Chicopee Coal Company, Inc.

Plain-English summary

Chicopee Coal Company sought signed statements that two miners had provided to MSHA during discrimination investigations. The judge granted the company's motion to compel, holding that a party's signed statement was not protected work product merely because an MSHA investigator prepared or transcribed it. The judge also found that the company had a compelling need to examine the statements because they formed the basis for the Secretary's discrimination proceedings and could not reliably be replaced by depositions. The Secretary was ordered to provide the statements by October 20, 1999, subject to any separate privilege claim requiring redaction.

Decision snapshot

• Cited standard(s): 30 U.S.C. § 815(c), and 29 C.F.R. §§ 2700.61 and 2700.62
• Outcome: The respondent's motion to compel was granted, and the Secretary was ordered to disclose the signed statements.
• Key point: A party's signed statement is not protected work product simply because an MSHA investigator obtained or transcribed it.

Full text (FMSHRC public release)

[DOCID: f:99121wv.wais]

CHICOPEE COAL COMPANY, INC.
October 15, 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 15, 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 GRANTING RESPONDENT'S MOTION TO COMPEL

 These  discrimination  proceedings are scheduled for

hearing on November 2, 1999, in Charleston, West Virginia.
Before me for consideration are the respondent's motion to
compel, conveyed during the course of a telephone conference
with the parties, and the Secretary's written opposition
to the respondent's motion. The respondent seeks to discover
any written statements prepared by Mine Safety and Health
Administration (MSHA) investigators that were signed by
the complainants in these discrimination proceedings.

 The Secretary opposes discovery of such statements

asserting that the statements are protected by the work
product privilege.[1] Specifically, the Secretary seeks to
protect from disclosure "summaries of the [complainants']
statements written by [MSHA special investigator] Meadows
and then signed by the [complainants] as being accurate."
Sec.'s opposition to motion to compel, p.2 (footnote omitted).

 The Work Product Privilege

 As a threshold matter, I do not believe that the work

product privilege applies to a statement obtained by an MSHA
investigator that has been signed by a party. The Secretary
cannot prevent disclosure by asserting the signed statement
is really the investigator's work product because it is only
the party's acknowledgment of the accuracy of what the
investigator heard the party say. A party's signed statement
is what it is. Consequently, the respondent's motion to
compel shall be granted because a party's signed statement is
not protected by the work-product privilege.

 However,  assuming for the sake of argument that  the

work-product privilege applies, this 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 toprotect
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. Assuming
the signed statements are protected under the work-product
privilege `as tangible documents prepared by or for the
Secretary in anticipation of litigation,' the analysis shifts
to whether the respondent has a substantial need for the
complainant's statements, and whether depriving the respondent
of these documents would constitute an 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).

 I am not convinced by the Secretary's suggestion that

the respondent can obtain the equivalent information through
other sources, such as deposing the complainants. The signed
statements provided to the MSHA investigator by the
complainants are unique in that the specific content of
those statements serves as the basis for the Secretary's
initiation of the subject 105(c)(2) discrimination proceedings.
There is no assurance that the complainants' deposition
testimony will be consistent with the earlier statements
they provided to MSHA. In short, the respondents have a
compelling need to examine the accuracy and truthfulness of
these statements in preparation for trial.

 Significantly, even if a witness's signed statement is

protected under another privilege, such as the informant's
privilege, in a criminal proceeding, such statements are
routinely disclosed at trial. See Jencks v. United States,
353 U.S. 657. 667-69 (1957); 18 U.S.C. � 3500 (Jencks Act).
In this regard, the Commission has noted, in National
Labor Relations Board (NLRB) administrative proceedings, the
NLRB itself provides at trial, for cross examination
purposes, a witness's prior statements relative to the
subject matter of his testimony. See Secretary of Labor
o/b/o Donald L. Gregory, et al v. Thunder Basin Coal
Company,15 FMSHRC 2228, 237 (November 1993), referring
to 29 C.F.R. � 102.118(b)-(d) (NLRB "Jencks" procedure).

 It is unfortunate that the government would seek to

withhold from disclosure the signed allegations that serve
as the basis for these proceedings. If there is any material
in the signed statements that should be redacted on the
basis of another privilege not yet asserted by the Secretary,
the Secretary should seek to protect such material from
disclosure.

                          ORDER

 In view of the above, IT IS ORDERED that the Secretary

provide to the respondent, on or before the close of business
on Wednesday, October 20, 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.

                          Jerold Feldman
                          Administrative Law Judge

FOOTNOTES

 [1] During the conference call, the Secretary also cited

the informant's privilege as a basis for withholding
disclosure. However, as the complainants' identity is known
to the respondents, the Secretary no longer asserts the
informant's privilege.

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 Certified Mail)

/mh