Eagle Energy, Inc.

Plain-English summary

Eagle Energy asked for MSHA conference reports, handwritten notes, and a memorandum connected with safety and health conferences involving the company's mines. MSHA objected that the conference reports and notes were protected work product, and that the memorandum was protected by attorney-client privilege. Judge Jerold Feldman held that the conference materials were prepared in anticipation of litigation and that Eagle Energy had not shown the substantial need and undue hardship required to overcome the work-product privilege. He denied the motion to compel and also denied a request for in camera review because Eagle Energy had not identified specific factual material to be separated from the protected documents.

Decision snapshot

• Governing provisions: 29 C.F.R. §§ 2700.56(b) and 2700.56(c); 30 C.F.R. §§ 100.6 and 100.7(b)
• Outcome: Eagle Energy's motion to compel the conference reports, notes, and memorandum was denied.
• Key point: MSHA safety and health conference notes prepared as an initial step in penalty litigation may be protected work product, and general impeachment needs do not overcome that privilege.

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

                                  January 12, 1999

EAGLE ENERGY, INC., : CONTEST PROCEEDING
Contestant :
v. : Docket No. WEVA 98-45-R
: Order No. 7171660; 1/22/98
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Mine No. 1
ADMINISTRATION (MSHA), : Mine ID 46-07711
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH : Docket No. WEVA 98-39
ADMINISTRATION (MSHA), : A.C. No. 46-07711-036660
Petitioner : Docket No. WEVA 98-69
v. : A.C. No. 46-07711-03666
EAGLE ENERGY INCORPORATED, : Mine No. 1
Respondent : Docket No. WEVA 98-81
: A.C. No. 46-07711-03670
: Mine No. 2

            ORDER DENYING EAGLE ENERGY INCORPORATED'S
                  MOTION TO COMPEL DISCOVERY

 Before me for consideration is Eagle Energy Incorporated's (Eagle Energy's)

December 15, 1998, Motion to Compel the Secretary to produce the following:

   1. Copies of the reports of the health and safety conferences conducted by
   representatives of the Mine Safety and Health Administration (MSHA) with Eagle
   Energy company officials on October 7, 1997 (2 pages), December 4 and 10, 1997
   (5 pages), and February 26, 1998 (2 pages);

   2. A copy of hand written notes by MSHA Supervisor Terry Price regarding his
   November 5, 1997, meeting with Eagle Energy company officials (1 page); and

   3. A copy of a memorandum dated April 14, 1998, from MSHA Conference and
   Litigation Representative Ira Lee to the Secretary's counsel, Yoora Kim.

   The Secretary filed an Opposition to Eagle Energy's motion to compel on December 17,

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1998, asserting the health and safety conference reports as well as Price's notes of his
November 5, 1997, meeting are protected by the work product and deliberative process
privileges. The Secretary's opposition also asserted the April 14, 1998, memorandum from Lee
to counsel was protected by the attorney-client privilege. Eagle Energy replied to the Secretary's
opposition on December 31, 1998. In its reply, Eagle Energy conceded the Lee memorandum
was protected by the attorney-client privilege. However, Eagle Energy asserts the health and
safety conference reports and Price's notes are not protected because they were prepared during
the normal course of business.

   The Work Product Privilege

    Commission Procedural Rule 56(b), 29 C.F.R. § 2700.56(b), provides that parties may

obtain discovery of any relevant matter that is not privileged. The work-product privilege has
been codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure.1 In ASARCO, Inc.,

   1
     Commission Procedural Rule 1(b), incorporates the Federal Rules of Civil Procedure, so

far as practicable, on any procedural question not regulated by the Mine Act, the Commission's
Procedural Rules, or the Administrative Procedure Act. Rule 26(b)(3) of the Federal Rules of
Civil Procedure 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
   mental impressions, conclusions, opinions, or legal theories of an attorney or other




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12 FMSHRC 2548 (December 1990), the Commission discussed the work-product privilege,
stating:

   In order to be protected by this immunity under [Rule] 26(b)(3),
   the material sought in discovery must be:

   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."


                   It is not required that the document be prepared by or for an
           attorney. If materials meet the tests set forth above, they are
           subject to discovery "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." If the court orders that the materials be produced because
           the required showing has been made, the court is then required 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."

Id. at 2558 (citations omitted). The burden of satisfying the three-part test is on the party seeking
to invoke the work-product privilege, but once that party has met its burden, the burden shifts to
the party seeking disclosure to make a requisite showing that there is substantial need and undue
hardship to overcome the privilege. P. & B Marina, Ltd. Partnership v. Logrande, 136 F.R.D.
50, 57 (E.D.N.Y. 1991), aff'd, 983 F.2d 1047 (2d Cir. 1992).

    It is clear that the conference notes and the notes prepared by MSHA Supervisor Price are

"tangible documents" prepared "by or for the Secretary." The dispositive question concerning the
applicability of the work product privilege is whether these documents were "prepared in
anticipation of litigation or for trial." Whether these documents are privileged because they were
prepared with litigation in mind must be based on the nature of the documents and the factual
situation in each particular case. ASARCO, 12 FMSHRC at 2558. If the documents can fairly be
said to have been prepared because of the prospect of litigation, then the documents are
covered by the privilege. Id. [citing Wright & Miller, Federal Practice and Procedure § 2024
p.198-99 (1970)] If, on the other hand, litigation is contemplated but the document was prepared
in the ordinary course of business rather than for the purposes of litigation, it is not protected. Id.
In addition, particular litigation must be contemplated at the time the document is prepared in

   representative of a party concerning the litigation.




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order for the document to be protected. Id.

    Eagle Energy argues the subject notes are not protected because they were made in the

ordinary course of business regardless of whether litigation was contemplated. As asserted by
Eagle Energy, the question is whether MSHA reports of a safety and health conference are
routinely prepared in the ordinary course of business without regard to whether litigation is
contemplated. In addressing this question, it is necessary to analyze MSHA's procedures
for health and safety conferences contained in 30 C.F.R. § 100.6. Operators that elect not to
contest citations may decide not to request a safety and health conference. Safety and health
conferences are only conducted, subject to MSHA's approval, upon an operator's request.

30 C.F.R. §§ 100.6(b) and (c). Such conferences are the means by which operators may submit
mitigating information including facts that operators believe warrant a finding that no violation
occurred. 30 C.F.R. § 100.6(e). Citations that are not vacated are referred by the safety and
health conference official to the Office of Assessments with the inspector's evaluation as a basis
for determining the appropriate amount of civil penalty to be assessed. 30 C.F.R. §§ 100.6(f)
and (g).

      Thus, generally, only contested citations are the subjects of safety and health conferences.

Moreover, the MSHA official conducting the conference uses the information submitted by the
operator as a basis for the referral to the Office of Assessments. Upon receipt of a notice of
proposed penalty issued by the Office of Assessments, the operator has 30 days to pay or contest
the proposed penalty. 30 C.F.R. § 100.7(b). In essence, the safety and health conference is the
initial step in the litigation process if the operator contests the proposed civil penalty.
Consequently, such conferences are not routinely conducted, but rather, they are conducted when
an operator challenges the initial citation. Accordingly, the notes of such conferences, including
the notes of Supervisor Price, were prepared in contemplation of litigation and, as such, are
protected by the work product privilege. Likewise, any notes prepared by an operator's
representatives during such conferences are also protected.

   Having concluded that the conference reports and notes are protected, the analysis shifts

to whether Eagle Energy can overcome the privilege by demonstrating a substantial need for the
information, and establishing that it will suffer an undue hardship if it must attempt to obtain the
information by other means. It is difficult for Eagle Energy to make such a showing for
summaries of meetings with MSHA conference officials and Price that were attended by its own
company representatives. General assertions, as advanced by Eagle Energy, that the protected
material is needed to compare present recollections against prior statements, or for general
purposes of impeachment, are not sufficient to overcome the work product privilege.
Consolidation Coal Company, 19 FMSHRC 1239, 1243-44 (July 1997). Consequently, Eagle
Energy has failed to overcome the privilege, and its motion to compel the safety and health

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conference reports and Supervisor Price's notes shall be denied.2
In the alternative, if Eagle Energy does not prevail in its motion to compel, it requests
in camera review of the subject conference reports and Price's notes to determine if they contain
"purely factual materials" which are not protected. It is inappropriate to request the trier of fact
to review, in camera, protected work product documents containing trial strategy, opinions or
other confidential information solely on the basis of mere speculation that some severable,
purely factual material may exist. Rather, the proponent of the in camera review must provide
sufficient detail identifying the nature and substance of the factual material sought to be
discovered.

   Commission Rule 56(c) permits the Judge, upon his own motion to limit discovery to

prevent undue burden or delay. 29 C.F.R. § 2700.56(c). The discretion to order in camera
review should be used judiciously. The in camera review process must not be used like a fishing
expedition. Accordingly, absent a threshold showing identifying the nature of the information
sought to be discovered, Eagle Energy's request for in camera review is denied.

   Attorney-Client Privilege


   2
      Having determined the conference reports and Price's notes are protected by the work

product privilege, I need not address the Secretary's assertion that they are also protected by the
deliberative process privilege. However, I note that deliberative process in contemplation of
hearing is protected under the work product doctrine. See fn. 1 infra. The distinction between
these two privileges would be blurred if all deliberations in anticipation of hearing were also
covered by the deliberative process privilege. Rather, the Commission has defined the deliberative
process privilege as one which "attaches to inter- and intra-agency communications that are part
of the deliberative process preceding the adoption and promulgation of an agency policy." In re:
Contests of Respirable Dust Sample Alteration Citations, 14 FMSHRC 987, 992 (June 1992)
[quoting Jordan v. United States Dep't of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978)]. It has
neither been alleged nor shown that the conference or Price meeting concerned the formulation of
agency policy.

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    Eagle Energy, in its reply to the Secretary's opposition to its motion to compel, concedes

the April 14, 1998, memorandum from MSHA Conference and Litigation Representative Ira Lee
to the Secretary's counsel, Yoora Kim, is protected by the attorney-client privilege. (Reply,
pp. 16-17). Therefore, I construe Eagle Energy to have withdrawn its motion to compel the Lee
memorandum.

   In view of the above Eagle Energy's Motion to Compel IS DENIED.




                                           Jerold Feldman
                                           Administrative Law Judge

Distribution:

Julia K. Shreve, Esq., Jackson & Kelly, 1600 Laidley Tower, P.O. Box 553, Charleston,
WV 25322 (Certified Mail)

Yoora Kim, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd.,
Arlington, VA 22203 (Certified Mail)

/mh

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