably calculated to lead to
admissible evidence. The period of time for which the documents
are sought is reasonable.

 I am unable to see how service logs, work orders, time

cards, repair and maintenance orders could be the private
property of any employee.

 The relevancy of the information sought is apparent. Namely,

did an unqualified person perform duties at the mine. The records
sought also seem to be normal records maintained in the course of
any business involving a maintenance contract.

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Otis states it is prepared to defend against allegations the
regulation was violated on February 9, 1989, but it objects to
the Secretary's "fishing expedition." As indicated above, the
evidence sought may be relevant to establish a violation on
February 9, 1989.

 Accordingly, petitioner's motion to compel is granted and

respondent is ordered to produce the documents requested in
Request No. 2 within 20 days of the date of this order.

                               John J. Morris
                               Administrative Law Judge