Pocahontas Coal Company, Inc. v. Secretary of Labor and Secretary of Labor v. Pocahontas Coal Company, Inc.

Plain-English summary

Pocahontas Coal challenged a pattern-of-violations notice that grouped 42 enforcement actions involving roof control and emergency preparedness at its Affinity Mine. Depositions showed that attorneys in the Labor Department's Solicitor's Office, rather than MSHA personnel, had selected and grouped the actions listed in the notice. Judge Margaret A. Miller held that the underlying facts about who made those choices, what information they used, and when and where they acted were relevant and discoverable, while legal advice, opinions, deliberations, and theories remained protected. She first ordered the Secretary to produce the MSHA employee most closely involved for a limited deposition. If that testimony was insufficient, Pocahontas could use focused interrogatories and document requests directed to a knowledgeable attorney, who would become a fact witness and could no longer represent the Secretary in the related cases. The Judge therefore granted the Secretary's protective-order request in part and denied it in part.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.56(b) and (c); 30 C.F.R. § 104.2
• Outcome: Limited discovery into the facts behind selection and grouping of the 42 pattern-notice actions was allowed, while privileged deliberations and legal theories remained protected.
• Subsequent review: The consolidated proceeding later reached Commission review in weva-2014-395-r-commission.
• Key point: Government lawyers who make agency enforcement choices may be required to disclose the nonprivileged facts behind those choices when no agency witness can supply them.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of
Administrative Law Judges

721 19th St.,
Suite 443

Denver, CO 80202-2500

Office: (303)
844-5266/Fax: (303) 844-5268

May 22, 2015

POCAHONTAS COAL COMPANY, INC.,

Contestant,

v.

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION, (MSHA),

Respondent.

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION, (MSHA),

Petitioner,

CONTEST PROCEEDING

Docket No. WEVA 2014-395-R

Order No. 3576153; 12/19/13

Mine ID: 46-08878

Mine: Affinity Mine

CIVIL PENALTY PROCEEDING

Docket No. WEVA 2014-1028

A.C. No. 46-08878-350475

v.

POCAHONTAS COAL COMPANY, INC.,

Respondent.

Mine: Affinity Mine

ORDER GRANTING
IN PART & DENYING IN PART

THE SECRETARY’S
MOTION FOR A PROTECTIVE ORDER

Before:            Judge Miller

These cases are before me as a result
of a contest filed by Pocahontas Coal Company and a petition for assessment of
a civil penalty filed by the Secretary pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977. These cases are part of a large
number of dockets that are related to the notice of pattern of violations (“NPOV”)
received by Pocahontas in October, 2013 and the subsequent 104(e) enforcement
documents issued at the Affinity Mine. The parties have engaged in discovery in
all of the dockets related to the NPOV, including written discovery and
depositions. On two earlier occasions the parties brought discovery disputes
before the Court, both of which primarily involved questions regarding the need
for, and scope of, depositions. Pocahontas has determined that it needs further
information about the decision to issue the NPOV at the mine and, as a result, served
a notice to the Secretary for the deposition of a number of the Secretary’s
attorneys. On April 13, 2015, the Secretary filed a Motion for Protective Order
after receiving the notice and Pocahontas filed a Response in Opposition to the
motion on April 16, 2015.

The Secretary represents that,
after Pocahontas completed the deposition of Kevin Stricklin, Administrator for
Coal Mine Safety & Health, it served a formal notice of deposition

upon the Secretary seeking to
depose Heidi Strassler, Associate Solicitor for Mine Safety and Health, Jason
Grover, Trial Counsel for the Mine Safety and Health Division of the Office of
the Solicitor, Douglas N. White, Associate Regional Solicitor for the Arlington
Regional Office of the Solicitor, and Robert S. Wilson, MSHA Counsel for the
Arlington Regional Office of the Solicitor at an agreed upon date. The notice
also requested each deponent to bring certain documents to aid in their
testimony. The Secretary objected to providing any of the attorneys for
deposition and filed this Motion for Protective Order.

After the motion was filed and all
written responses were received, the parties participated in a conference call
with the Court to discuss the issues and determine if a resolution could be
reached regarding the motion. Following discussion and argument, it was
determined that a resolution could not be reached, and that the Secretary could
not provide a non-attorney to supply the information sought by Pocahontas. The
information discussed during the conference call was transcribed and a copy
provided to the parties. In issuing this order, I rely not only upon the
motions filed, but also information learned during the conference call, as well
as information in the case file, including two motions for summary decision and
their attachments, a number of which are depositions. For reasons set forth
below, I GRANT in part and DENY in part the Secretary’s motion
and allow discovery with restrictions.

I.       BACKGROUND

On October 24, 2013 MSHA issued Written
Notice No. 7219153 (the “NPOV,” or the “notice”) in which it notified
Pocahontas that an alleged pattern of violations existed at Pocahontas’
Affinity Mine. Subsequently, MSHA issued multiple 104(e) orders to the mine, based
upon the NPOV. In challenging the “e” orders, Pocahontas also challenges the validity
of the NPOV. The depositions sought in this case primarily relate to the
issuance of the notice.

Over the years the Secretary has promulgated several
rules regarding the Mine Act’s pattern of violations provision and, in March
2013, implemented the current rule. 30 C.F.R. § 104. The rule provides that, at
least once each year, MSHA will review the compliance and accident, injury and
illness records of mines to determine if any mines meet the pattern of
violations criteria. The eight criteria to be addressed during the review are
listed in the standard. MSHA initially performs a computer generated screening
of its database using two sets of “screening criteria” that are related to the
standard and are detailed on the MSHA website. These screening criteria, which
address the number and types of violations at mines, speak to the first six of
the eight criteria named in section 104.2. A mine must meet the screening
criteria on MSHA’s website in order to be considered for the issuance of a
NPOV. Here, the screening was conducted in September 2013 and included
information and data for nearly 14,000 mines for a review period from September
1, 2012 through August 31, 2013. As a result of the initial screening, three
mines, including the Pocahontas Affinity Mine, were chosen for further review
to determine if the criteria for a pattern of violations were met.

Once a mine meets the initial screening criteria, the
district manager for the district in which the mine is located is notified that
the mine has met the screening criteria. Subsequently, the district manager
notifies the mine that it is being considered for a notice of pattern of
violations. In this case, the Affinity Mine was notified of its potential for a
NPOV by David Mandeville, the District Manager for District 4. Mandeville met
with the mine and, after the meeting, the mine provided a written response
outlining why it should not be considered for a NPOV. Following the meeting,
and after receipt of the letter from Pocahontas, Mandeville completed a
mitigating circumstances form and submitted it to the MSHA POV review panel for
a review of the mitigating circumstances.

The MSHA POV panel, in its review, is charged with
addressing the final two criteria listed in the mandatory standard, which are, other
information that demonstrates a serious safety or health management problem at
the mine, and mitigating circumstances. 30 C.F.R. §§ 104.2 (7) and (8). Here, the
panel, which was chaired by Jay Mattos, the Director of the Office of Assessments,
Accountability, Special Enforcement and Investigation, conducted its review and
generated a memo listing the panel’s findings. The memo was sent to Kevin
Stricklin, the Administrator for Coal Mine Safety and Health, and advised
Stricklin that the panel recommended that Pocahontas be placed on a pattern of
violations. Stricklin then determined that, given the initial screening and the
subsequent findings of the POV panel, in his discretion, the mine should
receive a NPOV. However, at some point prior to Stricklin’s final decision, the
body of the notice was drafted with two lists of citations and orders that make
up the two alleged patterns of violations included in the NPOV. Stricklin next
sent the NPOV, along with a cover letter, to the district office to present to
the mine in order to notify the mine that it had been placed on a pattern of
violations and, thereafter, inspections would be conducted as required by the Act’s
pattern of violations provision and the Secretary’s regulations implementing
the provision.

Based upon the Secretary’s regulations and procedures
identified on MSHA’s website, as well as the record before me in this case, there
are three distinct levels to determining whether a mine is subject to a NPOV. First,
MSHA conducts a purely quantitative data review of all mines in the country. Second,
the POV review panel conducts a review of the mitigating circumstances and
other factors, and, based on that review, makes a recommendation to the
appropriate MSHA Administrator. Third, and finally, the appropriate
Administrator conducts a final review of the materials presented to him, determines
if a pattern is shown, and ultimately decides if a pattern is demonstrated by
the citations and orders detailed in the proposed notice. 

I find that a mine operator may challenge the validity
of a NPOV in at least two ways. First, an operator may challenge the NPOV by establishing
that, at one or more of these three levels, the Secretary engaged in an abuse
of discretion. Second, the operator may challenge whether the citations and
orders identified in the NPOV properly describe a pattern of violations. The
depositions sought here are primarily for the purpose of determining whether the
agency abused its discretion when selecting the citations and orders listed in
the body of the notice of pattern violations, and categorizing those citations
and orders into groups which allegedly demonstrate two patterns of violations;
one related to roof control and one related to emergency preparedness.

In this case, the mine operator propounded interrogatories to
the Secretary, deposed Jay Mattos about the screening criteria and the POV
panel, and deposed both the district manager, David Mandeville, and the
assistant district manager, David Morris, about the mitigating factors, their
involvement in the process, and the preparation and presentation of the POV
letter to the mine. Finally, the mine deposed Kevin Stricklin, the
Administrator for Coal, regarding the entire POV process, including the
selection of the 42 citations and orders named in the NPOV and the grouping of
those enforcement documents into two patterns. Mattos, Mandeville and Morris
each stated in their depositions that they were not involved in the final step
of the process that included selecting and grouping the 42 enforcement actions.
Stricklin conducted the ultimate review and decision to issue the NPOV, and he was
involved in the selection of the 42 citations and orders only after the
attorneys for the Solicitor’s office chose which of the enforcement actions to
include and in what categories. Stricklin, in his deposition, explained that a CLR
and field office supervisor may have been involved in the selection and grouping
of the enforcement actions listed in the NPOV but, primarily, the selection was
made by attorneys in the Office of the Solicitor. During a conference call with
the parties, the Secretary confirmed that the selection was made by attorneys
from the Office of the Solicitor, and asserted that taking the deposition of
the “point person” in the MSHA district office, who was either the CLR or the
field office supervisor, would not yield any useful information about the
selection of the 42 enforcement actions. The depositions sought by Pocahontas
are aimed at discovering the facts surrounding the selection and grouping of
the 42 enforcement actions listed in the NPOV. That selection and grouping was
conducted not by an MSHA employee, but by an attorney for the Solicitor’s
office.

II.    PARTIES’
ARGUMENTS

The Secretary, in his motion for
protective order, argues that Pocahontas’ proposed depositions exceed the scope
of discovery and improperly seek to discover privileged information. The
Commission’s procedural rules limit discovery to relevant, non-privileged
materials. Deposing opposing counsel is strongly disfavored and, here, the
information sought regarding how the citations and orders listed in the NPOV
were selected is not relevant to the validity of the NPOV. Rather, the validity
of the NPOV depends solely on whether the violations listed in the notice
establish a pattern of violations, and does not depend upon the process the
agency went through to select those violations. Moreover, any of the desired information
that could be obtained from the attorneys would necessarily inquire into the
thought processes and opinions of those individuals and, accordingly, is
protected by the deliberative process privilege. Further, the documents,
memoranda and email that Pocahontas seeks to have the named individuals produce
are tangible things that were prepared in anticipation of litigation by MSHA
and the Office of the Solicitor, and are therefore protected under the work
product rule. Finally, the Secretary argues that the attorney client privilege
protects the communications between MHSA and the Office of the Solicitor
regarding the review of facts and data when weighing whether to issue the NPOV,
all of which was done in anticipation of this litigation.

Pocahontas, in its response in
opposition, states that, during the deposition of Stricklin, it learned that
attorneys from the Office of the Solicitor had factual knowledge as to why MSHA
issued the NPOV and, as a result, it must be allowed to depose the attorneys
named in the notice of deposition. There is no prohibition against deposing
opposing counsel when that counsel has engaged in fact finding. Here, the
information sought by Pocahontas from the attorneys, facts regarding what was
utilized in the selection and grouping of the 42 enforcement actions in the
NPOV, is relevant because it goes to the larger issue of the validity of the
NPOV. Moreover, as made clear by the depositions of MSHA personnel, there are
no other means to obtain this information other than to depose opposing counsel.
The information sought is crucial to the case given that it goes directly to the
issue of the validity of the NPOV and the question of whether its issuance was
arbitrary and capricious. Pocahontas argues that the information it seeks is
purely factual, does not involve opinions, recommendations or deliberations
between the Office of the Solicitor and its client, MSHA, and, as a result, is
not protected by the deliberative process privilege. Additionally, even if the
attorney work product rule protects the additional materials requested of the
potential deponents, Pocahontas has a substantial need for those materials
given that the attorneys are the only individuals who possess that factual
knowledge. Further, the attorney client privilege does not protect the
attorneys from deposition given that they have made themselves fact witnesses
and the information sought by Pocahontas does not involve a protected
communication between attorney and client. In the alternative, Pocahontas
argues that the Secretary has waived both the work product rule and attorney
client privilege through the previous disclosure of emails related to the NPOV
and Stricklin’s deposition testimony that individuals from the Solicitor’s
office have knowledge as to the 42 enforcement actions and the categories
identified in the NPOV.

III. ANALYSIS

I find that the factual information
sought by Pocahontas is relevant to the case and falls within the proper scope
of discovery in these proceedings. Pocahontas has raised the issue of whether
the Secretary abused his discretion in issuing the NPOV to the Affinity Mine
and a part of that analysis includes the procedure by which MSHA determined
what citations and orders issued at the mine demonstrate a pattern. Therefore,
the information sought is relevant to the issues raised by the mine. I find
further that the privileges asserted by the Secretary do not protect the
factual information sought by Pocahontas.

Commission Procedural Rule 56(b)
states 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). A judge may “limit discovery
to prevent undue delay or to protect a party or person from oppression or undue
burden or expense.” Id. at 2700.56(c).

The Secretary argued in two
previous discovery-related motions that the information Pocahontas sought to
discover was not relevant and was privileged. In each of those instances I
issued an order finding that while internal deliberations involving opinions,
thoughts, conclusions and legal theories leading up to the decision to issue
the NPOV were privileged, facts related to what information was considered in
issuing the NPOV may be relevant, were discoverable, and were not privileged. The
depositions were then limited to the facts known by each witness. The same is
true in this instance.

As is evident from the response in
opposition filed by Pocahontas, the mine seeks only factual information related
to a very specific piece of the POV process. The Secretary has provided no
evidence that suggests Pocahontas intends to ask questions related to the
deliberation process. “The fact that objections may be raised to specific
questions in a deposition does not provide a sufficient basis to bar the deposition[s]
altogether.” Rail Link, Inc., 20 FMSHRC 181, 182 (Jan. 1998) (ALJ). While
I agree with the Secretary that internal deliberations leading up to the
decision to issue the NPOV, including the weight given to the different pattern
criteria, and thoughts and opinions of the agency’s employees are privileged,
that protection does not extend to factual information considered by MSHA and
the attorneys when selecting and grouping the 42 enforcement actions in the
NPOV.

I have previously made clear that
the issue of the validity of the NPOV is properly before the Court in these proceedings
and the parties may obtain discovery of relevant, non-privileged material
related to that issue. Moreover, I have noted that, as part of its contest to
the validity of the NPOV, Pocahontas argues that the issuance of the NPOV was
arbitrary and capricious and that MSHA did not follow its own rules. I have
explained that in order for the Court to make a determination on this argument,
it is necessary to know which facts MSHA considered when making its
determination to issue the NPOV. Included in the determination to issue the
notice to Pocahontas, is the factual information the Secretary considered
regarding the selection and grouping of the 42 enforcement actions listed in
the NPOV.

On April 1, 2015 Pocahontas, after
taking the deposition of Kevin Stricklin, the MSHA Administrator for Coal,
first learned that it was the attorneys in the Solicitor’s office, not MSHA
personnel, who selected the 42 enforcement actions to include in the NPOV. Stricklin
also explained that the two groups of patterns contained in the notice were
chosen by the attorneys. Subsequently, Pocahontas sought to have the Secretary
supplement his answers to previous interrogatories and identify all
individuals, including each attorney in the Office of the Solicitor, with
knowledge as to why the mine received the NPOV. The Secretary rejected the
request, stating that the information was not relevant or reasonably calculated
to lead to the discovery of admissible evidence. Moreover, the Secretary
asserted that the information provided by attorneys from the Office of the
Solicitor would be protected by multiple privileges. Pocahontas then delivered
notices of deposition to Heidi Strassler, Jason Grover, Robert Wilson and Douglas
White, all attorneys in the Office of the Solicitor who have represented MSHA
or otherwise been involved in this matter. During the course of a telephone
conference, the Secretary agreed that it was the attorneys from the Solicitor’s
office who determined which citations formed a pattern and which should be
included in the notice provided to the mine. However, the Secretary did not
indicate which of the named attorneys, if any, were involved in those
decisions.

The Secretary, citing Hickman
v. Taylor, 329 U.S. 495, 516 (1947), argues that taking the deposition of
an attorney is strongly disfavored. The Secretary argues that the rationale for
keeping attorneys out of litigation is based on the recognition that allowing
the deposition of counsel on relevant, non-privileged information can interrupt
pending litigation. That disruption however, is more evident in cases where a party
is represented by only one or even two attorneys who are deeply involved in
preparing and litigating the case. Here, the Secretary is represented by several
attorneys from the Solicitor’s office and several more have been involved in
the pattern of violations issues. Therefore, the risk of interruption or
disruption caused by the deposition of only one of the Secretary’s attorneys is
minimal at best. Both parties acknowledge that the Eighth Circuit’s decision in
Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986) is
instructive as to when opposing counsel may be deposed. There the court
determined that deposing an attorney should be limited to circumstances where
the party seeking the deposition has shown that (1) no other means exists to
obtain the information than to depose opposing counsel; (2) the information
sought is relevant and non-privileged; and (3) the information is crucial to
the preparation of the case. Id. at 1327.

Based on the Secretary’s
representations, the first and third elements of the Shelton test are
easily met. In this case the Secretary was given the opportunity to provide an
agency person who could attest to the facts surrounding the choice of the
citations listed in the NPOV. However, the Secretary ultimately conceded that no
one at MSHA could provide that information because it was the attorneys in the
Office of the Solicitor who made the decision. As a result, given that counsel
for the Secretary selected and grouped the enforcement actions included in the
NPOV, there are no other means for Pocahontas to obtain the factual information
surrounding the choice of the 42 enforcement actions listed in the NPOV. Moreover,
and as discussed above, the information is crucial to Pocahontas’ argument that
the Secretary has abused his discretion and that the NPOV was invalidly issued.
Accordingly, I find that the first and third elements have been met.

With regard to the second Shelton
element, I find that certain information sought by Pocahontas regarding this
discrete part of the NPOV process is both relevant and non-privileged. The
Secretary, in addressing the second element of the Shelton test, argues
first that the information sought by Pocahontas is irrelevant. I disagree and
find that the information sought by Pocahontas regarding what was considered
when selecting and grouping the citations and orders listed in the NPOV is
relevant. Second, I find that the facts, including who, what, where and when,
as they relate to the selection of the citations and orders to be included in
the written notice, are not privileged information.

Mine operators have the right to
understand the pattern of violations process as it applies to them. Given that an
operator may challenge the issuance of a NPOV by showing that the Secretary, in
issuing the NPOV to the operator, abused his discretion and acted in an arbitrary
and capricious manner, factual information about what the Secretary considered when
selecting and grouping the enforcement actions listed in the NPOV goes directly
to the question of whether the Secretary abused his discretion.  The mine
operator is entitled to learn facts such as when the decision was made about
the citations and orders that form the pattern, where the decision was made,
who was involved, and what documents and information were before the
decision-makers. Even if Stricklin made the final decision to accept the NPOV
and the patterns described therein, as alleged by the Secretary, the mine is
entitled to understand the process that was used to determine what information
was provided to him and who was responsible to provide that information. Stricklin
understood that the attorneys for the Secretary played a substantial role in
selecting the enforcement actions to be listed and the Solicitor agreed that it
was attorneys, not agency employees, who made the decision for the agency. MSHA
had only a “point person” involved in the process, and in the opinion of the
Solicitor deposing that person would yield little information as to the
selection process. Therefore, the mine operator is correct that it has not had
access to the facts underlying this particular step of the NPOV process.  

The Secretary, in addressing the
second element of the Shelton test, argues not only that the information
is irrelevant but also that the information sought by Pocahontas is protected
by the deliberative process privilege, work product rule, and attorney client
privilege. However, as more clearly spelled out below, there are facts that can
be disclosed without seeking information that is protected by these privileges.
In addition, the Secretary waived his right to assert certain privileges when attorneys
for the Solicitor’s office operated beyond their role as advisors to the agency
and instead took agency action on their own.

The Secretary first asserts that
any information which could be obtained from the named attorneys about why
certain enforcement actions were included in the NPOV would inquire into the
thoughts, process and opinions of those individuals and is, therefore,
protected from discovery by the deliberative process privilege.

The deliberative process privilege
is intended to protect the “‘consultative functions’ of government by maintaining
the confidentiality of ‘advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are
formulated.’” In Re: Contests of Respirable Dust Sample Alteration Citations,
14 FMSHRC 987 (June 1992) (quoting Jordan v. U.S. Dept. of Justice, 591
F.2d 753, 772 (D.C. Cir. 1978)). In order to assert the privilege, the material
sought must be “pre-decisional” and “deliberative.” Id. at 992. A communication
is “pre-decisional” when it is made prior to the adoption of the agency policy
or decision. Id. A communication is “deliberative” if it is actually “related
to the process by which policies are formulated.” Id. However, purely
factual material that does not expose the decision making process is not
protected. Id. at 993 (citing Exxon v. Doe, 585 F. Supp. 690, 698
(D.C. 1983)). A court charged with determining whether to recognize the
privilege must balance the public interest in protecting the information with
the litigant’s need for that same information. See Clinchfield Coal Co.,
23 FMSHRC 347 (Mar. 2001) (ALJ) (Citing United States v. Nixon, 418 U.S.
683 (1974); 8 Wright and Miller, Federal Practice and Procedure § 2019
at 167-169 (1970)).

I find that factual information
relied upon by the Secretary, his attorneys, and MSHA in selecting and grouping
the 42 enforcement actions contained in the NPOV is not protected by the
deliberative process privilege. Here, while the selection of the 42 citations
prior to the final decision to issue the NPOV may be pre-decisional, the mine
is not seeking the thought process or analysis of that decision. Instead, it
seeks the facts relied upon in coming to the decision to include the
enforcement documents. Undoubtedly much of the communication between the
attorneys and MSHA included thoughts, process, and opinions of those
individuals as to why they selected, and how they grouped, the 42 enforcement
actions. However, in order to form those thoughts and opinions, and select and
categorize the 42 enforcement actions, the attorneys had to rely on facts
before them. Accordingly, while many of the communications between the
Secretary and his counsel are protected by the deliberative process privilege,
facts regarding what information the attorneys considered when selecting and grouping
the 42 enforcement actions included in the NPOV are not protected by this
privilege.

The Secretary next asserts that the
work product rule protects against the disclosure of materials in the
possession of the attorneys from the Office of the Solicitor related to why
Pocahontas received the NPOV.  

In Asarco Inc., 12 FMSHRC
2548, 2557-2558 (Dec. 1990) the Commission explained that the work product
privilege is a “qualified immunity against discovery.” A party may withhold
otherwise discoverable materials if the materials are (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. Id. at
2558; Fed R. Civ. P. 26(b)(3). However, even where litigation is contemplated,
if the document was generated in the ordinary course of business, rather than
for purposes of litigation, then the document is discoverable. Asarco Inc.,
12 FMSHRC 2548, 2558-2559 (Dec. 1990). Moreover, the party seeking discovery of
the materials may be able to overcome the protection if it can show a
substantial need for the materials in order to prepare its case and is unable,
without undue hardship, to obtain the substantial equivalent of those materials
by other means. Asarco Inc., at 2558.

I find that that the work product
rule applies to some of the materials sought, but that, with limitations, other
of those materials are discoverable. The notice of deposition requests the
deponent to produce the “entire file, including but not limited to, any and all
notes, documents, memoranda, e-mail correspondence, and any other
correspondence . . . which relates in any manner to his knowledge as to why . .
. ” the mine received the NPOV notice. The request further seeks any document
used to refresh memory. The request is very broad and seeks documents that go
beyond the action of choosing the 42 citations and orders to list in the
notice. Therefore, my order is limited to any fact contained in a document that
relates to the selection of the citations and orders to include in the NPOV
issued to Pocahontas along with facts related to the selection and inclusion of
the two categories of pattern.

Pocahontas’ request for production
of files, notes, documents, memoranda, emails, and other correspondence
involves documents and tangible things and, therefore, step one of the test is
met. The question of whether the documents were prepared in anticipation of
litigation is a more difficult one. The Secretary argues that, because the
attorneys were involved in the review of the 42 enforcement actions listed in
the NPOV, litigation was clearly anticipated. However, Pocahontas argues that
litigation could not have been contemplated because, at the time the 42
enforcement actions were selected and put into categories, no 104(e) order had
been issued which would have allowed the mine to contest the validity of the
underlying NPOV.

I reject the Secretary’s argument
that simply because attorneys were involved the materials sought were prepared
in anticipation of litigation. The involvement of attorneys cannot, by itself,
support the conclusion that litigation was anticipated. Otherwise, the simple “involvement”
of attorneys could be used to shield most any document or tangible thing from
discovery. I also reject the argument of the mine that because no 104(e) orders
had been issued, the documents could not have been generated in anticipation of
litigation. Instead, I find that there may be documents included in the list
that were in fact generated in anticipation of litigation, but others that were
not. Here, the NPOV itself is not a pleading or charging document. Rather it is
a notice generated in MSHA’s ordinary course of business. Undoubtedly, some of
the documents sought by Pocahontas from the attorneys were generated in the
ordinary course of business leading up to the decision to issue the NPOV, but
the actual drafting of the NPOV was simply a notice, like any other notice
drafted by MSHA. I cannot agree that by virtue of the fact that MSHA was
drafting an enforcement document, it was done in anticipation of litigation. The
same would be true for every citation, order, safeguard or other notice that
MSHA is required to prepare. The Secretary’s decision to involve the attorneys,
and ultimately have them make the decisions regarding what to include in an
MSHA document under these particular circumstance, cannot now be used to shield
facts from Pocahontas. As a result, I find that materials which include facts regarding
the process of choosing what to list in the notice are not protected. 

Even if the work product rule had
applied to all materials, I find that Pocahontas has a substantial need for facts
regarding what data and information were considered by MSHA and the attorneys
when selecting and grouping the 42 enforcement actions. I agree with Pocahontas
that if the attorneys in the Office of the Solicitor who selected and grouped
the enforcement actions in the NPOV were the only individuals involved in that
activity, then they may have made themselves fact witnesses to this matter. However,
the Court is not willing to grant Pocahontas carte blanche to access all
information in the materials sought, especially with regard to any thoughts and
opinions concerning the issuance of the NPOV. As the Commission has stated, if
the court finds that materials should be produced, it is incumbent upon the
court to “‘protect against disclosure of the mental impressions, conclusions,
opinions, or legal theories of an attorney or other representative of a party
concerning the litigation.’” Asarco Inc., at 2558 (quoting Fed. R. Civ.
P. 26(b)(3)). While the Court agrees that Pocahontas should have access to the
materials sought, access should only extend to certain factual information
regarding the selection and grouping of the enforcement actions.

With regard to Pocahontas’
argument that the Secretary has waived protection under the work product rule,
I agree in part. To the extent that the Secretary has already disclosed certain
materials, inadvertently or otherwise, those materials are no longer protected
under the work product rule. However, with regard to materials which have not
yet been turned over, and involve information beyond facts relied upon by the
attorneys and MSHA in selecting and grouping the 42 enforcement actions, the
Secretary has not waived work product or other protection.

Finally, the Secretary asserts in
his motion that the information sought in the depositions is subject to the
attorney client privilege. The attorney client privilege protects the confidential
communications between attorneys and their clients. It is designed to
“encourage full and frank communication between attorneys and their clients”
and “recognizes that sound legal advice or advocacy serves public ends and that
such advice or advocacy depends upon the lawyer’s being fully informed by the
client.” Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981). However, the
privilege is not without its limits. As the Court in Upjohn explained,
the privilege extends only to communications and does not protect disclosure of
the underlying facts. Id. at 395-396.

First, there is some question
whether there was any privileged advice given between attorney and client since
the Solicitor apparently took over the process and made the decisions without
discussing those decisions with a client. Next, it is fair to assume that the
Office of the Solicitor was provided with some facts from its client, or
otherwise sought out facts on its own, in order for its attorneys to select the
42 enforcement actions that it believes demonstrate a pattern of violations. Accordingly,
I find that facts relied upon by the attorneys when selecting and grouping the
42 enforcement actions are not protected by the attorney client privilege. Obviously,
as generally discussed above in the context of the other privileges, communications
between MSHA and the attorneys for the Office of the Solicitor which involve internal
thoughts, opinions, conclusions, and legal theories remain privileged and are
not subject to discovery. While Pocahontas also argues that the Secretary has
waived the attorney client privilege, I disagree. The privilege remains intact
for communications which have not already been disclosed and involve thoughts,
opinions, conclusions, legal theories, etc.

In addition to the arguments
raised in the motion for protective order, the Secretary also argued during the
telephone conference call with the parties that, here, the attorneys’ decision to
include certain citations and orders, as well as the groupings of those
enforcement actions, in the NPOV is one of prosecutorial discretion. In making
the argument the Secretary asserted that, just as a prosecutor has discretion
regarding what to include in an indictment in a criminal matter, the attorneys
for the Secretary have discretion when deciding which enforcement actions to
include in the NPOV.  I disagree. I find that the NPOV process is not akin to
an indictment or the filing of a lawsuit. Rather, the NPOV is a notice from the
agency that the mine has problems with its safety record and that MSHA has
determined it is necessary to provide more scrutiny in order to help the
operator become compliant and provide a safer workplace. While a NPOV may
anticipate some litigation, it is not a pleading or other charging document. Even
if it were, it must be based upon facts and those facts should be shared with
the entity being put on notice. While I agree that the agency may seek advice
from its attorneys in the Office of the Solicitor, here the actions of at least
some attorneys went beyond advice and amounted to decision making regarding the
contents of the NPOV. For that reason, and the reasons discussed above, the
request for a protective order is denied in part and granted in part.  

IV. ORDER

I am mindful of the disfavor with
which courts order the deposition of opposing counsel. Accordingly, while the
Secretary asserts that the deposition of the CLR and field office supervisor
mentioned by Stricklin in his deposition will not yield information that is of
use to Pocahontas, the Secretary is nevertheless ORDERED to produce for
deposition, within the 14 days of the date of this order, the person from MSHA
who was most closely involved in the selection and categorization of the 42
enforcement actions included in the NPOV. Pocahontas may question the witness
about factual information that was relied upon when selecting and grouping the
42 enforcement actions in the NPOV, where the selection and grouping took
place, when it took place, who was involved in the selection, and what facts,
if any, were relied upon in making the selection. Internal thoughts, opinions,
and conclusions remain protected and are not discoverable.

In the event Pocahontas is unable
to learn the facts its needs from the deposition of the CLR or field office
supervisor, Pocahontas is ORDERED to, within 7 days of the deposition, propound
interrogatories to the Secretary for the sole purpose of discovering facts
related to the selection of the citations and orders that were listed on the
notice of pattern of violations issued to the mine. The mine may include a
request for production, and any document that is subject of an objection shall
be submitted to the Court within ten days of the date of the objection for an in
camera review. All documents may be redacted so that they include only
facts. The interrogatories will be answered within ten days by an attorney of
the Secretary’s choosing who

has direct knowledge of the facts Pocahontas seeks
to discover. The designated attorney for the Secretary is ORDERED to,
within 10 days of service of the interrogatories, respond, in affidavit form,
and include a description of their involvement in the selection of the
enforcement documents for the NPOV. The same facts that were discoverable in
the deposition remain discoverable in the interrogatories. The attorney who
answers the interrogatories will, from that point forward, be a fact witness in
this matter and will NOT be able to represent the Secretary for the remainder
of this case or in any other case involving the subject NPOV. In the event
Pocahontas does not obtain the information it needs, it may file a motion
within 10 days of the date of service of the Secretary’s interrogatory
response. If Pocahontas does not file such a motion, the parties are ORDERED
to, within 20 days of the date of service of the Secretary’s interrogatory
response, supplement the record for the pending motions for summary decision
with any new information learned from the depositions and interrogatories that
is relevant to its arguments in this case.

/s/ Margaret A. Miller

Margaret
A. Miller

Administrative
Law Judge

Distribution:

Jason Grover, Francine Serafin, Office of the
Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd Floor West,
Arlington, Virginia 22209

Jason Nutzman, Dinsmore & Shohl, LLP, 900 Lee
St. Suite 600, Charleston, WV 25301

Robert Huston Beatty, Dinsmore & Shohl, LLP, 215
Don Knotts Blvd., Suite 310, Morgantown, WV 26501