.
EASTERN ASSOCIATED COAL CORP.
October 26, 2000
WEVA 2000-58-D


        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, Suite 1000
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041


                        October 26, 2000

SECRETARY OF LABOR, MSHA         :  DISCRIMINATION PROCEEDING
  MINE SAFETY AND HEALTH         :
  ADMINISTRATION (MSHA),         :  Docket No. WEVA 2000-58-D
  ON BEHALF OF GARY DEAN MUNSON, :  MORG CD 2000-01
                  Complainant    :
            v.                   :
                                 :
EASTERN ASSOCIATED COAL CORP.,   :  Federal No. 2
                  Respondent     :  Mine ID 46-01456

               ORDER GRANTING MOTION TO COMPEL AND
               DENYING MOTION FOR PROTECTIVE ORDER

     Before me are two motions addressed to a discovery dispute.
Respondent has moved for an order compelling the appearance of
Richard L. Eddy, President of District 31, United Mine Workers of
America, at a resumption of his deposition.  The deponent, Mr.
Eddy, through counsel, has opposed that motion and moved for a
protective order, barring resumption of the deposition.

     Mr. Eddy was served with a subpoena directing him to appear
for deposition on October 4, 2000, in the offices of Respondent's
counsel, to give testimony regarding the issues in this
discrimination proceeding.  Mr. Eddy duly appeared, without
counsel,  and responded to questions.  However, when counsel for
Respondent attempted to question Mr. Eddy about his definition of
a "good employee", a term he had used in an unsworn statement he
had provided to the Mine Safety and Health Administration (MSHA),
he refused to answer.  He objected  to counsel's framing of a
question as to how he would assess the conduct of one of
District 31's employees in a hypothetical situation.  Mr. Eddy
viewed the question as inquiring into his running of the District
office, which he viewed as irrelevant.  At that point, he
determined that he should be represented by counsel and requested
an opportunity to return to his office to contact counsel.  The
deposition was adjourned.

     Respondent served its motion on October 12, 2000, seeking an
order compelling Mr. Eddy to appear for a resumption of his
deposition, or, alternatively, to bar use of his unsworn
statement as evidence in this proceeding.  Mr. Eddy has moved for
a protective order, requesting that Respondent's motion be denied
on grounds that compelling resumption of the deposition would
amount to "unjust harassment."  The basis for the harassment
claim is that the deposition had consumed approximately two hours
and that Respondent's counsel had inquired into privileged
matters and had improperly terminated the deposition.  The basis
of the assertion of privilege is not explained, except by a
reference to "internal Union affairs."

     Deponent's position is not well-founded, either factually or
legally.  The claim of privilege is unexplained, unsupported by
citation to legal authority and is not apparent from the nature
of the inquiry.  The deposition transcript also makes clear that
it was the deponent who requested an adjournment of the
deposition in order to return to his office to contact and secure
legal representation, presumably for a resumption of the
deposition, which could not be accomplished in a matter of days,
in part, because of his unavailability.  While it is possible
that Mr. Eddy would have remained and participated in a
continuation of the deposition, that is not at all clear from the
record.

     Based upon the forgoing, Eddy's motion for a protective
order will be denied and Respondent's motion to compel will be
granted.  All counsel, parties and witnesses are admonished to
cooperate in the discovery process.  Good faith attempts to
rephrase questions can often avoid an objection.
Counterproductive attempts to pursue details of questionable
significance should be avoided.  The particular question that
generated the problem here, for example, might be reconsidered.
The basis for Mr. Eddy's belief that Complainant was a "good
worker" had been explored in some detail.  In fact, Respondent's
witnesses had been somewhat complimentary of Complainant's work
performance at the temporary reinstatement hearing.  Hopefully,
counsel will find more productive lines of inquiry than pressing
Mr. Eddy for a response to a very limited hypothetical question
about actions of a District 31 employee.

     Counsel are also reminded of the requirements of Fed. R.
Civ. P. 30(d), applicable here through Commission Rule 2700.1(b),
30 C.F.R.  2700.1(b).  Objections are to be stated concisely and
in a non-argumentative and non-suggestive manner.  In most
situations, the question should be answered after the objection
is noted.  A witness can be instructed not to answer only in very
limited circumstances, as applicable here, to preserve a
privilege or to allow prompt presentation of a motion for a
protective order on grounds that the examination is being
conducted in bad faith, or such a manner as unreasonably to
annoy, embarrass, or oppress the deponent.  If privilege is
asserted as an objection, the specific privilege claimed should
be identified and the basis for asserting it should be explained.
Efforts should be made to rephrase the inquiry to avoid a bona
fide claim of privilege.  As noted above, the unexplained mention
of privilege in Deponent's motion does not appear bona fide.
And, while the line of inquiry might have been shaped in a more
effective or less objectionable manner, it did not approach the
level for which relief might be appropriately sought under Rule
30(d)(3).

     Based upon the foregoing, Respondent's motion to compel is
granted and Deponent's motion for a protective order is denied.
Mr. Eddy is directed to appear for resumption of his deposition,
in the offices of Respondent's counsel, at the earliest
convenience of the parties to this proceeding.


                           Michael E. Zielinski
                           Administrative Law Judge


Distribution:

M. Yusuf Mohamed, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203
(Mail and Facsimile)

Rebecca Oblak Zuleski, Esq., Furbee, Amos, Webb & Critchfield,
PLLC, 5000 Hampton Center, Suite 4, Morgantown, WV 26505  (Mail
and Facsimile)

Charles F. Donnelly, Esq., Donnelly & Carbone, P.L.L.C., P.O. Box
152, Charleston, WV 25321-0152 (Mail and Facsimile)