Chicopee Coal Company, Inc.

Plain-English summary

Chicopee Coal Company was defending two miner discrimination proceedings involving Lewis Frank Bates and Earl Charles Albu. The judge denied the Secretary's request to reconsider an order requiring disclosure of the complainants' signed statements and denied certification for interlocutory Commission review. The judge held that statements by parties were not protected work product merely because an MSHA inspector transcribed them, and that the respondent had a compelling need to examine them. The judge granted a limited stay by extending the disclosure deadline to October 25, 1999, while directing the scheduled November 2 hearing to proceed.

Decision snapshot

• Cited standard(s): 30 U.S.C. § 815(c), and 29 C.F.R. §§ 2700.61, 2700.62, and 2700.76
• Outcome: Reconsideration and interlocutory-review certification were denied, while the disclosure deadline was extended and the hearing remained scheduled.
• Key point: Party statements underlying an MSHA discrimination proceeding were not protected from discovery by the work-product privilege on this record.

Full text (FMSHRC public release)

[DOCID: f:wv99121.wais]

CHICOPEE COAL COMPANY, INC.
October 19, 1999
WEVA 99-121-D

    FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

           OFFICE OF ADMINISTRATIVE LAW JUDGES
                  2 SKYLINE, 10th FLOOR
                   5203 LEESBURG PIKE
              FALLS CHURCH, VIRGINIA  22041


                    October 19, 1999

SECRETARY OF LABOR, MSHA : DISCRIMINATION PROCEEDING
on behalf of LEWIS FRANK BATES, :
Complainant : Docket No. WEVA 99-121-D
v. :
: HOPE CD 99-12
:
CHICOPEE COAL COMPANY, INC., : Lilly Branch Surface Mine
Respondent : Mine ID 46-08723
:
SECRETARY OF LABOR, MSHA : DISCRIMINATION PROCEEDING
on behalf of EARL CHARLES ALBU, :
Complainant : Docket No. WEVA 99-122-D
v. :
: HOPE CD 99-12
:
CHICOPEE COAL COMPANY, INC., : Lilly Branch Surface Mine
Respondent : Mine ID 46-08723

ORDER DENYING THE SECRETARY'S MOTION FOR RECONSIDERATION
 ORDER DENYING THE SECRETARY'S MOTION FOR CERTIFICATION
                FOR INTERLOCUTORY REVIEW
                           AND
 ORDER GRANTING IN PART THE SECRETARY'S MOTION FOR STAY

 These  discrimination  proceedings are scheduled for hearing

on November 2, 1999, in Charleston, West Virginia. On October
15, 1999, I issued an Order granting the respondent's motion to
compel the disclosure of all signed statements secured from Lewis
Frank Bates and Earl Charles Albu during the course of MSHA's
investigation in these discrimination matters.
The October 15, 1999, Order required the Secretary to disclose
such signed statements, by facsimile and regular mail, on or
before the close of business on Wednesday, October 20, 1999.

 In a motion  filed  on October 19, 1999, the Secretary seeks

reconsideration of the October 15, 1999, Order, and,
alternatively,
requests certification to the Commission of whether signed state-
ments provided to MSHA by parties in discrimination matters are
protected from discovery by the work-product privilege. If the
Secretary's request for certification is denied, the Secretary
seeks to stay the October 15, 1999, Order so that she may seek
certification directly from the Commission.

 In seeking reconsideration, the Secretary once again asserts

the signed statements are protected work products because they
were prepared by an agent of the Secretary in contemplation of
litigation. As noted in the October 15, 1999, Order, a document
purporting to be a party's signed statement is not entitled to
the work-product privilege simply because an MSHA inspector,
rather than the party, transcribed what the party said. Put
another way, the work-product privilege applies to the thought
processes and opinions of the Secretary's personnel and counsel,
neither of which apply to statements by parties.

 Moreover, as noted in the October 15, 1999, Order,  even  if

such signed statements by discrimination complainants were
protected under the work product privilege, a respondent in a
discrimination proceeding has a compelling need to examine such
statements because they are unique in that they provide the basis
for the Secretary's initiation of a 105(c)(2) discrimination
proceeding. In seeking reconsideration, the Secretary's relies
on established case law holdings that general assertions of the
impeachment value of documents protected by the work-product
privilege are inadequate to overcome the privilege. The
Secretary's reliance on such cases is misplaced. Here, the
respondent's request is specific - - it seeks to examine the
statements by the parties that motivated the Secretary's
enforcement action.[1]

 Finally, in her reconsideration request, the Secretary  does

not properly distinguish statements provided to MSHA by parties
to a discrimination proceeding from statements obtained from
individuals in general during the course of a section 105(c) or
section 110(c) investigation. Non-party statements may be
protected by the informant's privilege and/or the miner's
privilege pursuant to Commission Rules 61 and 62, 30 C.F.R. 29 ��
2700.61 and 2700.62. However, even non-party signed statements
are not protected by the work-product privilege just because they
were obtained by MSHA personnel. Accordingly, the Secretary's
request for reconsideration of the October 15, 1999, Order
compelling disclosure shall be denied.

 Turning   to   the   Secretary's  alternative  requests,  an

interlocutory discovery ruling is certifiable for Commission
review under Rule 76 if it involves a controlling question of law
that will materially advance the final disposition of this
matter. 29 C.F.R. � 2700.76. I am not persuaded that compelling
disclosure of the complainants' allegations, absent any claim
that any portion of those allegations would violate another
privilege, such as identifying a confidential informant, involves
a controlling question of law. Moreover, it is a central goal of
the Mine Act to expeditiously resolve discrimination matters.
See Commission Order in Sec. o/b/o Lonnie Bowling et al v.
Mountain Top Trucking, et al, 21 FMSHRC , slip op. at p.2
(September 24, 1999). Accordingly, I am not inclined to delay
these proceedings.

 Although,  I  have  denied  the  Secretary's   request   for

certification of the October 15, 1999, ruling on discovery, I
will grant the Secretary's request for a delay of the October 20,
1999, deadline for providing the complainants' signed statements
to enable the Secretary to seek certification directly from the
Commission. Consequently, the date for providing the respondent
with the complainant's signed statements is extended until the
close of business on Monday, October 25, 1999.

                          ORDER

 In   view  of  the  above,  the  Secretary's  requests   for

reconsideration, and, alternatively, for certification for
review, of the October 15, 1999, Order compelling disclosure, ARE
DENIED. Consistent with the above, IT IS ORDERED that the
Secretary provide the respondent, on or before the close of
business on Monday, October 25, 1999, by facsimile and regular
mail, all signed statements secured from Lewis Frank Bates and
Earl Charles Albu during the course of MSHA's investigation in
these discrimination matters. IT IS FURTHER ORDERED THAT
the scheduled hearing of these matters on November 2, 1999, shall
proceed.

                            Jerold Feldman
                            Administrative Law Judge

Distribution:

Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Suite 516, Arlington, VA 22203
(Facsimile and Certified Mail)

Forrest H. Roles, Esq., Mark E. Heath, Esq., Heenan, Althen &
Roles, P.O. Box 2549, Charleston, WV 25329 (Facsimile and Certi-
fied Mail)

/mh

FOOTNOTES

 [1]:  As discussed in the October  15,  1999, Order, if

there
is any material in the parties' signed statements that should be
redacted on the basis of another privilege, the Secretary should
seek to protect such material from disclosure.