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[DOCID: f:yk9924o.wais]

 
ROOT NEAL & COMPANY
July 28, 1999
YORK 99-24-M

        FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               OFFICE OF ADMINISTRATIVE LAW JUDGES
                      2 SKYLINE, 10th FLOOR
                       5203 LEESBURG PIKE
                  FALLS CHURCH, VIRGINIA  22041

                          July 28, 1999

SECRETARY OF LABOR,             : CIVIL PENALTY PROCEEDING
     MINE SAFETY AND HEALTH     :
     ADMINISTRATION (MSHA),     : Docket No. YORK 99-24-M
               Petitioner       : A. C. No.  30-02863-05501 8UQ
          v.                    :
                                : West Bloomfield Mine
ROOT NEAL & COMPANY,            :
               Respondent       :

           ORDER GRANTING IN PART AND DENYING IN PART
                  RESPONDENT'S MOTION TO COMPEL

     I.  Background

     This  civil  penalty proceeding is being brought by the
Secretary  against  Root  Neal  &  Company  (Root  Neal),  a
contractor  of  Elam Sand & Gravel Corporation (Elam).  This
matter is scheduled  for  hearing  on  August  3,  1999,  in
Rochester, New York.

     The  case concerns an accident that occurred on May 9, 
1998, wherein Michael Corbin, an Elam employee, sustained 
serious injuries to his arms and back.  The accident occurred
when Corbin  was  struck  by a descending loader bucket of a
Caterpillar 966F.  At the time of the accident, Corbin was  
engaged  in  mounting  a bucket scale  on  the  Caterpillar  
loader with Root Neal employees Frank  Pluta  and John Wall.  
The  May  26, 1998, accident report prepared by Mine Safety 
and Health (MSHA) Inspector William L. Korben, Jr., reflects 
that Elam's superintendent Alan "Jody" Randolph assigned  
Corbin to assist  Pluta and Wall because of Corbin's welding 
experience. A copy of the May 26, 1998, accident report was 
provided to the respondent by the Secretary on July 23, 1999.

     On July 26, 1999,  the Secretary filed her Response and
Objections to Interrogatories posed by  the  respondent.  In
response to Interrogatory No. 4 requesting the  identity  of
all  persons who had personal knowledge of the circumstances
surrounding  the  accident,  the  Secretary identified David
Spallina, Elam's President, Corbin, Randolph, Wall and Pluta
as  individuals having first hand knowledge.   On  July  26,
1999,  the  Secretary  also  filed her witness exchange list
reflecting  that she had advised  the  respondent  that  her
intended witnesses included Spallina, Randolph, and Corbin.

     Under Rule  56(b),  29  C.F.R.   2700.56(b),  and  Rule 
26(b)(1) of the Federal Rules of Civil Procedure, all relevant
material  not  privileged  is  subject  to  discovery.   The
Commission and the Federal Courts have broadly construed  the
discovery rule  with  respect  to what is relevant  material,
and  have,  conversely,  narrowly  construed  the  claim  of
privilege.   Hickman  v.  Taylor,  329  U.S.   495   (1947);
Secretary/Logan  v.  Bright  Coal  Co.,  Inc.,  6 FMSHRC 2520
(1984).   The  burden  of  persuasion rests with  the  party
asserting the privilege.  Even  if  a  privilege is properly
asserted, it remains qualified.  Thus, the  material  may be
subject  to  discovery  upon  a showing by the party seeking
disclosure  that  there  is  a "substantial  need"  for  the
material  and that a failure to  disclose  would  impose  an
"undue hardship."   Roviaro  v.  United States, 353 U.S. 53,
60-61 (1957); Consolidation Coal Company,  19  FMSHRC  1239,
1243  (July  1997)  (Citations  omitted);  Fed  R.  Civ.  P.
26(b)(3).

     II.  The Asserted Privileges

     The Secretary seeks to protect from disclosure fourteen
documents  based  on  assertions  that these  documents  are
protected  by the informant's privilege,  the  work  product
privilege and the deliberative process privilege.

          A.  The Informant's Privilege

     The Commission discussed the history and substance of the
informant's privilege in Secretary of Labor  o/b/o  Donald  L.  
Gregory, et al v. Thunder Basin Coal Company, 15 FMSHRC 2228,  
2234 (November 1993). The Commission stated:

     Commission  Procedural  Rule  61,  .  .  .  29 C.F.R. 
      2700.61,  provides  that,  "except  in  extraordinary
     circumstances," a judge  "shall  not  . . . disclose or
     order a person to disclose to an operator  or his agent
     the  name  of  an  informant  who  is  a  miner."   The
     informant's  privilege  is based on the Supreme Court's
     discussion in
     Roviaro v. United States,  353  U.S.  53  (1957).   The
     informant's privilege is the right of the government to
     withdraw   from  disclosure  the  identity  of  persons
     furnishing information  on violations of the law to law
     enforcement officials.  Bright,  6  FMSHRC  at 2522-23.
     In   general,   the   privilege  protects  against  the
     disclosure of an informant's  identity  and against the
     release  of  those portions of written statements  that
     could reveal an  informant's  identity.  The Commission
     has  emphasized  -  and  all  parties  to  the  present
     proceeding  agree  - that the privilege  is  qualified.
     Where disclosure is essential to the fair determination
     of a case, the privilege  must yield or the case may be
     dismissed.   Bright,  6  FMSHRC   at  2523.   (Emphasis
     added).

     Thus, the informant's privilege protects  the identity of an
anonymous informant.  Although the Secretary is  not  seeking  to
protect  information provided to MSHA by Root Neal employees Wall
and  Pluta,   the  Secretary  seeks  to  protect,  based  on  the
informant's privilege, any statements that may have been provided
to MSHA by Corbin,  the  victim  of  the accident, as well as any
statement  by  Randolph  and  Spallina.  Thus,  in  essence,  the
Secretary  argues she may invoke  the  informant's  privilege  to
protect from  disclosure  any  written statement provided to MSHA
investigators  even  if  the operator  knows  an  individual  has
provided  information  to  MSHA   and   the   individual  has  no
expectation of anonymity.

     However,  the  informant's  privilege  is  not  intended  to
protect  the content of statements given to government  officials
unless  that   content   discloses   a  confidential  informant's
identity.  Here, the respondent knows  that  Corbin, Randolph and
Spallina have first hand knowledge of the facts  surrounding  the
accident.    Surely   the  Secretary  does  not  claim  that  the
respondent is unaware that  the accident victim has been a source
of MSHA's information.  Rather, Corbin, Randolph and Spallina are
well known to the respondent  as  individuals  that have provided
MSHA  with  important  information.   In  fact,  they  have  been
identified by the Secretary in her answers to interrogatories and
in  her  list  of  intended  witnesses.   In  this  regard,   the
Commission  has  concluded  a claim of informant's privilege does
not  lie  where  there  is  an  express   identification  of  the
individual alleged to be an informant.  Thunder  Basin, 15 FMSHRC
at  2236.   Accordingly,  as noted below, statements  by  Corbin,
Randolph and Spallina, or,  summaries  of information provided by
Corbin, Randolph and Spallina in MSHA investigative  reports, are
not protected by the informant's privilege.

          B.  The Work Product Privilege

     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 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, but once that party
has met its  burden,  the  burden  shifts  to  the  party seeking
disclosure to make a requisite showing that there is  substantial
need  and  undue  hardship  to  overcome the privilege.  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).

     It  is  clear  that  the  investigative  report   and  other
documents sought to be protected under the work product privilege
are "tangible documents" prepared "by or for the Secretary."  The
dispositive  question  concerning  the applicability of the  work
product privilege is whether these documents  were  "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. (Emphasis added).

     The Secretary seeks to protect substantial portions of  MSHA
November  17,  1998,  110(c)  investigative  report  prepared  by
Special  Investigator  John S. Patterson.   Although  the  110(c)
investigation did not result  in any 110(c) charges being brought
by the Secretary, the 110(c) investigation  was  conducted  after
the citations in issue had been issued in May 1998.

     In  ASARCO  the  Commission  concluded  that  a portion of a
110(c)  investigation  was  entitled  to work product protection.
However,  the portion of the investigative  report  protected  in
ASARCO concerned notes made by an MSHA Special Investigator while
interviewing  an MSHA supervisory inspector in the presence of an
attorney assigned  to  the  Secretary's  Solicitor's  office.  12
FMSHRC  at  2257.   In  contrast,  here,  the Secretary seeks  to
protect  from  disclosure  investigative  report   summaries   of
information provided by individuals, who have now been identified
by  the  Secretary  as individuals with first hand knowledge, and
who the Secretary intends  to  call  as  witnesses.  The facts in
this case are therefore distinguishable from ASARCO.

     Moreover,  even  if  the report was protected  by  the  work
product privilege, the respondent  has  a  substantial  need  for
statements  made  to  investigators  shortly  after  the  subject
accident occurred by individuals with first hand knowledge.   See
Consolidation  Coal,  19  FMSHRC  at  1244,  n.4.  To deprive the
respondent  of  such  statements made following the  accident  by
victim  Corbin  and  his supervisor  Randolph  creates  an  undue
hardship   in  the  preparation   of   the   respondent's   case.
Consequently,  as  noted  below,  with  the exception of the MSHA
investigator's conclusions that are entitled  to protection under
the deliberative process privilege,  the portions  of  the 110(c)
investigative report that have been redacted must be provided  to
the respondent in discovery.

          C.  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)].
"Protected by the privilege are `pre-decisional' communications  
that are `deliberative,' meaning that the communication `must 
actually be  related  to  the  process  by which policies are
formulated.'" Id. (quoting 591 F.2d at 774)(emphasis omitted).  
Thus, the  conclusions  of  the  investigator  in  the  110(c) 
investigation  report  are  "pre-decisional"  in  nature  and  
protected   by  the  deliberative  process privilege.

          D.  The Miner Witness Privilege

     Commission Rule 62, 29 C.F.R.  2700.62, provides:

     A  judge shall not, until two days  before  a  hearing,
     disclose  or  order a person to disclose to an operator
     or his agent the name of a miner who is expected by the
     judge to testify  or  whom a party expects to summon or
     call as a witness.

     Application   of   this   privilege   is   consistent   with
Congressional concern regarding  the  possibility  of retaliation
against miners who participate in enforcement proceedings brought
by the Secretary pursuant to the Mine Act.  Bright,  6  FMSHRC at
2524.   However,  the  Secretary  has  waived this privilege with
respect to Corbin and Randolph since they have been identified
as  intended  witnesses.  The miner witness  privilege  does  not
apply to David Spallina who is Elam's President.

     III.  Disposition of the Secretary's Privilege Claims

     Document 1:  Health and Safety Conference worksheet prepared
by MSHA personnel. This document was prepared after the
respondent  
notified MSHA that it was contesting the citations. Consequently, 
it  is  protected  by  the  work product privilege.

     Document 2: MSHA Special Assessment Recommendation Form.
This  document  provides  the  basis, or lack thereof,  for a
special assessment.  A respondent is then notified whether a
special assessment is assessed.  The document is prepared in
the normal course of business whether  or  not a citation is
contested.  Moreover, this form provides for notification of
the operator that a special assessment has been  made.  This
form  has  previously  not  been  accorded  work product  or
deliberative  process  protection.   See  ASARCO,  Inc.,  14
FMSHRC 1323, 1328-30 (August 1992).  Accordingly,  it is not
privileged and must be disclosed.

     Documents 3  through 8:  These  documents  are  redacted 
portions of the 110(c) investigation prepared by MSHA Special
Investigator  John  S.  Patterson on November 17. 1998, that
contain factual material  including  information provided by
Corbin and Randolph.  These individuals have been identified
by the Secretary as intended witnesses  who  have first hand
knowledge of the accident.  Thus, these witnesses  lack  the
anonymous  informant status that is a condition precedent to
the informant's  privilege.  The nature of the investigative
report is not entitled  to  work product protection as there
is no evidence that it had been  prepared after consultation
with the Solicitor's office in contemplation  of litigation.
Even  if  these redacted portions were protected  under  the
work product privilege, the need for the victim's statements
and his supervisor's  statements  provided shortly after the
accident   outweighs   the   privileged   nature    of   the
investigator's summary of the information provide to  him by
these individuals.  Depriving the respondent of the victim's
recollection  of the accident as reported to MSHA places  an
undue hardship  with  regard  to the respondent's ability to
prepare its case.

     Document 9: This document is a redacted portion of MSHA's
110(c) investigation. The  second  paragraph  which  had  been  
redacted concerns factual  information  and  must be disclosed.  
The remaining portion  of Document 9 deals with the conclusion  
and recommendation of the investigative inspector. Conclusions
and  recommendations  are  protected  by  the   deliberative
process privilege.  Thus, the Secretary's privilege claim in
Document 9 is granted in part and denied in part.

     Document  10: This document is a redacted portion of the
110(c)  investigation  that   identifies   the   individuals
interviewed by the 110(c) investigator.  The identity of all
of  these individuals has been provided by the Secretary  in
her witness  exchange  list  and answers to interrogatories.
Consequently,  there  is  no informant's  privilege.   Thus,
Document 10 must be disclosed.

     Document 11: Document 11 contains  portions  of notes of 
the 110(c)  investigator. They are deliberative in nature as
they served as the basis for the 110(c) investigative report
and conclusions.  As such, they are entitled to deliberative
process privilege protection.

     Document 12: This document  is  an  MSHA  form  entitled 
Possible Knowing/Willful Violation  Review  Form. It  contains  
the opinions, conclusions and recommendations regarding whether
110(c) charges  should  be  brought.  It  is  deliberative  in
nature  and  entitled  to  deliberative  process   privilege
protection.

     Document 13 and 14: These documents are statements provided
to  MSHA  by  individuals  who  have  been  named  as  intended
witnesses.    Their   identity  has  been  provided  to  the
respondent by the Secretary.   Therefore,  these  statements
are  not  entitled  to  protection under the informant's  or
miner  witness privileges.   Accordingly,  copies  of  these
statements must be provided to the respondent.

                              ORDER

     Consistent with the above discussion, IT IS ORDERED that 
the respondent's motion to  compel  with  respect  to Document 
Nos. 2 through Document 8, Document No. 10, Document  No.  13  
and Document No.  14 IS GRANTED.  The respondent's motion to 
compel  with respect  to  Document No. 9 IS GRANTED IN PART AND 
DENIED IN PART.

     IT IS FURTHER  ORDERED,  having  provided the parties with
a facsimile of this Order, and having  advised  the parties of
the substance of this Order  partially  compelling  disclosure
during  a  conference call  on the  morning of  July 27, 1999,
that the Secretary  provide copies of the above documents to
the respondent no later  than  the  close  of business (5:00
p.m.) on July 28, 1999.

     IT IS FURTHER ORDERED That the Secretary's request for a
protective  order  with  respect  to  Document  No.  1,  the
conclusion  and  recommendation  portion  of Document No. 9,
Document 11 and Document 12 IS GRANTED.

                              Jerold Feldman
                              Administrative Law Judge

Distribution:

James A. Magenheimer, Esq., Office of  the  Solicitor, U.S. 
Department of Labor, 201 Varick  Street,  Room  707, New York,  
NY 10014 (By Facsimile and Certified Mail)

Robert G. Walsh, Esq., Walsh, Fleming  &  Chiacchia,  P.C.,  
3819 South Park Avenue, Box 1909, Blasdell, New York, 14219-0109
(By Facsimile and Certified Mail)

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