Secretary of Labor v. Kirk Fenoff & Son Excavating

Plain-English summary

Kirk Fenoff & Son initially served 64 interrogatories in a case involving two related highwall orders, then reduced the request to 39 after court-directed discussions. The Secretary sought a 25-question limit. Judge William B. Moran held that Commission procedural rules govern the scope of discovery but do not specify how many interrogatories a party may serve, so Federal Rule of Civil Procedure 33 supplies practical guidance. He adopted a presumptive limit of 25, required Fenoff to identify which 25 it wanted answered, and placed the burden on any party seeking more to justify each additional question before the court.

Decision snapshot

• Underlying standards: 30 C.F.R. §§ 56.3200 and 56.3401
• Outcome: Fenoff was limited to 25 interrogatories unless it obtained advance permission based on particularized need for additional questions.
• Key point: Commission discovery rules permit broad relevant discovery, but silence on quantity allows judges to use the federal 25-interrogatory limit to prevent potentially excessive written discovery.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE: 202-434-9933
/ FAX: 202-434-9949

December
19, 2014

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

KIRK
FENOFF & SON EXCAVATING,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. YORK 2014-28M

A.C.
No. 43-00490-335673

Forest
& Stream Gravel

ORDER

Before:           
Judge Moran

The
Secretary has filed a motion to limit the Respondent’s utilization of the
discovery vehicle of written interrogatories to 25 (twenty-five) such inquiries
(“Motion”). Initially, the Respondent filed 64 interrogatories and, with the
Court’s urging to see if the dispute could be resolved, that number was reduced
to 39. The Secretary, believing the reduced number continuing to be excessive,
filed the present motion. For the reasons which follow, the Court concludes
that, consistent with the longstanding limit of 25 interrogatories under the
Federal Rules of Civil Procedure, a party is presumptively limited to 25
questions in Mine Act litigation. Any party seeking more than the presumptive
limit may be permitted to ask additional questions, but only after first
applying to the Court for such relief and presenting the reasons justifying the
request. After the opposing party has had an opportunity to respond, the Court
will issue a ruling as to each requested additional question. This Order is being
issued, in part, because Commission case law on this subject is sparse.

Background

Initially, it
must be said that facts surrounding this matter do not appear to be
exceptionally complex. Involving two section 104(d) orders, the first, citing 30
C.F.R. § 56.3200, asserts finding that “[t]he south east pit face was found to
be undermined. The pit was evaluated to have a 30 foot wide X 15 foot high area
undermined 2 ½ foot under the face. A vertical area above the affected area was
evaluated to be 30 foot high to the catch bench. Multiple loader tracks and dig
marks at the face toe and wall were observed. This condition creates a fall of
material hazard. Kirk Fenoff, Owner engaged in aggravated conduct by knowing
that miners had been loading from the pit high wall for periodically a two
month period time. Mr. Fenoff has not gone to the pit in two months to examine
the high wall for unsafe conditions.” Order No. 8717168. The cited standard
provides that “Ground conditions that create a hazard to persons shall be taken
down or supported before other work or travel is permitted in the affected
area. Until corrective work is completed, the area shall be posted with a
warning against entry and, when left unattended, a barrier shall be installed
to impede unauthorized entry.”

With
the second Order, No. 8717169, arising out of the same facts, it repeated the
narrative of the first Order, but cited 30 C.F.R. § 56.3401, which provides
that “Persons experienced in examining and testing for loose ground shall be
designated by the mine operator. Appropriate supervisors or other designated
persons shall examine and, where applicable, test ground conditions in areas
where work is to be performed prior to work commencing, after blasting, and as
ground conditions warrant during the work shift. Highwalls and banks adjoining
travelways shall be examined weekly or more often if changing ground conditions
warrant.”  

The
Discovery Dispute

Per
the Court’s request following the parties’ inability to resolve the dispute
over the permitted number of interrogatories, the Secretary filed the instant Motion
to Limit Respondent’s Discovery Pursuant to F.R.C.P. 33. That provision from
the Federal Rules states:

Unless otherwise
stipulated or ordered by the court, a party may

serve on any other party no more than 25
written interrogatories,

including all discrete subparts. Leave
to serve additional interrogatories may be granted to the extent consistent
with Rule 26(b)(2).

Rule
33(a)(1) Interrogatories to Parties

As
noted, Respondent initially presented 64 interrogatories. Beyond that, the
Secretary represents that the Respondent intends to depose the Inspector who
issued the Orders. Motion at 2.

The Secretary acknowledges that
interrogatories and other forms of discovery are permitted under the
Commission’s Procedural Rules, 29 C.F.R. Part 2700. (“Rules”).   However, those
Rules, while recognizing the right to obtain discovery of any relevant,
non-privileged matter that is admissible evidence or appears likely to lead to
the discovery of admissible evidence, also temper that right by providing that,
upon motion, a party or a person from whom discovery is sought may seek to have
the judge, for good cause shown, limit discovery to prevent undue delay or to
protect a party or person from oppression or undue burden or expense. 29 C.F.R.
§ 2700.56(c). As the Secretary points out, that limitation on discovery is made
in the context of the express statement about the rules’ construction that they
are intended “to secure the just, speedy and inexpensive determination of all
proceedings.” 29 C.F.R § 2700.1(c).  Id. at 3.  

The Secretary makes it plain that its
argument is not directed at any particular questions among the 39 interrogatories.
Rather, its contention is that exceeding the Federal Rules’ limitation of 25
interrogatories is per se excessive, asserting that “[a]ny
interrogatories in excess of twenty five are [inherently] oppressive and create
an undue burden on the Secretary in light of the limited facts at issue in this
docket.” Id. In seeking to limit the Respondent to 25 interrogatories,
the Secretary also notes that there is guidance in construing the Rules which
provides that “‘[o]n any procedural question not regulated by the Act, these
Procedural Rules, or the Administrative Procedure Act (particularly 5 U.S.C.
554 and 556), the Commission and its judges shall be guided so far as
practicable by the Federal Rules of Civil Procedure…’ [citing] 30 C.F.R. §
2700.1(b).” Id.  In turn, the Secretary notes that the applicable
Federal Rule of Civil Procedure, F.R.C.P. 33, states “unless otherwise
stipulated or ordered by the court, a party may serve on any other party no
more than 25 written interrogatories, including all discrete subparts. F.R.C.P.
33(a)(1).” Id.  

Adding context to its argument, the
Secretary reiterates that the two orders, arising out of the same essential
facts, are of “relative factual simplicity” and that the Respondent’s discovery
plans include deposing its witness on the same matters.[1]

Anticipating
a contention by the Respondent, that Commission Rule 56(b) allows parties to
discover any relevant, non-privileged matter that is admissible evidence or
appears likely to lead to the discovery of admissible evidence and therefore
implicitly rejects the FRCP limitation on the number of interrogatories, the
Secretary observes that Rule 56 speaks to the scope of permissible
discovery, not the quantity of questions permitted by interrogatories.  The
Court agrees with the Secretary’s interpretation.[2]

In
its Response to the Motion,[3]
Respondent’s Counsel “strongly takes issue with the Secretary’s allegation that
[it] is in any way abusing the discovery process, imposing an undue burden on
the Secretary, or frustrating the expeditious resolution of this matter.” Response
at 2.  Respondent, apparently with no priority among its present 39
interrogatories, believes that the Secretary should have answered the first 25
of those interrogatories, with the burden then falling on the Respondent to
compel answers to the unanswered remainders. Not that answering the first 25
would have satisfied the Respondent, because it believes that answers to all of
its interrogatories “are essential . . . to the just and speedy determination
of this matter.”  Id.

The Respondent,
while acknowledging that discovery, as identified under Rule 2700.56(a), may be
limited per Rule 2700.56(c), asserts that it is up to the party seeking to
limit such discovery to establish good cause for such limitations. Sec’y of
Labor v. Newmont Gold Co., 18 FMSHRC 1304, 1305 (Jul. 10, 1996) (“Newmont
Gold”).[4]
The Court believes that the Respondent’s arguments are misguided. This dispute
is not about the scope of discovery and consequently the related argument of
good cause for limiting discovery is not material.[5]

The Secretary’s objections, for now, deal with the distinct issue of the number
of interrogatories. When the Respondent actually does speak to the issue at
hand, it contends that the Commission’s Rules do address interrogatories
and apparently takes the position that because interrogatories are listed among
other discovery tools, there is no need to consult with the Federal Rules of
Civil Procedure. The Court does not share the Respondent’s view of the    all-encompassing
nature of section 2700.58 and its suggestion that the provision closes the door
on the need to look outside of its words. Respondent then repeats its
contention that the Secretary should have at least answered 25 of its
interrogatories, subject only to raising objections to those 25. The problem
with this assertion is that the Respondent never advised the Secretary to
only answer the first 25, nor did it identify any particular
25 among the 37 (or 39, depending upon which party correctly added the number
above 25), nor did it identify any particular 25 interrogatories among
the 64 interrogatories it originally propounded.

Last,
the Respondent, who is at least consistent, completes its response with
arguments that are not germane to the present issue by noting that as “the
Secretary has the burden of proof in this action, it is clearly within
Respondent’s purview to assess and question the written documentation that the
Secretary asserts to support the citations prior to a deposition.” Respondent
adds, for good measure, that “the time and costs associated with taking
depositions on the subject Orders without the benefit of written discovery
responses would far outweigh the costs associated with written discovery, which
Respondent could utilize to clarify and narrow the scope of the questions that
it intends to ask the inspector during the deposition.” Response at 5.

The
Court’s Determination

From
the foregoing discussion it should be clear both that the issue to be decided
is narrow and the Court’s perspective on its resolution. The Commission’s
Procedural Rules do not speak to the number of interrogatories and, because of
that silence, consultation with section 2700.1(b) is entirely appropriate.

Since
1993 the Federal Rules have reflected the determination that interrogatories
should be limited to 25 without leave of court. As reflected in the following
representative decisions, the resolution for this issue has been clearly
articulated: Chudasama
v. Mazda Motor Corp.
123 F.3d 1353 (11th Cir. 1997), Walker v. Lakewood Condominium
Owners Assn, 186 F.R.D. 584 (Dist Ct C.D. Ca. May 26, 1999), observing that
“Rule 33(a) expressly forbids a party from serving more than 25 interrogatories
upon another party ‘[w]ithout leave of court or written stipulation.’ Rule
33(a) was amended to include the numerical limit in 1993. The Rules' Advisory
Committee Notes for the 1993 amendments further emphasize that ‘[t]he purpose
of this revision [was] to reduce the frequency and increase the efficiency of
interrogatory practice’ since ‘the device can be costly and may be used as a
means of harassment.’ See Advisory Committee Note to 1993 Amendment to Rule 33;
Capacchione v. Charlotte–Mecklenburg Schools, 182 F.R.D. 486, 492
(W.D.N.C.1998); Safeco of America v. Rawstron, 181 F.R.D. 441, 443
(C.D.Cal.1998).”  In Safeco v. Rawstron, 181 F.R.D. 44, (CD Ca. May 18,
1998) that court noted that “[t]he numerical limit was added in 1993. Before then,
courts acknowledged that ‘sheer numerosity is not an objection.’Compagnie
Francaise d'Assurance Pour le Commerce Exterieur, 105 F.R.D. 16, 42
(S.D.N.Y.1984). As the Advisory Committee explained, ‘[t]he purpose of this
revision is to reduce the frequency and increase the efficiency of
interrogatory practice.’ See Advisory Committee Note to 1993 Amendment to
Fed.R.Civ.P. 33, 146 F.R.D. 675, 675 (1993). The amendment was based upon a
recognition that, although interrogatories may be a valuable discovery tool, ‘the
device can be costly and may be used as a means of harassment....’ Advisory
Committee Note, 146 F.R.D. at 675. ‘The aim [of the numerical limit] is not to
prevent needed discovery, but to provide judicial scrutiny before parties make
potentially excessive use of this discovery device.’ Advisory Committee Note,
146 F.R.D. at 676.”

This Court takes the same perspective as
those courts. A party seeking to present more than 25 interrogatories bears the
burden of demonstrating a particularized need for each additional interrogatory
beyond the permitted maximum of 25.  In this instance the Respondent needs
first to identify the 25 interrogatories it wants answered. The Secretary has
no obligation to respond until the 25 are identified. If the Respondent wants
to present additional interrogatories, it will need to present those questions
to the Court, along with the justification for each one. Following that, the
Secretary will have an opportunity to respond and the Court will then issue its
ruling.

So Ordered.

/s/ William B. Moran

William
B. Moran

Administrative
Law Judge

Distribution:

Daniel
McIntyre, Esq., US Department of Labor, Office of the Solicitor, 1999 Broadway,

Suite
800, Denver, CO 80202-5708

Mark
N. Savit, Esq., Ross J. Watzman, Esq., Jackson Lewis LLP, 950 17th Street,
Suite 2600

Denver,
CO 80202

[1]
The
Secretary also notes that courts have observed that using both interrogatories
and depositions, though allowed, can be a source for oppression. Schotthofer v.
Hagstrom Const. Co.,
23 F.R.D. 666 (S.D. Ill. 1958).

[2]
Accordingly,
this Court takes a different view from that expressed in GTI Capital
Holdings,
23 FMSHRC 555 (ALJ 2001). In that case, another judge saw the respective
burdens differently. While noting that Rule 56(c) permits a judge to limit discovery to prevent
undue delay or to protect a party from oppression or undue burden or expense,
that judge concluded that Federal Rule 33 does not apply to Commission
proceedings and that a party must file a motion under Rule 56(c) to so limit
discovery. It is true that although the Federal Rules do not apply to
Commission proceedings, as noted, where a question is not regulated by the
Commission’s Rules, the Federal Rules of Civil Procedure are, where
practicable, intended to be a source of guidance. Rule 2700.1(b). The
difference between this Court and the view expressed in GTI Capital
Holdings
is one of the guidance of Rule 33 and upon which party should bear the burden
of establishing that more questions should be permitted. In this Court’s view,
that burden should be on the party seeking to exceed the 25 question
limitation.  

[3]
Respondent’s
Response incorrectly lists the docket in this matter as WEST 2014-103-M. That
docket number involves an entirely different respondent and is not related to
this matter in any way.  However, the Respondent is the counsel for that other
docket.

[4]
The
decision of the administrative law judge in Newmont Gold did not deal
with the number of interrogatories allowable. Instead, that decision’s focus
was upon the scope of discovery and whether depositions would be permitted for
certain high level agency officials. In resolving that dispute, the judge in Newmont
Gold balanced section 2700.56(b) allowing discovery of any relevant,
non-privileged matter that is admissible evidence or appears likely to lead to
the discovery of admissible evidence against section 2700.56(c) which empowers
a judge, for good cause shown, to limit discovery in order to prevent undue
delay or to protect a party or person from oppression or undue burden or expense.
Thus, this Court, apart from the non-binding nature of a fellow administrative
law judge’s rulings on other judges’ determinations, concludes that Newmont
Gold is not pertinent.

[5]
From that
incorrect starting point, Respondent turns to a series of arguments that are
also not pertinent to the present issue, including the risk of being exposed to
a pattern of violations charge and the contention that discovery is not limited
by the size of a proposed penalty. Simply stated, these are not material to the
present issue. Because several of the Respondent’s contentions spring from similar
incorrect premises, they are not specifically addressed.