**William H. Ewing, Attorney at Law **

**510 E. Mt. Pleasant Avenue**

**Philadelphia, PA 19119-1232**

**william.ewing@verizon.net**

**215-668-7237**

OSHA Docket Office, Docket No. OSHA-2007-0028

U.S. Department of Labor, Room N-2625

200 Constitution Avenue, NW.

Washington, DC 20210

By Facsimile: (202) 693-1648

** Re: Docket No. OSHA-2007-0028**

Dear Friends:

The proposed amended regulations at 29 CFR Part 24, 72 Fed. Reg. 44956
(Aug. 10, 2007) would frustrate the purpose of the statute, which is to
afford protection for those who help to protect the environment, assist
the government in obtaining compliance, and participate in other
activities that promote the statutory objectives. *Devereux v. Wyoming
Association of Rural Water, *93-ERA-18 (Sec'y, October 1, 1993);*
Tyndall v. U.S. Environmental Protection Agency, *93-CAA-6, 95-CAA-5
(ARB, June 14, 1998). The interim final rule, however, proposes to alter
Part 24 to deter complainants from seeking relief in district courts in
a way that hampers all complainants in the preparation of their cases.
The Department would serve the statutory goals better by becoming a
superior forum for these specialized cases. The Department should
compete on the quality of its determinations rather than sacrifice
quality for the sake of speed.

In Section 24.104(b), the regulation should provide for OSHA to serve
the respondent\'s response on the complainant\'s representative. The
practice among OSHA field offices is uneven on this point. Complainants
will have a right to the response once OSHA closes its investigation and
the complainant submits a FOIA request. However, the complainant could
assist OSHA in its investigation if the complainant has a copy of the
respondent\'s response. Also, respondents should know that their
response will not be confidential so they are not caught by surprise
when their response is used as an exhibit in the ALJ hearing.

In Section 24.105(b), the rule should specifically require service on
the attorney of record for each party (if the party has counsel). I am
aware of a case where OSHA sent the determination directly to a
complainant with limited English proficiency, even though the attorney
signed and filed the original complaint. The attorney did not learn
about the determination until OSHA sent him a copy \-- more than a month
later. Even though he filed the objection and request for hearing
immediately upon his receipt of the determination, the ALJ dismissed the
objection and request for hearing on grounds that it was not made within
thirty days, counting from the original issuance directly to the
complainant. This case is currently pending at the ARB (ARB Case No.
06-146). We could avoid these types of problems if the rule specifically
required service on the attorney of record, or alternatively, if the
rule allowed objections within thirty days of the last service when the
party and his or her attorney are served at different times.

I appreciate the provision in Section 24.105(c) expanding the time to
file objections and requests for hearing. This change is long overdue to
help parties get cases decided on the merits, instead of on
technicalities. One of the remaining problems in the environmental
whistleblower cases is the extremely short time limit (30 days) to file
the original complaint with OSHA. Because this is a specialized area of
the law, whistleblowers often experience difficulty in finding an
attorney with the necessary knowledge or experience within this time
limit. I appreciate the Department\'s effort to expand the time limit
and maximize the opportunities for decisions on the merits.

There is a major problem, however, with the last sentence of Section
24.107(b) (\"Administrative law judges have broad discretion to limit
discovery in order to expedite the hearing.\"). It had been well
established that the time limits for adjudication can be extended or
waived to allow for the completion of discovery. *Timmons v. Mattingly
Testing Services*, 95-ERA-40, D&O of Remand by ARB, pp. 5-6 (June 21,
1996). An initial request to extend the time limits is routinely
granted. *Tracanna v. Arctic Slope Inspection Service*, 97-WPC-1, ARB
No. 97-123, D&O of Remand by ARB, at 5 (Nov. 6, 1997). Adequate time is
absolutely necessary to accomplish proper discovery in a manner
consistent with the Federal Rules of Civil Procedure. Accord, *Malpass
v. General Electric Co.,* 85-ERA-38/39, D&O of SOL, slip op. at 12
(March 1, 1994). The Secretary of Labor has stated that parties to DOL
whistleblower proceedings have "all the discovery mechanisms of the Rule
of Practice" available to them to assist in preparing for a hearing.
*Malpass v. General Electric Co.,* 85-ERA-38/39, D&O of SOL, slip op. at
12 (March 1, 1994). In *Holub v. H. Nash Babcock,* *Babcock & King,
Inc.*, 96-ERA-25, Discovery Order of ALJ (March 2, 1994), the ALJ ruled
that "the law is well settled regarding the appropriateness of extensive
discovery in employment discrimination cases. Further, the courts have
held that liberal discovery in these cases is warranted." *Id*., slip
op. at 6. Also see *McDonnell Douglas Corp. v. Green*, 411 U.S. 792,
804-05 (1073) (extensive discovery in employment discrimination cases is
necessary and the refusal to adhere to the "liberal spirit" of discovery
would be an abuse of discretion); *Duke v. University of Texas at El
Paso*, 729 F.2d 994, 997 (5th Cr. 1984) ("procedural technicalities" to
impede liberal discovery are improper)*.* One member of the ARB
explained:

In employment discrimination cases, the courts have held that discovery
should be permitted "unless it is clear that the information sought can
have no possible bearing upon the subject matter of the action."
*Marshall v. Electric Hose & Rubber Co.*, 68 F.R.D. 287, 295 (D. Del.
1975) (citations omitted). "In such cases, the plaintiff must be given
access to information that will assist the plaintiff in establishing the
existence of the alleged discrimination." *Lyoch v. Anheuser-Busch
Companies, Inc.*, 164 F.R.D. 62, 65 (E.D. Mo. 1995) (citations omitted).
*Accord* *Trevino v. Celanese Corp.*, 701 F.2d 397, 405 (5th Cir. 1983)
(vacating protective order which limited discovery in part because,
"imposition of unnecessary limitations on discovery is especially
frowned upon in Title VII cases."); *Flanagan v. Travelers Insurance
Co.*, 111 F.R.D. 42, 45 (W.D.N.Y. 1986) (same). Consistent with this
body of case law, the Secretary of Labor and the ALJs have recognized
the broad scope of discovery to be afforded parties in whistleblower
cases.* See, e.g., Malpass v. General Electric Co.*, Case Nos.
85-ERA-38/39, Sec'y Dec., Mar. 1, 1994, slip op. at 12; *Holub v. Nash,
Babcock, et al.*, Case No. 93-ERA-25, ALJ Disc. Ord., Mar. 2, 1994, slip
op. at 6.* See generally Timmons v. Mattingly Testing Services, Inc.*,
ALJ Case No. 95-ERA-40, ARB Dec. & Ord. of Rem., June 21, 1996, slip op.
at 4-6 (discussing the "full and fair presentation" of a whistleblower
case by the parties).

*Khandelwal v. Southern California Edison*, ARB No. 98-159, ALJ Nos.
1997-ERA-6 (ARB Nov. 30, 2000), concurring opinion of E. Cooper Brown.

It is ironic that Congress created the judicial bypass for ERA cases out
of a perception that the DOL process was not adequate to protect
whistleblower interests, and now the DOL is using the bypass provision
as a basis to make its process even less suitable. I urge the Department
to make its process better so that complainants are encouraged to bring
their claims to the Department and allow the Department to complete its
process.

If the Department was intent on limited discovery for the sake of speed,
it could make clear that ALJs can make an adverse inference of unlawful
discrimination based on a respondent\'s failure to provide full and
complete discovery responses. Accord, *Malpass v. General Electric Co.,*
85-ERA-38/39, D&O of SOL, slip op. at 12 (March 1, 1994). The Department
could add a requirement for initial disclosures (reference FRCP
26(a)(1)). The Department could also expedite discovery by shortening
the time to respond to interrogatories, requests for documents or
admissions.

I specifically suggest that the Department require parties to provide
discovery responses in searchable electronic forms when a party has the
responsive information in such forms. I have noticed numerous parties
printing out emails, for example, and producing the hard copies to
frustrate an opponent\'s ability to save and search the responsive
documents for key names or phrases. The searchable electronic form is
necessary to properly search and manage the documents. It is not fair
that respondent can search the relevant emails, policy files, and other
documents electronically while complainant and his counsel would have to
read through all the of pages of paper to get the same information. I
mention a searchable electronic form because some respondents\' counsel
have been converting documents to PDF forms by scanning the hardcopy or
otherwise making the PDF file non-searchable. That frustrates the
purpose of electronic discovery. Courts considering the issue have held
that production of electronic documents in their electronic form is
proper. *Armstrong v. Executive Office of the President*, 1 F.3d 1274
(D.C. Cir. 1993), reversed on other grounds, 90 F.3d 553 (D.C. Cir.
1996). *See also Anti-Monopoly, Inc. v. Hasbro, Inc., *1995 U.S. Dist.
LEXIS 16355 (S.D.N.Y.) "Production of materials in hard copy form does
not preclude a party from receiving the same information in electronic
form."; *see also Cobell v. Norton, *2002 U.S. Dist. LEXIS 5291 (D.D.C.)
(request for permission to produce emails on paper draws sanctions).
Production electronically is easier for the producing party and more
useful to the receiving party. It is the right thing to do. The ALJ
erred in failing to compel respondent to produce its electronic versions
of its documents.

Finally, I urge modifications to Section 24.110 to further the goal of
deciding cases on their merits. Specifically, the Department can allow a
party to set out sufficient grounds for the ARB review, but then add
additional grounds in the brief. The previous rule had allowed parties
to make a simply request for review, and then set out the grounds in the
brief. In appeals to the federal circuit courts, the process of writing
the brief is when counsel is obligated to review the entire record to
set out the assignments of error. To require that a party review the
entire record to identify all the errors in less than ten business days
(since the ten days run from the date of the decision, not the date
counsel receives it) is unrealistic and unfair. I notice that in Section
24.105(c), the Department has expanded the time to file a simple
objection and request for de novo review from five (5) days to thirty
(30) days. I support this change in Section 24.105(c). However, it is
uneven that parties are allowed thirty (30) days to file a simple
request for hearing, but less than ten (10) days to review the entire
record to identify all the assignments of error. In particular, the
complainant and/or his attorney may be on vacation or on trial for part
or all of the ten (10) days. Thirty (30) days would be a better time
limit for Section 24.110(a). To the extent that the ARB needs to
determine that there are good issues present for briefing, this goal can
be achieved without limiting a party to assign only those issues
identified in the petition for review. The Department can require that a
party file a petition that identifies good grounds for the review, and
then permit the party to raise additional assignments of error in their
brief. This latter alternative would still allow the ARB to screen the
petitions for meritorious issues for briefing, and preserve the
fundamental goal of deciding cases on their merits instead of adding
more technical grounds to defeat claims.

If Department personnel or other interested parties have any questions
about my comments, they are welcome to call on me.

Very truly yours,

William H. Ewing

William H. Ewing

Attorney at Law