UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

______________________________________ 

Secretary of Labor, ) 

 ) 

 Complainant, ) CONSOLIDATED 

 ) 

v. ) OSHRC Docket Nos. 13-1770 

 ) and 13-1771 

National Pipe and Plastics, Inc., ) 

 ) 

Respondent. ) 

 ) 

______________________________________ ) 

ORDER DENYING RESPONDENT’S MOTION TO QUASH SECRETARY’S 

SUBPOENA DUCES TECUM TO SIERRA CLAIM SERVICES, LLC, TO THE EXTENT 

INDICATED HEREIN 

I. FACTS 

National Pipe & Plastics (NPP) provides PVC pipe for agricultural, commercial, 

municipal and export markets in North America. On March 22, 2013, Mr. Chris Rick was 

allegedly fatally injured by a Sellick powered industrial truck operated by a NPP employee, Isaac 

Ravenell, in a yard at NPP’s facility at 3421 Old Vestal Road, Vestal, New York 13850. NPP 

promptly reported the fatality to the Occupational Safety and Health Administration (OSHA) and 

OSHA promptly began an investigation. Compliance Safety and Health Officers (CSHO) 

conducted an inspection at NPP’s premises on March 22, 2013, April 4, 2013, and on April 8, 

2013. 

NPP is insured by Tokio Marine & Nichido Fire Insurance Co., Ltd. (TMNF). On about 

March 22, 2013, Tokio Marine Management, Inc. (TMM), TMNF’s U.S. branch, was also 

notified of the fatality. On about March 27, 2013, Sierra Claims Services, LLC (Sierra), an 

independent claims adjuster, was retained by TMM to investigate the fatality. On March 28, 

2013, Diane Site, a Senior Adjuster at Sierra, sent an email to NPP’s Isabel Stewart, Subject: 
2 

Chris Rick, that listed 14 matters that she would be looking for during her upcoming visit to NPP 

on April 1, 2013. The list included a request that NPP obtain (among other things): 1) 

photographs of the forklift and warning signs; 2) maintenance records of the forklift; 3) 

statements from the forklift driver and other witnesses to the accident or its aftermath; and 4) 

copies of the OSHA, police, and coroner report. 

On September 16, 2013, OSHA issued two citations to NPP: one citation consisting of 

16 serious items with a proposed total penalty of $67,000 (Dkt. No. 13-1770) and one citation 

consisting of one other-than-serious item with no proposed penalty (Dkt. No. 13-1771). On 

about November 4, 2013, the matters were docketed at the Commission. On January 6, 2014, the 

Secretary filed his complaints and NPP filed its answers thereafter. 

On April 7, 2014, the Secretary applied to the Court for a subpoena duces tecum for 

documents and records in the possession of Sierra, including all material associated with the 

fatality and any investigation conducted by Sierra. The Court issued the requested subpoena 

duces tecum on April 8, 2014 to the Secretary. On April 15, 2014, the Secretary served the 

subpoena duces tecum upon Sierra, seeking the production of responsive materials by May 1, 

2014.

On April 25, 2014, NPP filed its Motion to Quash Secretary’s Subpoena Duces Tecum to 

Sierra Claim Services, LLC (Motion to Quash). NPP moved to quash the Secretary’s subpoena 

to Sierra because: 1) it called for the disclosure of privileged matter of NPP; 2) Sierra’s 

documents and records were prepared in anticipation that litigation would result from the 

fatality; and 3) the Secretary could not show the substantial need and undue hardship required to 

overcome the work product privilege. 

On May 9, 2014, the Secretary filed his Memorandum of Law in opposition to 
3 

Respondent’s Motion to Quash (Opposition). The Secretary asked that the Court deny the 

Motion to Quash because: 1) NPP had not met its burden of showing the subpoenaed documents 

are protected by the work product doctrine; 2) NPP lacked standing to quash a subpoena directed 

to a third party insurer, and 3) NPP’s motion to quash was untimely. 

On May 20, 2014, the Court issued an Order, providing that: 1) NPP would have the 

opportunity to provide the Secretary with a privilege log listing all of the documents contained 

within Sierra’s file that NPP asserted were protected from disclosure by privilege; 2) if the 

Secretary wished to challenge any assertion of privilege, the parties should meet and confer by 

June 13, 2014; 3) the parties were to jointly advise the Court by June 16, 2014, if there was any 

dispute and each party would be able to supplements its filings on the Motion to Quash by June 

20, 2014; 4) the Court would withhold making its final ruling on NPP’s Motion to Quash for the 

time being; and 5) the Secretary may leave open his Fed. R. Civ. P. 30(b)(6) deposition of NPP, 

originally scheduled for May 20, 2014, in order to address any limited issues arising from 

Sierra’s compliance with the subpoena. The Court also established April 1, 2013 – the day 

Sierra’s claims adjuster first visited NPP’s worksite – as a benchmark for when Sierra’s attention 

shifted from claims investigation towards potential litigation. 

The Court, at the Secretary’s request, extended the parties’ deadline to submit further 

briefing to June 27, 2014. The parties conferred by phone and e-mail, but were not able to reach 

a solution with respect to two materials: 1) the transcript of Sierra’s April 1, 2013 interview of 

Isaac Ravenell and 2) the return of fifteen photographs of the accident scene that had been 

disclosed by NPP to the Secretary. 

NPP withheld eight transcripts from recorded interviews Sierra conducted with NPP’s 

management and non-management personnel on April 1, April 2, and April 5, 2013. The 
4 

Secretary contends that while Mr. Ravenell’s April 1, 2013 interview transcript and the fifteen 

photographs may be work product, the Secretary has a substantial need for these materials that 

overrides any NPP’s work product qualified privilege. 

NPP contends that the Secretary cannot demonstrate a substantial need for the Ravenell 

interview transcript or that it will suffer undue hardship without the transcript because the 

Secretary: 1) can depose Mr. Ravenell, 2) can obtain equivalent information from other sources, 

and 3) must offer more than conclusory assertions of its need for the Ravenell interview 

transcript. 

The case is set for a hearing on September 9, 2014.

II. DISCUSSION 

The ordinary work product privilege is not absolute and must be balanced with the 

generally liberal rules of discovery.1 The work product privilege may be overcome: 1) upon a 

showing that the party seeking discovery has a substantial need of the materials in the 

preparation of the party’s case and 2) the party is unable, without undue hardship, to obtain the 

substantial equivalent of the materials by other means. Fed. R. Civ. P. 26(b)(3)(A)(ii). The work 

product privilege affords qualified protections to material prepared in anticipation of litigation. 

See U S. v. Adlman, 134 F.3d 1194, 1194-95, n. 1 (2d Cir. 1998). It allows a party to protect 

prepared legal theories and strategies “with an eye toward litigation,” free from intrusion by the 

adverse party. Id. at 1196 (quoting Hickman v. Taylor, 329 U.S. at 510-11; NLRB v. Sears, 

Roebuck & Co., 421 U.S. 132, 154 (1975) (work product privilege applies to documents 

prepared by an attorney in contemplation of litigation which set forth the attorney’s theory of the 

 

1 Hickman v. Taylor, 329 U.S. 495, 506 (1947) (“. . .[S]ince the discovery provisions are to be applied as broadly 

and liberally as possible, the privilege limitation must be restricted to its narrowest bounds.”); See also 29 C.F.R. § 

2200.52(b). (The scope of discovery in Commission matters “may concern any matter that is not privileged and 

that is relevant to the subject matter involved in the pending case.”) 
5 

case and his litigation strategy). The Commission has adopted a three-prong test to determine 

whether an item in question is considered work product under the privilege. This privilege 

applies when the material in question is shown to be: 1) documents or other tangible things; 2) 

prepared in anticipation of litigation or trial; and 3) gathered by or for a party or that party’s 

representative. Cont’l Oil, 9 BNA OSHC 1737, 1741 (No. 79-570, 1981). 

A secondary consideration is the difference between two types of work product: ordinary 

and opinion. Baker v. Gen. Motors Corp., 209 F.3d 1051, 1054 (8th Cir. 2000). Ordinary work 

product includes factual information. See In re Grand Jury Subpoena Dated July 6, 2005, 510 

F.3d 180, 183 (2d Cir. 2007) (finding that tape recordings can be discoverable fact work product 

after the government showed that the grand jury had a substantial need for the recordings and 

could not obtain the information through other means); In re John Doe Corp., 675 F.2d 482, 493 

(2d Cir. 1982) (finding that notes of interviewing attorney discoverable where the notes recited 

“in paraphrased, abbreviated form, statements” by an employee). Opinion work product includes 

counsel’s mental impressions, conclusions, opinions or legal theories. See Upjohn Co. v. U.S., 

449 U.S. 383, 399 (1981); Adlman, 134 F.3d at 1197. Opinion work product enjoys either 

absolute or near-absolute immunity and is only discoverable in rare circumstances, such as where 

the work contains evidence of fraud or illegal activities. See In Re Doe, 662 F.2d 1073, 1080 

(4th Cir. 1981) (opinion work product is not absolutely immune, but nearly so); St. Lawrence 

Food Corp., 21 BNA OSHC 1467, 1471 (consolidated) (No. 14-1734, 2006) (same). There is no 

evidence that the Ravenell interview transcript includes any notes or counsel opinion. 

A. Isaac Ravenell’s April 1, 2013 Interview Transcript 

The Secretary does not dispute that the transcript of the Mr. Ravenell’s interview is work 

product. The Court’s May 20, 2013 Order stated “there is sufficient evidence to identify April 1, 

2013, as an objective benchmark in the investigative process that indicates the point at which 
6 

Sierra ascertained sufficient information regarding the incident in order to turn its attention to 

potential litigation.” Order, at 10. Sierra’s interview of Mr. Ravenell took place on April 1, 

2013, the benchmark date in the May 20, 2013 Order. NPP states on its privilege log that the 

interview transcripts are material “prepared in anticipation of litigation” and that “Sierra 

conducted the interview[s] and created the transcript as part of its investigation to assess the 

scope of National Pipe’s potential liability to the decedent.”2

 NPP has a basis to assert that the 

Ravenell interview transcript is protected from disclosure under the work product doctrine. The 

Secretary does not dispute this and concedes that “because the Ravenell transcript is dated April 

1, consistent with Your Honor’s Order, the transcript was created by Sierra in anticipation of 

litigation and is, therefore, work product.” Secretary’s Supplemental Memorandum of Law in 

Opposition to Respondent’s Motion to Quash the Secretary’s Subpoena[sic] Duces Tecum to 

Sierra Claims Services, LLC dated June 27, 2014, at p. 3 (Opposition Supplement). The 

Secretary asserts that the Ravenell Interview Transcript is ordinary work product that is entitled 

only to qualified protection under the work product doctrine. Id. 

The Commission has found that “[fact] work product... is discoverable, but only if the 

party seeking the material ‘shows that it has substantial need for the materials to prepare its case 

and cannot, without undue hardship, obtain their substantial equivalent by other means’ ” 

Cranesville Aggregate Cos. 23 BNA OSHC 1570, 1572 (No. 09-0211, 2011) (consolidated) 

(quoting Fed. R.Civ.P. 26 (b)(3)(A)(ii)). 

The Secretary has demonstrated multiple attempts to contact, interview or depose Mr. 

Ravenell before requesting the transcript from NPP. To date, OSHA and the Secretary have 

been unable to contact Mr. Ravenell. OSHA’s CSHO Scott Schrilla arrived at NPP’s worksite in 

 

2

 NPP Privilege Log, filed May 30, 2014, at 2. 
7 

Vestal, NY at about 8:45 p.m., March 22, 2013.3 When CSHO Schrilla arrived he was unable to 

speak to Mr. Ravenell, who had been sent home.4 Mr. Ravenell was also unavailable on April 4, 

2013 and April 8, 2013 when CSHO Duane Gary conducted his inspections of NPP’s worksite.5 

Mr. Ravenell’s last day of work at NPP appears to have been on April 1, 2013. Mr. Ravenell 

was apparently fired from NPP sometime after the March 22, 2013 accident.6

 CSHO Gary 

obtained Mr. Ravenell’s phone number from NPP’s president and attempted to contact him.7

 

CSHO Gary attempted to call the phone number, but it was the wrong number.8

The Secretary has also made several attempts to locate Mr. Ravenell. The Secretary 

propounded interrogatories seeking the addresses and phone numbers for Mr. Ravenell and other 

NPP employees. The telephone number provided to the Secretary by Respondent, different than 

the one provided to CSHO Gary in July 2013, contained only nine digits, and was incomplete. 

On June 12, 2014, NPP’s counsel stated that the company did not have current contact 

information for Mr. Ravenell. However, the Respondent’s Supplemental Briefing to 

Respondent’s Motion to Quash Secretary’s Subpoena Duces Tecum to Sierra Claim Services, 

LLC (Motion to Quash Supplement) stated that “upon information and belief, [Mr.] Ravenell 

still resides in the Binghamton area.”9

 It is unclear what information NPP based this belief upon, 

particularly if it told the Secretary that it did not have current contact information for Mr. 

Ravenell. Finally, the Secretary has made several additional attempts to contact Mr. Ravenell 

through multiple phone numbers, physical addresses, and e-mail addresses that have been 

 

3

 CSHO Schrilla’s June 18, 2014 deposition states that he left his home in the Syracuse area within approximately 

10 minutes of receiving the call informing him about the accident. He arrived in the Binghamton area at 

approximately 8:45 p.m. Opposition Supplement at 6, n. 2. 

4

 Declaration of Scott Schrilla, dated June 25, 2014, at ¶ 9. 

5

 Declaration of Duane Gary, dated June 25, 2014, at ¶ 9. 

6

Id. at ¶ 10. 

7

Id. 

8

Id. at ¶¶ 11-12.

9

 Motion to Quash Supplement, dated June 27, 2014, at 4. 
8 

associated with him or his mother. 

The Ravenell interview transcript is apparently 30-40 pages long and is a verbatim 

transcript. The Respondent has presented no evidence to the contrary. Because the transcript is 

verbatim and contains no opinion or counsel thought processes, it may be characterized as 

ordinary work product. See, e.g., U.S. v. Clemens, 793 F. Supp. 2d 236, 255-256 (D.D.C. 2011) 

(finding that “silence” as to whether a transcript is verbatim or attorney notes fails to meet the 

burden of work product privilege); S.E.C. v. Treadway, 229 F.R.D. 454, 455 (S.D.N.Y. 2005) 

(distinguishing between interview notes and “verbatim transcripts that would be subject to 

discovery as witness statements”). As such, the transcript is discoverable upon a showing that the 

Secretary: 1) has a substantial need for the materials and 2) cannot, without undue hardship, 

obtain a substantial equivalent by other means. Fed. R. Civ. P. 26(b)(3)(A)(ii).

There is no bright-line test for what constitutes a showing of substantial need and undue 

burden. Cont’l Oil, 9 BNA OSHC at 1742 (“What constitutes a sufficient showing under Rule 

26 is difficult to pinpoint and depends on the facts of a given case”). The Commission 

“generally consider[s]: 1) the importance of the material; 2) the difficulty of obtaining the 

material from different sources; and 3) whether those different sources would supply the 

substantial equivalent of the material sought. Id. 

(1) Importance of the material 

Mr. Ravenell was the NPP employee who was operating the fork truck on March 22, 

2013, when Christopher Rick was struck and killed at NPP’s worksite. The Secretary claims that 

Ravenell interview transcript is important to his case because two of the OSHA citation items 

concern Mr. Ravenell’s specific conduct.10 Specifically, Citation 1, Item 7 alleges that Mr. 

 

10 Citation 1, Item 7 – 29 C.F.R. § 1910.178(n)(6) requires that a [power industrial truck] driver shall be required to 
9 

Ravenell failed to keep a clear view of the direction of travel as he operated the truck on March 

22, 2013; and Citation 1, Item 8 alleges that Mr. Ravenell was operating the fork truck without 

an operational back-up alarm on March 22, 2013.11 These two citation items arise directly from 

Mr. Ravenell’s operation of the fork truck, and it is clear that the Ravenell interview transcript 

may play an important role in the litigation and be “central to the substantive claims in 

litigation.” See Cont’l Oil, 9 BNA OSHC at 1742; Madanes v. Madanes, 199 F.R.D. 135, 150 

(S.D.N.Y. 2001) (finding substantial need shown where the information sought was “central to 

the substantive claims in litigation.”); Nat’l Congress for Puerto Rican Rights v. City of New 

York, 194 F.R.D. 105, 110 (S.D.N.Y. 2000) (“Because the information is directly probative on 

many of the issues in the case, plaintiffs have shown substantial need.”). Mr. Ravenell’s conduct 

on March 22, 2013 is central to Citation 1, Items 7 and 8. His recollection of the events would 

be directly probative on issues regarding these citation items. The information is clearly of 

importance to the Secretary and at least two of the citation items at issue. 

(2) Difficulty of obtaining the material through other means 

The Secretary must also prove undue hardship in obtaining the substantial equivalent of 

the transcript. 

[Undue hardship] does not mean that the movants must prove that obtaining the 

information elsewhere is absolutely impossible or that they must prove the required 

element beyond a reasonable doubt. All that is needed is a showing that it is likely to be 

significantly more difficult, time-consuming or expensive to obtain the information from 

another source than from the factual work product of the objecting party. 

Weiss v. Nat’l Westminster Bank, PLC, 242 F.R.D. 33, 67 (E.D.N.Y. 2007) (citing S.E.C. v. 

Thrasher, No. 92 CIV. 6987, 1995 WL 46681, *9 (S.D.N.Y. Feb. 7, 1995) (Magistrate decision), 

 

look in the direction of, and keep a clear view of the path of travel. 

11 Citation 1, Item 8 – 29 C.F.R. § 1910.178(p)(1) if at any time a powered industrial truck is found to be in need of 

repair, defective, or in any way unsafe, the truck shall be taken out of service until it has been restored to safe 

operating condition. 
10

aff’d, No. 92 CIV. 6987, 1995 WL 456402 (S.D.N.Y. Aug. 2, 1995). 

The easiest method for the Secretary to obtain the information that he desires would be to 

subpoena Mr. Ravenell for deposition. However, the Secretary is still not able to locate Mr. 

Ravenell and is unable to serve a subpoena upon him. The Secretary believes that the only other 

means is impractical: “having OSHA inspectors stake-out the half-dozen or so addresses 

associated with Mr. Ravenell over the last few years.”12

 This method still does not guarantee 

that the Secretary will be able to locate Mr. Ravenell. Requiring OSHA to stake-out Mr. 

Ravenell’s many reported addresses would be time-consuming, difficult, expensive and 

speculative. OSHA’s area office is over an hour’s drive13 from the Binghamton area and there 

are approximately a half-dozen addresses associated with Mr. Ravenell. This distance and 

number of potential addresses would likely require multiple trips or several employees to spend 

hours waiting around to see if Mr. Ravenell is associated with any of the addresses. This burden 

is unreasonable for the Secretary to undertake. 

The Secretary has made several attempts to get into contact with Mr. Ravenell and is still 

unable to locate him. To require OSHA to send out employees to stake-out potential addresses 

in the hopes of locating Mr. Ravenell is an undue burden. Under these circumstances, 

production of the Ravenell interview transcript has now been shown to be justified. See 

Hickman v. Taylor, 329 U.S. at 511-12 (“production may be justified where witnesses are no 

longer available or can be reached only with difficulty.”). 

(3) Whether the different means would supply the substantial equivalent of the material 

sought 

The Secretary does not believe that there is another source of information that would 

constitute the substantial equivalent of Mr. Ravenell’s interview transcript. See, e.g. Wheeling-

 

12 Opposition Supplement at 7. 

13 Opposition Supplement at 8. 
11

Pittsburg Steel Corp., 4 BNA OSHC 1578, 1579 (No. 10833, 1976) (finding that photographs 

that depict the scene and that cannot be retaken due to a probability that scene had changed do 

not have a substantial equivalent). Several cases have held that the unavailability of a witness 

satisfies the element that a party is unable to obtain the substantially equivalent information. 

See, e.g., Scurto v. Commonwealth Edison Co., No. 97 C 7508, 1999 WL 35311, at *2 (Jan. 11, 

1999 N.D. Ill.) (holding that parties may obtain fact work product “only in ‘rare situations’ such 

as those involving witness unavailability”); U.S. v. Davis, 131 F.R.D. 391, 395-96 (S.D.N.Y. 

1990) (finding statement discoverable where witness was “effectively unavailable” because in 

Greece); McNulty v. Bally’s Park Place, Inc., 120 F.R.D. 27, 30 (E.D. Pa. 1988) (finding 

statement from defendant’s employee discoverable where plaintiff’s efforts to reach witness 

were “unavailing”). The only other available statement from Mr. Ravenell is his statement to the 

police department on March 22, 2013. It is not substantially equivalent to the interview 

transcript. First, the statement is approximately 10 lines long,14 far less than the 30-40 page 

interview transcript that the Secretary seeks. Second, the response contains handwritten answers 

to only two questions, one of which is “describe the incident.”15

 Third, the statement does not 

address the functionality of the back-up alarm on the fork truck. Fourth, the statement was taken 

pursuant to a police investigation for criminal liability, which may emphasize matters that are 

different than the issues addressed by OSHA. Sierra’s interview of Mr. Ravenell was likely 

conducted with a focus on wrongful death or other civil litigation.16

 Finally, the Sierra interview 

was conducted on April 1, 2013, after OSHA’s first visit on March 22, 2013, and prior to 

OSHA’s April 4, 2013 scheduled visit. 

 

14 Opposition Supplement, Exhibit A. 

15 Id. 

16 Work product doctrine only applies to documents created with “an eye towards litigation.” See Adlman, 134 F.3d 

at 1196 (quoting Hickman v. Taylor, 329 U.S. at 510-11); St. Lawrence Food Corp., 21 BNA OSHC at 1470. 

(holding the same). If the April 1, 2013 interview of Mr. Ravenell was not conducted for this purpose, then the 

transcript would not be protected from disclosure by the work product privilege. 
12

 Neither the Secretary nor NPP has identified any eyewitness to the accident who can 

provide the substantial equivalent of the information that is expected to be in Mr. Ravenell’s 

lengthy interview transcript that was created within ten days of the accident when facts relevant 

to the accident were much more contemporaneous to Mr. Ravenell than today.17

 The Secretary 

has deposed six witnesses and none have been able to confirm or deny whether Mr. Ravenell was 

looking in the direction of travel prior to hitting Mr. Rick. Mr. Ravenell’s supervisor, who was 

working in close proximity, was unable to confirm or deny this as well. Additionally, none of 

the witnesses have been able to confirm or deny whether the backup alarm was functioning at the 

time of the accident, or whether Mr. Ravenell performed a pre-shift inspection of the alarm. The 

Secretary has demonstrated that there are no substantially equivalent means for the material 

sought because, most likely, Mr. Ravenell was best situated to provide the answers to the 

Secretary’s questions regarding Citation 1, Items 7 and 8. 

The Secretary has presented facts that the Court finds weigh in favor of the 

aforementioned factors and are sufficient to justify the discoverability of the Ravenell interview 

transcript. The Secretary has demonstrated a substantial need for Mr. Ravenell’s interview 

transcript.18 The verbatim transcript likely contains facts that are necessary to the Secretary’s 

 

17

 See Savoy v. Richard A. Carrier Trucking, Inc., 176 F.R.D. 10, 14 (D. Mass. 1997) (defendant’s offer to produce 

witness for deposition did not constitute substantial equivalent of information that might be contained in statement 

taken at time of accident).

18 The Secretary need not at this time prove the admissibility of the transcript into evidence at any upcoming trial. 

See Hickman v. Taylor, 329 U.S. at 511: 

Where relevant and non-privileged facts remain hidden in an attorney’s file and where production 

of those facts is essential to the preparation of one’s case, discovery may be had. Such written 

statements and documents might, under certain circumstances, be admissible in evidence or give 

clues as to the existence or location of relevant facts. Or they might be useful for purposes of 

impeachment or corroboration. And production might be justified where the witnesses are no 

longer available or can be reached only with difficulty. (emphasis added) 

See also 29 C.F.R. §2200.52(b) (“It is not ground for objection that the information or response sought will 

be inadmissible at the hearing, if the information or response appears reasonably calculated to lead to 

discovery of admissible evidence, regardless of which party has the burden of proof.”).
13

substantive claims, particularly Item 1, Citations 7 and 8. Repeated attempts to locate and 

contact Mr. Ravenell have been unsuccessful and no other witnesses have been able to provide 

the information sought by the Secretary. The Secretary has also demonstrated an undue burden 

for obtaining the information as well. The Court finds that the Secretary has been unable to 

interview or depose Mr. Ravenell or obtain information that is equivalent to the Ravenell 

interview transcript from other sources. 

B. Fifteen Photographs of the Accident Scene 

NPP produced fifteen black and white photographs of the accident scene that were taken 

by Sierra’s representative on April 1, 2013 to the Secretary on June 6, 2014.19

 NPP claims that 

these photographs were inadvertently disclosed to the Secretary on June 6, 2014 and has sought 

the return of these fifteen photographs from the Secretary under the work product doctrine. 20

 

NPP produced the 15 photographs as part of a 363-page production of “the portion of Sierra 

Claim Services, LLC’s investigation file of which no claim to privilege has been made.” 

Opposition Supplement at 10, n. 5. NPP originally identified the fifteen photographs as 

photographs NPP took. NPP informed the Secretary that the fifteen photographs were 

“duplicates” of photographs NPP had previously produced to the Secretary. NPP later told the 

Secretary that Sierra had taken the fifteen photographs after the Secretary sought color copies of 

the photographs from NPP. Id. NPP did not include the photographs in the original Privilege & 

Redaction Log on May 30, 2014. NPP identified the fifteen photographs as “photographs of the 

forklift accident scene” and asserted that they were protected from disclosure by the work 

product privilege in its Addition to Privilege and Redaction Log, dated June 5, 2014. First, the 

 

19 See Opposition Supplement, at 2. 

20 See The Addition to Privilege & Redaction Log, dated June 5, 2014, that asserts work product privilege as 

“Material Prepared in Anticipation of Litigation” with regard to the fifteen photographs. See also email from NPP’s 

counsel to the Secretary’s counsel, dated June 13, 2014, requesting the Secretary return or destroy the photographs. 

Opposition Supplement, at Exhibit B. NPP did not address its position on the fifteen photographs in its Motion to 

Quash Supplement. See discussion on waiver, infra, at 16. 
14

Court must decide whether the fifteen photographs qualify for protection from disclosure under 

the work product privilege. 

Photographs of an accident scene are typically not protected from production under the 

work product doctrine because they “fail to come within the categories of ‘mental impressions, 

conclusions, opinions, or legal theories of an attorney.’” Wheeling-Pittsburgh Steel Corp., 4 

BNA OSHC at 1579; Hamilton v. Great Lakes Dredge & Dock Co., No. 05 CIV. 3862, 2006 WL 

2086026, at *1 (E.D.N.Y. July 25, 2006) (photographs of an accident scene, taken immediately 

after an accident has occurred are not protected by work product); Hughes v. Groves, 47 F.R.D. 

52, 56 (W.D. Mo. 1969) (“[t]he weight of modern authority is that photographs are 

discoverable). Photographs that depict an accident scene and cannot be retaken are generally 

discoverable. See Hickman v. Taylor, 329 U.S. at 511; Wheeling-Pittsburgh Steel Corp., 4 BNA 

OSHC at 1579 (finding that photographs depicting the scene at issue that cannot be retaken due 

to a probability that the scene has changed are typically discoverable.). Accident Situs

photographs “are not properly part of the ‘work product’ of the lawyer.” Hughes v. Groves, 47 

F.R.D. at 56. 

CSHO Schrilla arrived to Binghamton area at approximately 8:45 p.m. on the night of 

March 22, 2013. Opposition Supplement at 6, n. 2. CSHO Schrilla took photographs of the 

accident scene, however these were taken sometime after 8:45 p.m. Declaration of Duane Gary, 

at ¶ 8. The fifteen photographs at issue are apparently of the work area and equipment as it 

existed at NPP at about the time of the accident.21 From March 22 until April 1, 2013, the 

accident scene was generally undisturbed other than the relocation of the industrial truck. 

Opposition Supplement at 11. On April 1, 2013, Sierra took photographs of the mostly 

 

21 No set of photographs are exactly as the work area existed at the time of the accident because Emergency Medical 

Services personnel requested that the industrial truck be moved when they arrived on the scene. Opposition 

Supplement at 11, n. 6. 
15

undisturbed accident site. Opposition Supplement at 11; Addition to Privilege & Redaction Log, 

dated June 5, 2014. The photographs taken by CSHO Schrilla during the evening of March 22, 

2013 are likely different than those taken by Sierra on April 1, 2013, presumably during daylight. 

CSHO Gary arrived at NPP thereafter on April 4, 2013. Opposition Supplement at 6, 9. The 

fifteen photographs contain no captions or any other information that reflect the mental 

impressions of NPP or their counsel. The Court finds that the fifteen photographs do not qualify 

as work product.22

NPP has claimed to the Secretary that the photographs were inadvertently disclosed to the 

Secretary and requested that they be returned or destroyed. If a party inadvertently discloses 

work product it is not considered a waiver of work product protection until any claim of privilege 

is resolved. See Fed. R. Civ. P. Rule 26(b)(5)(B); Scanlon v. Bricklayers & Allied Craftworkers, 

Local No. 3, 242 F.R.D. 238, 237 (W.D.N.Y. 2007) (finding that inadvertent disclosure of work 

product is not considered a waiver of work product privilege); U.S. v. Rigas, 281 F.Supp.2d 733, 

738 (S.D.N.Y. 2003) (holding the same). Inadvertent disclosure of work product does not apply 

here because the fifteen photographs are not protected from disclosure based upon the work 

product privilege. 

On June 5, 2014, NPP submitted its updated privilege log to the Secretary where it 

claimed a privilege and asserted that the fifteen photographs were “Material Prepared in 

Anticipation of Litigation.”23 Addition to Privilege & Redaction Log, dated June 5, 2014. 

Respondent did not address the issue of the return or destruction of the photographs in its Motion 

to Quash Supplement filed with the Court on June 27, 2014. It has not articulated in its Motion 

 

22 Even if the photographs were work product the Secretary has demonstrated a substantial need for them because 

the accident scene was different from how it existed on the evening of March 22 and April 1, and April 4, 2013 

when CSHO Gary returned to NPP. See Zoller v. Conoco, Inc., 137 F.R.D. 9, 10 (W.D. La. 1991) (photographs 

were discoverable because accident scene had changed dramatically since accident). 

23 A copy of the updated privilege log was also served upon the Court at that time by NPP. 
16

to Quash Supplement why a material prepared in anticipation of litigation privilege applies here, 

and the Court is aware only that NPP asserted in its updated privilege log that “Sierra created the 

photographs as part of its investigation to assess the scope of National Pipe’s potential liability 

for the forklift accident.” Id.

A showing that a privilege applies to each communication for which it is asserted is

required. U.S. v. Legal Servs. for N.Y.C., 249 F.3d 1077, 1082 (D.C. Cir. 2001). Further, the 

proponent of the privilege must establish the claimed privilege with “reasonable certainty.” In 

Re Subpoena Duces Tecum Issued to Commodity Futures Comm’n, 439 F.3d 740, 750-51 (D.C. 

Cir. 2006). Here, Respondent failed to carry its burden and did not address any privilege relating 

to the fifteen photographs in its Motion to Quash Supplement. The Court finds that NPP has 

waived and abandoned any claim of privilege relating to the fifteen photographs. See Georgia–

Pacific Corp., 15 BNA OSHC 1127, 1130 (No. 89-2713, 1991) (Issues not briefed are treated as 

waived or abandoned); Marmon Group, Inc., 11 BNA OSHC 2090, 2090, n. 1 (No. 79-5363, 

1984) (Commission declines to reach issues on which the aggrieved party indicates no interest.);

Thomas Industrial Coatings, Inc., No. 06-1542, 2009 WL 8581817, at * 16 (August 18, 2009) 

(O.S.H.R.C.A.L.J.) (“Issues not briefed are deemed waived.”). 

III. CONCLUSION 

For the aforementioned reasons, the Court concludes that Respondent’s Motion to Quash 

the Secretary’s Subpoena Duces Tecum to Sierra Claim Services, LLC, with regard to Mr. 

Ravenell’s April 1, 2013 interview transcript and the fifteen photographs is without merit to the 

extent indicated herein. 

IV. ORDER 

WHEREFORE IT IS ORDERED THAT Respondent’s Motion to Quash the Secretary’s 
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Subpoena Duces Tecum to Sierra Claim Services, LLC, is DENIED to the extent indicated 

herein; 

IT IS FURTHER ORDERED THAT Mr. Ravenell’s April 1, 2013 interview transcript 

shall be produced to the Secretary by July 23, 2014; 

IT IS FURTHER ORDERED THAT the fifteen photographs are not protected from 

disclosure by the work product privilege, Respondent shall produce color copies of these 

photographs by July 23, 2014 to the Secretary, and the fifteen photographs (either black and 

white or in color, or both) may be used by the Secretary during the course of this proceeding 

subject to the rules of evidence; and 

IT IS FURTHER ORDERED THAT the Secretary is not required to return to NPP or 

Sierra, sequester, or destroy any of these fifteen photographs that are in his possession. 

SO ORDERED. 

 /s/ 

 The Honorable Dennis L. Phillips 

 U.S. OSHRC Judge 

Dated: July 16, 2014 

 Washington, D.C.