Eagle Energy, Inc.

Plain-English summary

Eagle Energy asked for an MSHA conference report and interview memoranda in three consolidated proceedings, while the Secretary argued that the materials were protected by the work-product and informant privileges. Judge Jerold Feldman found that the discovery motion was untimely and that Eagle Energy had not shown good cause to extend the discovery period. The judge also held that the materials were prepared in anticipation of litigation and that Eagle Energy had not shown substantial need or undue hardship to overcome the privilege. The Secretary separately sought a subpoena for an expert witness’s military discharge papers, but the judge found the proposed evidence collateral and denied that request. Both requests were denied.

Decision snapshot

• Governing rules and standards: 29 C.F.R. §§ 2700.56(d) and (e), and 30 C.F.R. §§ 100.6 and 100.7(b)
• Outcome: Eagle Energy’s motion to compel discovery and the Secretary’s subpoena request were both denied.
• Key point: A party seeking privileged discovery after the deadline must show good cause, substantial need, and undue hardship, and cannot obtain the material merely by asking for factual portions.

Full text (FMSHRC public release)

October 28, 1999

EAGLE ENERGY, INC., : CONTEST PROCEEDINGS
Contestant :
v. : Docket No. WEVA 98-72-R
: Citation No. 7166391; 3/11/98
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. WEVA 98-73-R
ADMINISTRATION (MSHA), : Citation No. 7166392; 3/11/98
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 98-123
Petitioner : A.C. No. 46-07711-03674
v. :
: Mine No. 1
EAGLE ENERGY INCORPORATED, :
Respondent :

           ORDER DENYING THE RESPONDENT’S MOTION
                    TO COMPEL DISCOVERY
                            AND
     ORDER DENYING THE SECRETARY’S REQUEST FOR SUBPOENA

   The initial phase of the hearing in these matters was conducted from September 14

through September 17, 1999. The hearing is scheduled to reconvene on December 7, 1999.
Before me for consideration is the respondent’s motion to compel discovery of the Mine Safety
and Health Administration Health (MSHA) and Safety Report concerning an April 21, 1998,
meeting. The attendees on behalf of MSHA were James Bowman, Conference and Litigation
Specialist, MSHA Inspector Thurman Workman and MSHA Supervisory Inspector Terry Price.
The respondent was represented by then-counsel Donna Kelly. Also in attendance was
Jeff Bennett, the respondent’s Safety Director, Glen Conner, the respondent’s President and
Larry Ward, the respondent’s General Manager. The respondent also seeks to discover any
statements taken from individuals that will not be called by the Secretary in these proceedings.

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   Pursuant to my request, the Secretary has provided the relevant documents for my

in camera review. The subject documents consist of an April 21, 1998, conference report and
memoranda of MSHA interviews conducted between August and November 1998 with
individuals who are employees of the respondent.

    A conference call concerning the respondent’s motion to compel and the Secretary’s

opposition was conducted on October 27, 1999. The Secretary asserts the respondent’s motion
should be denied because it is untimely. In the alternative, the Secretary contends the documents
sought by the respondent are protected by the work-product privilege and the informant’s
privilege. If it is determined that the subject documents are protected, the respondent seeks
disclosure of portions of these protected documents that contain factual material.

   The Motion to Compel

    As a threshold matter, Commission Rules 56 (d) and (e) provide that discovery shall be

initiated within 20 days after an answer to a petition for assessment of civil penalty, and that
discovery shall be completed within 40 days of its initiation. 29 C.F.R. § 2700.56(d) and (e).
These rules authorize a judge to permit discovery after this date for good cause shown.

    The respondent previously has sought to discover the April 21, 1998, conference report

during the discovery period prior to the start of the September 14, 1999, hearing. The Secretary
declined to provide the report at that time claiming it was protected by the deliberative process
and work-product privileges. The respondent declined to file a motion to compel discovery of
the conference report at that time. The respondent has failed to show the requisite good cause to
support its untimely motion. Accordingly, the respondent’s motion to compel the April 21, 1998,
conference report shall be denied as untimely.

    Similarly, the respondent has failed to show good cause for its untimely request for

disclosure of statements the Secretary may have obtained from individuals who will not be called
by the Secretary as witnesses. The respondent previously requested the Secretary to disclose all
relevant statements obtained by MSHA in these matters during the discovery period prior to the
beginning of the trial. The Secretary declined to provide such statements citing the informant’s
privilege. The respondent failed to seek disclosure by filing a motion to compel. The respondent
now predicates its motion on the theory that statements taken by the Secretary by individuals not
called as the Secretary’s witnesses must contain information harmful to the Secretary’s case.
Such an assertion does not provide good cause for extending the discovery period. Accordingly,
the respondent’s motion to compel such statements shall also be denied as untimely.

    Assuming the respondent’s motion to compel was not untimely, the respondent’s motion

will be addressed on the merits because arguments advanced by the respondent in support of its
motion during the October 27, 1999, conference call raise important issues.

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   The Secretary claims the subject documents are protected by the work-product privilege.

The work-product privilege has been codified in Rule 26(b)(3) of the Federal Rules of Civil
Procedure. In ASARCO, Inc.,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. It is clear that the conference report and memoranda of interviews conducted
by MSHA between August and November 1998 sought to be protected under the work product
privilege are “tangible documents” prepared “by or for the Secretary.”

     The determinative 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 order for the document to be
protected. Id.

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    In addressing whether MSHA reports of a safety and health conference are prepared in

contemplation of litigation, 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. Such
conferences are not routinely conducted, but rather, they are conducted when an operator
challenges the initial citation. Accordingly, MSHA’s internal reports of such conferences are
prepared in contemplation of litigation and, as such, are protected by the work-product privilege.

    Turning to the memoranda of interviews, these interviews were conducted between

August and November 1998, after the respondent had contested the citations in issue. They
contain MSHA’s recollections and analysis of information provided by the interviewees,
and, such memoranda were clearly prepared in contemplation of litigation. As such, these
memoranda are protected by the work-product privilege. Having concluded they are protected
by the work-product privilege, I note parenthetically, that the content of such interviews are also
protected by the informant’s privilege as asserted by the Secretary.

     I am concerned by the respondent’s argument that, assuming that documents are protected

by privilege, factual material within protected documents are not covered by the privilege and
must be disclosed. The respondent misses the point. Once the Secretary has satisfied her burden
that the subject documents are protected by privilege, the burden shifts to the respondent to
overcome the privilege by demonstrating a substantial need for the documents, and that
failing to obtain the documents will result in undue hardship. 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). Thus,
it is only after making such a showing to defeat the privilege that a party is entitled to see
portions of protected documents with redactions 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, 12 FMSHRC at 2558 (citations omitted).

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   The respondent has failed to make any showing of need or hardship. Significantly, the

respondent’s counsel, as well as other company officials, attended the April 21, 1998, MSHA
conference meeting. The notion that hardship will ensue unless the respondent obtains MSHA’s
notes of a meeting that the respondent’s counsel and company officials attended is difficult to
understand and must be rejected.

   Similarly, the subject memoranda of interviews concern information provided to

MSHA by the respondent’s employees. The respondent could have informally interviewed its
employees, or it could have deposed them under subpoena during discovery. Thus, the
respondent has failed to demonstrate the substantial need required to overcome the privilege.

    Having failed to satisfy its burden of overcoming the Secretary’s privilege, the respondent

is not entitled to see redacted portions of privileged documents. Accordingly, notwithstanding
the untimeliness of the respondent’s motion, the respondent’s motion to compel discovery is also
denied on the merits.

   Collateral Issues

    Finally, during the October 27, 1999, conference call, the Secretary requested that I issue

a subpoena so that the Secretary could obtain the military discharge papers of an individual who
the respondent intends to call as an expert witness. The Secretary seeks the subpoena to
determine whether the deposition testimony of this individual, with respect to his military
discharge in the 1970's, impacts on his credibility as an expert witness in these proceedings.

    Assuming for the sake of argument that this individual’s deposition testimony under oath

was not candid, with rare exceptions not applicable here, untruthful acts that have not resulted in
a conviction are deemed to be collateral in nature. Extrinsic evidence of such acts are not
admissible. See John W. Strong et al., McCormick On Evidence, § 49, at 202 (5th ed. 1999);
see also Fed R. Evid. 608(b). Consequently, the Secretary’s subpoena request will be denied.

                                         ORDER

  In view of the above, the respondent’s motion to compel discovery IS DENIED.

The Secretary’s request for subpoena IS ALSO DENIED.

                                          Jerold Feldman
                                          Administrative Law Judge



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Distribution:

Howard Berliner, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Room 516, Arlington, VA 22203 (Certified Mail)

David Hardy, Esq., Julia Shreve, Esq., Jackson & Kelly, P.O. Box 553, Charleston,
WV 25322 (Certified Mail)

/mh

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