Performance Coal Company

Plain-English summary

Performance Coal and Mark Allaman sought documents from MSHA in consolidated contest and civil penalty proceedings. Judge Jerold Feldman ordered MSHA to provide a witness statement and a base penalty calculation, but protected an investigator's memorandum, a safety and health conference report, a proposed assessment worksheet, and other privileged investigative materials. The order required production of the two documents within ten days and denied the request for the remaining materials.

Decision snapshot

• Governing authorities: 29 C.F.R. § 2700.1(b); 30 C.F.R. §§ 100.6 and 100.7(b)
• Outcome: The motion to compel was granted in part and denied in part.
• Key point: A witness's signed statement and factual penalty calculation were ordered produced, while work-product and deliberative materials remained protected.

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
November 9, 2000

PERFORMANCE COAL COMPANY, : CONTEST PROCEEDING
Contestant :
v. : Docket No. WEVA 99-40-R
: Citation No. 4204336; 12/17/98
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Upper Big Branch Mine - South
ADMINISTRATION (MSHA), :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 99-93
Petitioner : A.C. No. 46-08436-03564
v. :
: Upper Big Branch Mine-South
PERFORMANCE COAL COMPANY, :
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 2000-28
Petitioner : A.C. No. 46-08436-0350 A
v. :
: Upper Big Branch Mine-South
MARK ALLAMAN, Employed by, :
PERFORMANCE COAL COMPANY, :
Respondent :

              ORDER GRANTING IN PART MOTION TO COMPEL

    These consolidated contest and civil penalty proceedings are scheduled for hearing on

December 19, 2000, in Charleston, West Virginia. Before me for consideration are the
respondents’ motion to compel the disclosure of documents and the Secretary’s opposition
to the respondents’ motion. Specifically, the respondents seek any statements provided to the
Mine Safety and Health Administration (MSHA) by Johnny Williams and Rick Lilly; all
documents concerning how and why the subject citation was specially assessed and the
calculations related thereto; and all documents in MSHA’s investigative file, with the exception of
MSHA’s investigative recommendations and any information directly covered by the informant or
miner witness privilege.

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   Consistent with my request during the course of an October 18, 2000, telephone

conference with the parties, on November 7, 2000, the Secretary furnished the following
documents for in camera review:

   (1) A signed statement of Johnny R. Williams obtained by MSHA on March 30,
   1999.

   (2) A March 31, 1999, memorandum of interview with Randell L. Lilly prepared
   by MSHA Special Investigator James G. Jones.

   (3) A report of an MSHA Health and Safety Conference attended by Performance
   Coal Company representatives on January 20, 1999.

   (4) An MSHA Proposed Assessment Worksheet.

   (5) A Base Penalty Calculation for Special Assessment dated February 2, 1999.

   A. The signed statement of Johnny R. Williams

    The Secretary argues that the Williams statement is protected by the work product

privilege. The respondents asserts the work product privilege is inapplicable because, despite the
fact that the statement was obtained after the January 19, 1999, filing of Performance Coal
Company’s contest in Docket No. WEVA 99-40-R, it was obtained prior to the initiation of the
captioned 110(c) proceeding in Docket No. WEVA 2000-28.

    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


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   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. Here, the Williams statement is a tangible document obtained by the
Secretary in anticipation of litigation because it was obtained after the contest filed by
Performance Coal Company. However, the signed statement was not “prepared” by the
Secretary. The signed statement is entitled to the same protection from disclosure that a treatise
obtained from the library by Secretary’s counsel would be entitled to - - none. The Secretary
cannot prevent disclosure of Williams’ signed statement by asserting it is really the investigator’s
work product because it is only Williams’ acknowledgment of the accuracy of what the MSHA
investigator heard the Williams say. Since the signed statement constitutes a document
“prepared” by Williams rather than the Secretary, the work product privilege does not apply.
Consequently, the respondents’ motion to compel the signed Williams’ statement shall be granted.

    I note parenthetically, even if Williams’ signed statement was protected under the

work product privilege, the analysis would shift to whether the respondents have a substantial
need for the statement, 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). While assertions that protected material is
needed for general purposes of impeachment may not be sufficient to overcome the work product
privilege, here the statement provided by Williams, the victim of a November 24, 1998, roof fall
accident, is unique in that the statement evidences Williams’ recollections less than six months
after the accident. Consolidation Coal Company, 19 FMSHRC 1239, 1243-44 (July 1997).
Depriving the respondents’ counsel of access to recollections recorded relatively soon after the
accident would result in a significant hardship. Thus, even if the Williams statement was
protected, the respondents have a compelling need to examine the contents of Williams’ statement
in preparation for trial.

     Finally, Williams will be called by the Secretary as a witness in these proceedings. Even if

a witness’s signed statement is protected by privilege, such statements are routinely disclosed at
trial in a criminal proceeding. 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,

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15 FMSHRC 2228, 2237 (November 1993), referring to 29 C.F.R. § 102.118(b)-(d) (NLRB
“Jencks” procedure). Thus, the privilege issue notwithstanding, the Secretary would be
compelled to produce Williams’ statement at trial.

   B. MSHA investigator Jones’ March 31, 1999, memorandum
      of Lilly interview

    With respect to the work product question, the Secretary’s memorandum containing

Jones’ recollections of his March 31, 1999, interview with Randell L. Lilly is in stark contrast to
the Williams statement. Unlike the Williams statement, the Jones memorandum was indeed
prepared on behalf of the Secretary in contemplation of litigation. It contains the recollections of
Jones concerning what Jones was told by Lilly. Accordingly, the Jones memorandum is protected
by the work product privilege.

   C. The January 20, 1999, MSHA Health and Safety Conference Report

     The Secretary seeks protection of the January 20, 1999, MSHA Health and Safety

Conference Report on the basis of the work product and deliberative process privileges. The
conference was attended by officials of Performance Coal Company. The dispositive question
concerning the applicability of the work product privilege is whether the document was “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.

    The question is whether MSHA reports of a safety and health conferences 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).

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      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 reports of such conferences are
protected by the work product privilege.

     Having concluded that health and safety conference reports are protected, the analysis

shifts to whether the respondents 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 the respondents to make such a showing
since officials of Performance Coal Company attended the safety conference. Consequently, the
respondents have failed to overcome the work product privilege. Thus, the motion to compel the
safety and health conference report shall be denied. Having determined the health and safety
conference report is protected by the work product privilege, I need not address the Secretary’s
assertion that it is also protected by the deliberative process privilege.

   D. The MSHA Proposed Assessment Worksheet

    The Secretary contends the Proposed Assessment Worksheet is protected by the

deliberative process privilege. 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)]. The Proposed
Assessment Worksheet contains mental impressions and opinions concerning the degree of gravity
associated with the subject violation as well as the degree of culpability attributable to the
respondents. It contains recommendations concerning the appropriate civil penalties that should
be proposed. Consequently, the Proposed Assessment Worksheet is protected by the deliberative
process privilege.

   E. Base Penalty Calculation for Special Assessment

    The Base Penalty Calculation for Special Assessment is a computer generated form that

contains the special assessment penalty criteria relied upon by the Secretary as well as a history of
previous similar violations. This form contains data without any opinion or impressions of MSHA
personnel. It is apparently generated in the normal course of business to determine the
appropriate penalty to be assessed regardless of whether the citation is contested. As such, this
form is not protected by the deliberative process or work product privileges. Consequently, the
respondents’ motion to compel the Base Penalty Calculation for Special Assessment form shall be
granted.

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   Finally, the respondents’ motion to compel all documents in MSHA’s investigative file not

otherwise protected by privilege shall be denied because it is overly broad.

                                       ORDER

   Consistent with the above discussion, IT IS ORDERED that the respondents’

motion to compel with respect to the March 30, 1999, statement of Johnny R. Williams and the
Base Penalty Calculation for Special Assessment dated February 2, 1999, IS GRANTED.

    IT IS FURTHER ORDERED that the Secretary provide the respondents with copies of

the Williams statement and the Base Penalty Calculation for Special Assessment within ten days
of the date of this Order.

    IT IS FURTHER ORDERED that the respondents’ motion to compel the

March 31, 1999, Jones memorandum of Lilly interview, the January 20, 1999, Health and
Safety Conference Report, the MSHA Proposed Assessment Worksheet, and all MSHA
investigative documents not otherwise protected by privilege IS DENIED.

                                        Jerold Feldman
                                        Administrative Law Judge

Distribution:

Mark Heath, Esq., Heenan, Althen & Roles, One Valley Square, Suite 1380,
P.O. Box 2549, Charleston, WV 25329 (Certified Mail)

Emily Goldberg-Kraft, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 516,
Ballston Towers #3, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)

/mh

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