Secretary of Labor v. Eastern Associated Coal LLC

Plain-English summary

MSHA cited Eastern Associated Coal after two apprentice miners allegedly worked near an unguarded moving belt tail pulley, and a related section 110(c) investigation followed. Eastern sought inspector and special-investigator interview notes that the Secretary withheld as attorney work product. Judge Jeffrey Tureck held that the notes were created before particular litigation was contemplated and, for the inspector's notes, during ordinary inspection work, so the work-product privilege did not apply. He granted Eastern's motion to compel and ordered disclosure within 10 days. Because the miners' statements were covered by the informant's privilege, the Secretary could redact names and only the identifying information necessary to protect them.

Decision snapshot

• Underlying standard: 30 C.F.R. § 75.1722(c)
• Outcome: Eastern's motion to compel was granted, with miner-identifying information permitted to be redacted.
• Key point: MSHA interview notes are not protected work product merely because an investigation might later lead to litigation; particular litigation must have been contemplated when they were prepared.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue, NW, Suite 520-N

WASHINGTON, DC 20004-1710

February 5, 2013

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner,

v.

EASTERN ASSOCIATED COAL LLC,

Respondent

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CIVIL PENALTY PROCEEDING

Docket No. WEVA 2011-932

A.C. No. 46-01456-244760

Mine: Federal No. 2

ORDER COMPELLING DISCOVERY

Before:Judge Tureck

On May 4, 2010, Joseph C. Statler, who was the former General Manager of Production
at Eastern Associated Coal’s Federal No. 2 Mine, allegedly instructed two apprentice miners to
shovel slop and spillage, and to remove debris from underneath and in close proximity to an
unguarded belt tail pulley while the belt was in motion. As a result, 104(d)(2) Order No. 8025255
was issued against Eastern Associated Coal LLC (“Eastern”or “Respondent”) for a violation of
30 C.F.R. 75.1722(c). It is an S&S order that alleges a reasonable likelihood of fatal injuries with
a proposed penalty of $70,000.

Following the incident and several interviews, MSHA initiated an investigation under
§110(c) of the Act, 30 U.S.C. §820(c). On March 14, 2011, the Secretary filed a Petition for
Assessment of Civil Penalty against Eastern. On April 12, 2011, Eastern filed its answer and
served the Secretary with its First Set of Interrogatories, Requests for Admissions, and Requests
for Production of Documents. This case was assigned to me on June 27, 2011, and I stayed the
case on September 13, 2011 pending the resolution of the §110(c) investigation. Further
extensions were issued, and the stay was lifted on March 1, 2012.

Eastern states in its Motion to Compel that it never received a complete response to its
discovery requests from the Secretary. Eastern has filed a Motion to Compel Discovery and a
Statement Supporting Motion to Compel Discovery (“Resp’t Mot.”). The Motion, filed on
August 15, 2012, seeks to compel the Secretary to provide documents related to Eastern’s
discovery requests. The Secretary filed a Response in Opposition to the Respondent’s Motion to
Compel Discovery (“Sec’y Resp.”) on September 10, 2012 and Eastern filed a reply to the
Secretary’s response on September 18, 2012. For the reasons which follow, the motion is
granted.

The documents Eastern still seeks, which the Secretary has withheld on the ground of the
work-product privilege, are as follows: hand-written notes of interviews of five miners conducted
by MSHA inspector Stephen Wilt on May 11 and 12, 2010; notes of interviews of four miners
who were interviewed on July 1, 2010, July 12, 2010, July 21, 2010, and September 13, 2010,
respectively, apparently as part of the special investigation; and a report of an interview of Mr.
Statler by the MSHA special investigator which took place on September 29, 2010.

Eastern argues that none of these statements and notes were prepared in anticipation of
litigation and do not meet the requirements for protection under the work-product privilege.
Resp’t Mot. at 7-9. It also argues that even if the documents were prepared in anticipation of
litigation, it should still be permitted to receive the information because it has a compelling need
for the material and it lacks access to a fair substitute. Id. at 7.

Since I hold that the documents
Respondent seeks are not work-product, I will not address the latter issue.

In her response, the Secretary states that she has provided counsel for Eastern a summary
of the special investigator’s interviews of the four miners and the interview of Mr. Statler. Sec’y
Resp. at 4. She argues that the summaries should be sufficient to meet Eastern’s needs; that the
full documents are privileged under the work-product rule; that Eastern could obtain substantial
equivalents of the materials with minimal effort; that Eastern cannot establish a substantial need
for the documents; and that providing the full documents would violate the Informant’s Privilege.
Sec’y Resp. at 3-4, 9-12.

Work-Product Privilege

The first issue to be resolved is whether the work-product privilege is applicable to the
reports of interviews of Mr. Statler and four miner witnesses by the special investigator. If these
documents are not work-product, the notes of interviews conducted by the mine inspector as part
of his inspection, which were prepared even earlier than the special investigator’s, cannot be
work-product. The Commission has held that the work-product rule protects “(1) documents and
tangible things, (2) prepared in anticipation of litigation or for trial (3) by or for another party or
by or for that party’s representative.” Asarco, Inc., 12 FMSHRC 2548, 2557-58 (Dec. 1990). The
burden is on the party seeking to invoke the privilege to demonstrate that this three-part test has
been met.

Here, the first and last aspect of the three part test apply since the special investigator’s
interview reports are clearly “documents” that were prepared “by or for another party or by or for
that party’s representative.” Therefore, whether the work-product privilege applies hinges on
whether the special investigator’s witness statements were prepared in anticipation of litigation.
Asarco involved a discovery dispute over the notes that a special investigator made while
interviewing a supervisory MSHA inspector regarding his conversation with an attorney for the
Secretary. The Secretary relies on the following quotation from Asarco to support her position:

A major function of an MSHA special investigation is to determine whether
litigation should be commenced under section 110(c) or (d) of the Mine Act. 30
U.S.C. § 820 (c) & (d). A special investigator does not know at the outset of his
investigation whether charges will be filed in that particular case. Nevertheless,
the purpose of his investigation is to allow the Secretary to determine whether a
case should be filed.... [T]his civil penalty case, brought under section 110(a), 30
U.S.C. § 820(a), is closely related litigation and it further appears that it could
fairly be said that the documents were prepared in anticipation of that litigation.

Asarco at 2558.

The Secretary argues that this holding in Asarco is dispositive of the issue of whether the
notes and interview reports of the special investigator are privileged work-product. I disagree.
First, the facts in Asarco which led the Commission to hold that the special investigator’s notes
are protected by the work-product privilege are significantly different from those in this case. For
one thing, in Asarco an attorney was already involved in the case, which indicates that litigation
was either under consideration or had begun; and the document sought through discovery was the
special investigator’s notes of a conversation a supervisory inspector had with an attorney, not
simply notes and reports of witness interviews. The notes of the conversation with an attorney
which were held to be protected in Ansarco were likely to show the attorney’s mental
impressions, conclusions, opinions and/or legal theories, the very things that the work-product
privilege is intended to protect from disclosure. See, e.g., Hickman v. Taylor, 329 U.S. 495
(1947).

But the work-product privilege is not intended to apply to documents prepared prior to
the involvement of an attorney which the attorney subsequently uses in his or her trial preparation
or plans on proffering during litigation. Here, there is no indication that an attorney was involved
during the special investigation. That in Asarco an attorney was already in the picture, and notes
of a conversation with the attorney was the document in dispute, makes Asarco materially
different from the matter at hand.

That brings me to the second critical difference between Asarco and this case. That an
attorney was involved in Asarco indicates that the case was relatively far along when the special
investigator’s notes were prepared, at a point where it is likely that litigation was at least being
considered even if the decision to litigate had not yet been made.

On the other hand, in this
case, three of the four interviews conducted by the special investigator were conducted within a
little more than two months of the initial inspection, and the fourth was conducted within four
months. It is highly unlikely that an attorney was involved in the special investigation even on the
date of the latest interview, September 29, 2010, since the Petition of the Secretary of Labor for
Assessment of Civil Penalty against Mr. Statler was not issued until December 21, 2011, almost
15 months later. Even the Secretary of Labor’s Petition for the Assessment of Civil Penalty
against Eastern, assuming the penalty proceeding against Eastern is even relevant to determining
whether the special investigator’s interview notes are protected by the work-product privilege,
was not issued until March 14, 2011, almost six months after the latest interview; and since the
petition was prepared by a Conference and Litigation Representative, not an attorney, it can be
stated with some certainty that an attorney was not involved in Eastern’s case on September 29,
2010.

That the special investigation was not conducted on behalf of an attorney, and a penalty
assessment against Mr. Statler was not issued until the very end of 2011, make it difficult to
understand how the investigator’s notes of interviews, the latest of which was conducted on
September 29, 2010, could be have been prepared in anticipation of litigation. As the
Commission held in Asarco:

[P]articular litigation must be contemplated at the time the document is prepared in
order for the document to be protected.

Asarco, supra, at 2558 (citation omitted) (emphasis added).

The Secretary also cited the Commission’s decision in Consolidation Coal Co., 19
FMSHRC 1239 (July 10, 1997), to support her position that the special investigator’s notes of
interviews were privileged. But rather than support her position, this decision actually supports a
contrary conclusion. In Consolidation Coal, in holding that memoranda prepared by a special
investigator were protected by the work-product privilege, the Commission stated:

We further find that the documents have been ‘prepared in anticipation of
litigation or for trial,’ because each was prepared after MSHA had filed civil
penalty proceedings against Consol ....

Id. at 1243 (emphasis added). As was pointed out above, the civil penalty proceedings against
both Eastern and Mr. Statler were filed well after the special investigator conducted the
interviews in question.

Accordingly, the case law does not support the Secretary’s assertion that the special
investigator’s reports of interviews in this case are protected by the work-product privilege, and I
find that they are not protected. In addition to the factors discussed above, the Secretary’s
contention that special investigations are not conducted in the ordinary course of business is
unsupported in the record. Although special investigations may be conducted in connection with
only a relatively small percentage of mine inspections, it does not follow that they are conducted
outside the ordinary course of the special investigators’ work; and if they were conducted in the
ordinary course of business, they cannot be held to be work-product. But regardless of whether
the special investigations were conducted in the ordinary course of business, the above
discussion shows that it is highly unlikely an attorney was involved in the special investigation,
and “particular litigation” was not contemplated, when the interviews by the special investigator
in this case were conducted. That the results of the special investigation could lead to litigation
does not make the special investigators’ interview reports work-product. Nothing in Asarco or
Consolidation Coal leads to a contrary conclusion.

Thus, I conclude that the special investigator’s interview notes of Mr. Statler and the four
miners must be turned over to Respondent since they are not protected by the work-product
privilege.

The second issue to be resolved is whether Inspector Wilt’s handwritten notes that
document interviews conducted on May 11 and 12, 2010 of five miners are protected by the
work-product privilege. Clearly, they are not. For they were prepared in the inspector’s ordinary
course of business, at a time when litigation could not possibly have been contemplated. Further,
at that preliminary stage, an attorney could not have been involved in the matter. Accordingly,
Inspector Wilt’s notes of May 11 and 12, 2010 interviews must be provided to Respondent.

Finally, the informant’s privilege is applicable to individuals furnishing information to
government officials concerning possible violations of the Mine Act. Secretary/Logan v. Bright
Coal Co., Inc., 6 FMSHRC 2520, 2524 (Nov.1984). Here, the informant’s privilege applies to
both the special investigator and mine inspector’s notes of interviews of the miners since their
statements concern an alleged violation of the Mine Act. Thus, the Secretary may redact the
names and other pertinent identifying information from the interview notes regarding the miners.
The Secretary argues that producing the documents will require extensive redactions in order to
protect the identities of the miners. Nevertheless, the Secretary must still provide the documents,
and redact only what is absolutely necessary to protect the identity of the miners. 

ORDER

Based on the analysis above, Eastern’s Motion to Compel Discovery is GRANTED.

It is ORDERED that, within 10 days of this order, the Secretary shall provide copies of
Mr. Statler’s interview statements, MSHA inspector Stephen Wilt’s notes of his interviews of
miners on May 11 and 12, 2010, and the notes of the interviews of miners by the special
investigator on July 1, 12 and 21, 2010, and September 13, 2010, provided that the names of the
miners and other information clearly identifying them may be redacted.

/s/ Jeffrey Tureck

Jeffrey Tureck

Administrative Law Judge

Distribution (Certified Mail):

Judson H.P. Dean, Esq., U.S. Department of Labor, Office of the Regional Solicitor, 170 South
Independence Mall West, Suite 630E, Philadelphia, PA 19106

Michael Cimino, Esq. and Ben McFarland, Esq., Jackson Kelly PLLC, Three Gateway Center,
Suite 1340, 401 Liberty Avenue, Pittsburgh, PA 15222-1000