United States of America

 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 1120 20th Street, NW, Ninth Floor

 Washington, DC 20036-3457

______________________________________

SECRETARY OF LABOR, :

 :

 Complainant, :

 :

 v. : OSHRC DOCKET NO. 08-1104

 :

IMPERIAL SUGAR COMPANY, :

IMPERIAL-SAVANNAH, L.P., :

 :

 Respondents. :

______________________________________:

ORDER

This matter comes before the undersigned on Respondents’ Motion to Depose OSHA

Compliance Officers (“CO’s”). Specifically, Respondents seek to depose CO’s of OSHA and of

Michigan and Maryland OSHA, which are “State plan” states. Respondents contend the depositions

are needed (1) to authenticate records of inspections of other facilities, which Respondent obtained

pursuant to FOIA requests, and (2) to obtain testimony regarding the actual conditions that existed

during the underlying inspections. Respondents claim they intend to use the depositions only to find

out what was observed during other inspections as to large dust accumulations and that the deposition

testimony of the CO’s is relevant to matters of industry practice. The Secretary, in her response, states

that she will stipulate to the authenticity of the records obtained by FOIA requests and anticipates the

State OSHA agencies will do the same; thus, as the Secretary points out, the depositions are not

needed to authenticate the records. The Secretary opposes the Motion, asserting that the information

Respondents seek in the depositions is not relevant to the claims or defenses in this matter; in this

regard, she notes that none of the prior inspections involved facilities owned or operated by

Respondents. In addition to stating their arguments in writing, oral argument was made by the parties

before the undersigned telephonically on this date. I have considered all of the parties’ arguments,

and I conclude that Respondents may depose the CO’s, but only as set out below.
As the Secretary points out, in their Notice of Rule 30(b)(6) Deposition, Respondents are

seeking the designation of one or more Federal OSHA employees to testify with respect to the

following matters as to other, non-Imperial facilities:

1. “the specific physical conditions found and facts gathered at” the inspection

2. the authentication of documents in the inspection files

3. “the identities of all Complainant’s employees and agents who have conducted

inspections of or otherwise entered the Location [of the inspection] at any time since

January 1, 2000, through the date of this Notice of Deposition”

4. “the identities of all of Complainant’s employees and agents who participated in,

reviewed or approved the decision to issue the citations regarding the Location [of the

inspection]”

Number 2 above is no longer an issue, assuming that the Secretary and the State plan agencies

will stipulate, as indicated, to the authenticity of the records in the inspection files obtained through

FOIA requests. Furthermore, as to Number 4 above, I agree with the Secretary that the information

sought in that item is privileged and that Respondents may not have discovery in that regard.

As to Number 1 above, I note that Rule 26(b)(1) states, in relevant part, that “[p]arties may

obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or

defense....” I also note that “[r]elevancy is broadly construed, and a request for discovery should be

considered relevant if there is ‘any possibility’ that the information sought may be relevant to the

claim or defense of any party.” Merrill v. Waffle House, Inc., 227 F.R.D. 467 (N.D. Tex. 2005)

(citations omitted). On the other hand, upon reviewing the list of depositions Respondents wish to

take, as set out on pages 1 and 2 of the Motion, I note that the list includes inspections that do not

appear to involve sugar refineries. I conclude that discovery into inspections of facilities that do not

conduct sugar refining would have no relevance to this matter with respect to industry custom and

practice in sugar refineries. Respondents may thus only conduct the depositions set out in the list that

involve inspections of sugar refineries. In addition, those depositions are limited to the information

contained in the inspection files, such as the OSHA 1B’s and photographs taken by OSHA.

Respondents may, however, inquire into the designee’s experience with sugar refineries, including

OSHA inspections as well as other relevant work experience and education. Respondents may also

inquire whether the designee has personal knowledge of any other inspections involving sugar

refining facilities that are not already on the list in the Motion.

Finally, as to Number 3 above, I find that the information sought therein does not appear

“reasonably calculated to lead to the discovery of admissible evidence,” with one exception.
Respondents may ask the Secretary’s designee, if that individual is not the CO who inspected the

facility, to identify the OSHA CO who conducted the inspection about which the designee is

testifying.

SO ORDERED this 31st day of March, 2009.

/s/ Covette Rooney

COVETTE ROONEY

U.S. OSHRC JUDGE
 United States of America

 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 1120 20th Street, NW, Ninth Floor

 Washington, DC 20036-3457

SECRETARY OF LABOR, :

Complainant, :

v. : OSHRC DOCKET NO. 08-1104 

IMPERIAL SUGAR COMPANY, :

IMPERIAL-SAVANNAH, L.P., :

 Respondents. :

 CERTIFICATE OF SERVICE

I certify that all parties have consented that all papers required to be served may be served and filed

electronically. I further certify that a copy of the Order was electronically served on March 31, 2009,

on the following parties:

Charles H. Morgan, Esq. 

charlie.morgan@alston.com

Matthew J. Gilligan, Esq. 

matt.gilligan@alston.com

Ashley D. Brightwell, Esq. 

ashley.brightwell@alston.com

Jeremy D. Tucker, Esq. 

jeremy.tucker@alston.com 

KAREN E. MOCK 

Mock.karen@dol.gov

ANGELA F. DONALDSON 

Donaldson.angela@dol.gov

/s/Arnita Acty

Legal Assistant