Consolidation Coal Company

Plain-English summary

Consolidation Coal sought discovery in civil penalty proceedings arising from the Blacksville No. 1 Mine explosion and asked for documents from MSHA’s investigation and internal review. Judge Gary Melick rejected the Secretary’s position that some interview memoranda were protected work product because Consol had a substantial need for them and no other way to obtain the same information. He also ordered production of specified questions and answers from an MSHA internal-review file, finding that the material was factual rather than deliberative and that Consol had a substantial need for it. The motion to compel was granted in part and denied in part, the scheduled discovery hearings were canceled, and the parties were directed to arrange a new trial date.

Decision snapshot

• Governing rules: 29 C.F.R. §§ 2700.56(b) and 2700.59
• Outcome: The Secretary was ordered to produce specified discovery within 10 days; other discovery requests were denied, and the underlying proceedings continued.
• Key point: Discovery material is not withheld as privileged when the requesting party shows substantial need and cannot obtain the same information without undue hardship.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

                        June 6, 1996

SECRETARY OF LABOR, : MASTER DOCKET WEVA 93-146-B
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Blacksville No. 1 Mine
Petitioner :
v. :
CONSOLIDATION COAL COMPANY, :
Respondent :
ORDER GRANTING IN PART AND DENYING IN PART CONSOLIDATION COAL
COMPANY=S MOTION TO COMPEL DISCOVERY
Background:

 These civil penalty proceedings were filed by the Secretary

with this Commission on March 9, 1993, but were thereafter stayed
at the request of the Secretary because of a related criminal
investigation. By letter dated December 21, 1994, the Secretary
advised that the criminal investigation had been concluded and
that, while the basis for the stay was no longer applicable,
because of other significant litigation the attorneys for both
parties were involved in and, because of the extensive discovery
the parties anticipated in these proceedings, the parties were
seeking a further delay in trial scheduling.

 The cases were subsequently scheduled for trial on August

15, 1995, but the parties again requested a continuance because
of the need for additional discovery and the Acomplex nature of
the issues involved@. Hearings were accordingly rescheduled to
commence on October 31, 1995, in several of the related cases.
The instant cases are among those for which the parties requested
an additional continuance because of the severability of the
issues and limited availability of expert witnesses. Hearings in
the instant cases were then rescheduled to commence on
December 12, 1995.

 Further continuances were necessitated by the disruption

caused by several budgetary shutdowns of the government.
Hearings were thereafter rescheduled to commence on March 5,
1996. However, on February 22, 1996, Consolidation Coal Company
(Consol) moved pursuant to Commission Rule 59, 29 C.F.R.
' 2700.59, for an order compelling discovery and it was necessary
to again postpone trial. Two of the four categories of
information requested in that motion remain at issue, i.e. Aall
documents prepared by MSHA Investigator George Bowman concerning

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the investigation of the Blacksville No. 1 Mine explosion@ and
Aall documents prepared, used or reviewed in connection with the
drafting of the >Internal Review of MSHA=s Actions at the
Blacksville No. 1 Mine= report published on August 17, 1993".
(See Consolidation Coal Company=s second motion to compel
discovery filed on May 10, 1996).

1. Documents prepared by Investigator Bowman:

   Deputy Associate Solicitor Thomas Mascolino states in his
   memorandum accompanying the Secretary=s response to the Motion to
   Compel Discovery that some of the documents prepared by
   Investigator Bowman were being withheld from the Secretary at the
   direction of the U.S. Attorney for the Northern District of West
   Virginia pursuant to Rule 6(e) of the Federal Rules of Criminal
   Procedure. The Secretary accordingly maintains that those
   documents are not in his Apossession, custody, or control@ and
   are not therefore within the scope of Rule 34 of the Federal
   Rules of Civil Procedure. The Secretary further notes that
   Consol may obtain those documents by filing an appropriate motion
   under Fed.R. Crim. P.6(e)(3)(D) with the Office of the United
   States Attorney for the Northern District of West Virginia. The
   Secretary=s position in this regard is supported by law and is
   accordingly upheld.

   The Secretary has also provided the undersigned with what
   has been designated as all remaining documents prepared by MSHA
   Investigator Bowman, for in-camera review of the Secretary=s
   claimed privilege under the work product rule. The documents,
   five memoranda of interviews (and the notes of one interviewee),
   contain only the reported statements of the interviewees and do
   not contain any mental impressions, conclusions, opinions or
   legal theories of an attorney or other representative of a party
   concerning the litigation. The work product privilege has been
   codified in the Federal Rules of Civil Procedure, Rule 26(b)(3),
   which provides in relevant part:

   . . . a party may obtain discovery of documents and
   tangible things otherwise discoverable under subdivision
   (b)(1) of this rule and prepared in anticipation of
   litigation or for trial by or for another party or by or for
   that other party=s representative (including the other
   party=s attorney, consultant, surety, indemnitor, insurer,
   or agent) only upon a showing that the party seeking
   discovery has substantial need of the materials in the
   preparation of the party=s case and that the party is unable
   without undue hardship to obtain the substantial equivalent
   of the materials by other means. In ordering discovery of
   such materials when the required showing has been made, the
   court shall protect against disclosure of the mental
   impressions, conclusions, opinions, or legal theories of an
   attorney or other representative of a party concerning the
   litigation.

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Page 3

 The Commission has explained that the work product privilege

offers qualified immunity against discovery for materials that
are:

 1.   documents and tangible things;
 2.   prepared in anticipation of litigation or for trial;
 and
 3.   by or for another party or by or for that party=s
 representative.

Secretary of Labor v. ASARCO, 12 FMSHRC 2548, 2558
(December 1990) (citing 8 C. Wright & A. Miller, Federal Practice
and Procedure ' 2024, pp. 196-97 (1970); 6 J. Moore, J. Lucas &
G. Grotheer, Moore=s Federal Practice & 26.64 (2d ed. 1989)).
The Secretary claims in this case that the subject memoranda
constitute (1) documents and tangible things, (2) prepared in
anticipation of litigation, and (3) by or for another party or by
or for that party=s representative. As noted, the subject
memoranda may nevertheless be subject to discovery Aupon a
showing that the party seeking discovery has substantial need . .
. and that the party is unable without undue hardship to obtain
the substantial equivalent of the materials by other means.@ Id.
at 2558.

 The Secretary claims that all of the interviewed individuals

provided testimony to the accident investigation team in the
presence of Consol=s counsel and representatives. He notes that
Consol was therefore aware of these witnesses and could have
questioned or deposed each of them. The Secretary further notes
that two of the five individuals interviewed by Bowman were
management officials for Consol, i.e. Russell DeBlossio and Van
Wayne Pitman. The Secretary advises that the work notes taken by
DeBlossio, which were included with investigator Bowman=s
memorandum, have been available to Consol from the outset of the
proceedings and the Secretary would, in any event, produce a copy
of those notes upon request.

 Finally, the Secretary notes that two of the remaining three

individuals interviewed by Bowman have been listed as trial
witnesses by the Secretary and that Consol has not taken their
depositions. He notes, moreover, that their initial statements
to the accident investigation team have already been provided to
Consol. In conclusion, the Secretary argues that because Consol
had been able to obtain the substantial equivalent of these
materials through other means the files herein should be
protected under the work product rule and that Consol=s request
for production of these documents should be quashed.

 Consol argues on the other hand that the Bowman memoranda of

interviews should not, in any event, be protected because they
were not prepared Ain anticipation of litigation@ as required by
the work product rule. In Asarco, however, at page 2559 the

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Commission noted that a special investigator does not know at the
outset of his investigation whether charges will be filed in that
particular case but nevertheless the purpose of his investigation
may be deemed to be in anticipation of litigation.

 Consol maintains, in essence, that it has a substantial need

for the memoranda of interviews to compare present recollections
against prior statements and to ascertain whether there are any
contradictions in witness statements. Clearly Consol could not
make such a critical comparison without the subject memoranda.
Accordingly, whether or not the work product privilege applies to
the subject documents, Consol has a substantial need for those
documents and has no other way of obtaining the precise
information. The Secretary is therefore directed to produce
copies of the subject documents to Consol within ten (10) days of
this order.

(2) The internal review files:

 Consol further seeks in its motion to compel discovery Aall

remaining documents prepared, used or reviewed in connection with
the drafting of the >Internal Review of MSHA=s Actions at the
Blacksville No. 1 Mine= report published on August 17, 1993,
which the Secretary has withheld from discovery.@ According to
Consol fifty-five files of documents from the special
investigation remain at issue for in-camera evaluation of the
Secretary=s various claims of privilege. These have been
identified in the Secretary=s AVaughn@ index as File Numbers:
2(b), 4, 5, 8(b), 12(a), 14, 16(b), 20, 21, 24(a), 24(b), 29, 31,
33, 35, 37, 39, 63(a), 66, 67, 69(b), 70(b), 71, 74, 75, 76, 77,
79(b), 81(b), 88, 91(a), 91(b), 96(a), 96(b), 97, 103(b), 103(c),
103(j), 103(k), 103(m), 103(n), 103(o), 103(q), 103(r), 105, 106,
107, 109, and 110.

 The framework for discovery before this Commission is set

forth in Commission Rule 56(b), 29 C.F.R. ' 2700.56(b). That
rule provides that Aparties may obtain discovery of any relevant,
non-privileged matter that is admissible evidence or appears
likely to lead to the discovery of admissible evidence.@
ARelevance@ for purposes of my in-camera examination of these
documents in this discovery setting was framed by Consol in its
first motion to compel discovery and in the following terms:

      The Secretary apparently takes the position that the
 interviews given by its two inspectors to the investigators,
 as well as the interviews given by enforcement personnel in
 District 3, are not in any way relevant to the allegations
 in this matter. It is Consolidation=s position that
 the eye witness observations, impressions and actions
 of the two inspectors are directly relevant to whether
 a reasonable mining person would have recognized the

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 conditions which led to the Blacksville explosion. In
 addition, other interviews documented confusion among
 MSHA district enforcement personnel as to whether the
 ventilation plan and other applicable regulations were
 complied with both prior to and during the capping of
 the production shaft.

      The Secretary=s 104(d) citations and orders in this
 case allege either high negligence or reckless disregard
 of the law by Consolidation. These are very serious
 accusations, and it appears that the Secretary is trying
 to shield his own employees from post-accident scrutiny,
 while Consolidation=s agents are being subjected to the
 very worst sort of Monday morning quarterbacking. The
 requested information is relevant to the ability of
 Consolidation=s employees to recognize hazards at the
 production shaft and MSHA=s own ventilation plan enforcement
 practices that existed at the time of the explosion.@

 As the Secretary noted, however, at the hearing on Consol=s

first motion to compel discovery held February 23, 1996, the
information providing the basis for Consol=s request herein was
available to Consol when the MSHA internal review report was
issued on August 17, 1993. The Secretary further noted at that
hearing that Consol had accordingly waited over two years before
requesting the information now sought. Because of the potential
significance of the information, however, I agreed to further
delay trial in these proceedings to resolve these limited pending
discovery issues. Under the circumstances and to prevent further
undue delay consistent with Commission Rule 56(c), I am strictly
limiting the order of production herein to only materials
relating to the interviews of MSHA enforcement personnel and
specifically to questions regarding compliance with ventilation
plan and other relevant regulations. Accordingly after
examination of the files from his internal investigation
submitted by the Secretary for in-camera review, I conclude that
only those portions of the documents within the Secretary=s File
16(b) noted below will be included in the order for production.

 Document 16(b) is described in the Vaughn index as

AInterview questions and review team notes, including notes on
interviewee answers and on interviewer=s impressions for 24 MSHA
employees.@ It is noted that only the identifying information on
page one of each form questionnaire (questions 1-6) and the
following questions and answers are relevant to the issues
herein: page 3 (questions 2-6), pages 4 and 5, page 11 (questions

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6-8), page 12 (question 6), page 25 and page 26 (questions 1-6).

 In the most recent filing on this issue, on March 29, 1996,

the Secretary has taken the position that these documents are
protected only by the deliberative process privilege and by
Apersonal privacy@. The deliberative process privilege is a

governmental privilege that has been recognized by the
Commission. In Re: Contents of Respirable Dust Sample Alteration
Citations 11 FMSHRC 987 (June 1992), and the Courts, N.L.R.B. v.
Sears, Roebuck & Co., 421 U.S. 132 (1975); E.P.A. v. Mink, 410
U.S. 73 (1973). This privilege protects documents Areflecting
advisory opinions, recommendations and deliberations comprising
part of a process by which governmental decisions and policies
are formulated.@ In Re: Contents of Respirable Dust Sample
Alteration Citations, 11 FMSHRC at 991, citing N.L.R.B. v. Sears,
421 U.S. at 150 (1975).

 While the responses by secretarial personnel to the form

questionnaire do appear to be Apre-decisional@, I do not find
that the specific questions and answers at issue are
Adeliberative@, i.e. they are not related to the process by which
policies are formulated. In addition, the questions and answers
deal primarily with factual information rather than advice,
recommendations or opinions.

 Moreover, to the extent that some of the answers may be

deemed to be Aopinions@, I do not find any to be Adeliberative@ in
the sense that they are related to the process by which a policy
is formulated. Accordingly I do not find them subject to the
deliberative process privilege. In any event, since the noted
questions and answers directly relate to the issues at bar,
including the Areasonably prudent person@ test, unwarrantable
failure and negligence, I conclude that Consol has a substantial
need for that information. I further find that Consol would be
unable without undue hardship (and without further delay in these
proceedings) to obtain the substantial equivalent of the material
by other means.

 The Secretary=s bald assertion of a Apersonal privacy@

privilege is unexplained and without reference to any legal
authority. There is no record evidence moreover that any of the
interviewees are claiming any such personal privilege.
Accordingly no such claim of privilege can be appropriately
evaluated and it is rejected.

                          ORDER

 The Secretary is accordingly directed to produce for Consol

within ten (10) days of the date of this Order (a) copies of the

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five memoranda of interviews within Investigator Bowman=s file,
and (b) the noted questions and answers from each of the
identified form questionnaires associated with the name of each
interviewee from File 16(b) of the Secretary=s internal

review files. The Secretary is further directed to resume
immediate custody of all of the documents submitted for in-camera
review and to segregate those documents for preservation in the
event of Commission or court review. In light of this order the
hearings on the motion to compel discovery previously scheduled
to commence on June 18, 1996, are cancelled. Counsel for the
Secretary is directed to initiate a teleconference with all
parties and the undersigned at 10:00 a.m. on June 27, 1996, to
establish a new trial date for these proceedings.

                     Gary Melick
                     Administrative Law Judge
                     703-756-6261

Distribution:

Robert M. Vukas, Esq., Consol, Inc., 1800 Washington Road,
Pittsburgh, PA 15241 (Certified Mail)

David J. Hardy, Esq., Jackson and Kelly, P.O. Box 553,
Charleston, WV 25322 (Certified Mail)

Robert S. Wilson, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203
(Certified Mail)

/jf

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