LEGAL02/31204053v4

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, )

)

Complainant, )

)

v. ) Docket No. 08-1104

)

IMPERIAL SUGAR COMPANY; )

IMPERIAL-SAVANNAH, L.P. )

)

Respondents. )

)

REPLY IN SUPPORT OF RESPONDENTS’ MOTION

TO DEPOSE OSHA COMPLIANCE OFFICERS

1. Compliance Officer Testimony is Reasonably Calculated to Lead to Admissible

Evidence Regarding Industry Practice.

Notably absent from Complainant’s Response is any attempt to dispute the fact that

industry practice and knowledge regarding combustible dust hazards is central to the Secretary’s

case. Apparently recognizing that she cannot now distance herself from the countless admissions

that the Secretary has already relied, and intends in the future to rely, on evidence of industry

practice, the Secretary argues that Imperial should be precluded from gathering its own evidence

of industry practice because the Secretary does not like the way in which Imperial wishes to do

so. (Complainant’s Br., Paragraph II, Pages 5-9). Specifically, by making arguments regarding

the ultimate admissibility of such evidence more appropriate for a motion in limine than a

response to a motion seeking discovery, the Secretary contends, in essence, that better evidence

than the testimony of compliance officers must exist (without explaining what that evidence is)

and that the compliance officers that she selects to testify may not be those with the best

knowledge about the practice in this industry. (Id.). The Secretary’s arguments are wholly

without merit.
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Testimony from compliance officers regarding their recollection of inspections and the

circumstances perceived during said inspections has frequently been admitted by the

Commission as proof of industry practice and hazard recognition, and is thus undeniably

discoverable. See, e.g., Sec’y of Labor v. Trinity Indus., Inc., 15 O.S.H. Cas. (BNA) 1481, 1992

O.S.H.D. (CCH) ¶ 29582 (OSHRC 1992); Sec’y of Labor v. Lukens Steel Co., 10 O.S.H. Cas.

(BNA) 1115, 1981 O.S.H.D. (CCH) ¶ 25742 (OSHRC 1981); 29 C.F.R. § 2200.52(b) and Fed.

R. Civ. P. 26(b)(1). In fact, despite the Secretary’s claim to the contrary, (Complaint’s Br. at 6)

Review Commission precedent makes it quite clear that compliance officers may not only opine

about any hazards they encountered during inspections, but also whether the employer viewed

the condition as a hazard.1Sec’y of Labor v. Burkes Mech., Inc., 21 O.S.H. Cas. (BNA) 2136,

2007 O.S.H.D. (CCH) ¶ 32922 (OSHRC 2007) (“Indeed, both the compliance officer and a Gulf

States manager recognized that the conveyor posed a danger to those who cleaned up debris

while located in either of these areas”); Sec’y of Labor v. S&G Packaging Co., 19 O.S.H. Cas.

(BNA) 1503, 2001 O.S.H.D. (CCH) ¶ 32401 (OSHRC 2001) (“Additionally, CO Campbell

testified that Scott Garner, S&G’s plant manager, and Paul Wedyck, S&G’s safety manager, told

her during the investigation that they did not consider the rollers a hazard but admitted that they

were aware of the rollers’ unguarded condition”).

2

The Secretary now argues that, although Trinity Industries and Lukens Steel permitted

compliance officer testimony regarding industry practice, such holdings should be narrowly

1

Imperial repeats that it does not seek to obtain any privileged information during the depositions. (Complaint’s

Br. at 6-7). If the Secretary prefers not to explain why she did not issue any citations for what would appear to be

hazardous conditions, she is certainly free to do so.

2

See also Sec’y of Labor v. Rockwell Int’l Corp., 17 O.S.H. Cas. (BNA) 1801, 1995-1997 O.S.H.D. (CCH) ¶ 31150

(OSHRC 1996) (“. . . the compliance officers concluded that the ramp also posed a fall hazard”); Sec’y of Labor v.

Miniature Nut & Screw Corp., 17 O.S.H. Cas. (BNA) 1557, 1995-1997 O.S.H.D. (CCH) ¶ 30986 (OSHRC 1996)

(“The compliance officer hypothesized that MiniNut’s operator was exposed to the hazard posed by this condition”);

Sec’y of Labor v. August Winter & Sons, Inc., 21 O.S.H. Cas. (BNA) 1381 (OSHRC ALJ 2005) (“Finally, CO

Bubolz testified that although the load poses a hazard, should the excavator’s hydraulics fail, the whole arm could

jerk and catch Fezatte against the excavation wall, or it could fall and crush him”).
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limited to cases involving personal protective equipment and to cases in which the Secretary, as

opposed to the employer, wants to use the testimony. (See Complainant’s Br. at 7-8). As the

Commission’s rules make clear, however, “[i]t 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 the discovery of admissible evidence, regardless of which party

has the burden of proof.” 29 C.F.R. § 2200.52(b) (emphasis added). Indeed, the Commission

frequently considers evidence of industry practice submitted by both the Secretary and

employers alike, further demonstrating that the use of the testimony in question should not be

narrowly limited as the Secretary urges. See, e.g., Sec’y of Labor v. Brooks Well Servicing, 20

O.S.H. Cas. (BNA) 1286, 2002 O.S.H.D. (CCH) ¶ 32,675 (OSHRC 2003) (considering

testimony of industry practice relating to exit routes from both the Secretary and the employer,

and ultimately agreeing with the employer’s position on industry practice).

Second, the Secretary takes issue with the fact that Imperial seeks to depose individual

compliance officers “concerning the conditions at diverse inspection sites,” stating that this

“does not necessarily result in Complainant producing persons with particular industry

knowledge or experience.” (Complainant’s Br. at 8-9). The Secretary’s contention that the

compliance officers might not have sufficient experience to testify regarding industry practice as

a whole is, at best, an argument regarding ultimate admissibility of the testimony and does not

provide a basis for denying discovery.3See 29 C.F.R. § 2200.52(b). Testimony of individual

compliance officers regarding the conditions perceived at individual inspection sites, even if not

3

Complainant’s attempt to preclude Imperial from discovering facts by proffering arguments regarding the ultimate

admissibility of the evidence is improper. See 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...”). Rather, 29 CFR 2200.52(b) allows for the

discovery of “any matter that is not privileged and that is relevant to the subject matter involved in the pending

case.” Moreover, it is notable that Complainant did not argue in her response that any of the appropriate reasons for

limiting discovery -- duplicativeness, burdensomeness, or ample opportunity to obtain the information elsewhere --

exist in this case. See 29 C.F.R. 2200.52(c)
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admissible as offensive evidence of broad-based industry recognition, would certainly be

admissible to rebut contradictory evidence of industry custom that will undoubtedly be presented

by the Secretary. Further, Imperial must secure this testimony by deposition because most of the

witnesses are outside Commission’s subpoena power for a hearing.

2. Complainant’s Attempt to Recast this Stated Reason for the Depositions is Without

Merit.

The Secretary’s only other argument for precluding Imperial from obtaining discovery on

industry practice is her unsubstantiated allegation that Imperial has misrepresented its true

purpose for wanting the requested discovery.4(Complainant’s Br. at 3). Imperial made clear in

its opening Memorandum that “through these depositions, Imperial seeks information relating to

industry practice.” (Imperial Br. at 1). Indeed, Imperial attached its Rule 30(b)(6) Notice that

lists its specific areas of inquiry. Imperial’s plan to inquire regarding the identities of the

employees who conducted inspections and participated in the issuance of citations is clearly

relevant given the Secretary’s emphasis on the importance of a compliance officer’s “hands on

involvement” with industry conditions when determining ultimate admissibility of testimony on

industry practice. (Complainant’s Br. at 8). Nonetheless, having recast Imperial’s discovery

plan as a covert effort to seek only information regarding OSHA’s enforcement of standards

(Complainant’s Br. at 3), the Secretary then attempts to persuade the Commission that

4 The Secretary’s offer to stipulate authenticity of the files is inadequate. (Complainant’s Br. at 2, 5-6). First, the

Secretary cannot authenticate the files of the non-party, state-plan agencies. See Fed. R. Evid. 901. Moreover,

absent clarifying testimony relating to the facts observed, the files may not be admissible even if authenticated, or

even if admissible may not be reliable. See, e.g., Sec’y of Labor v. Brooks Well Servicing, Inc., 2000 OSHD (CCH)

¶ 32,164 (OSHRC ALJ 2000), rev’d on other grounds, 20 O.S.H. Cas. (BNA) 1286 (OSHRC 2003) (out of court

statements contained in OSHA 1-B form rejected because they did not fall into the hearsay exception); Sec’y of

Labor v. MJP Constr. Co., 1999 O.S.H.D. (CCH) ¶ 32018, n.20 (OSHRC ALJ 2000) aff’d 19 O.S.H. Cas. (BNA)

1638 (OSHRC 2001) (“The CO testified that his OSHA 1B, which showed only one ironworker, was in error, and

that there were about 20 ironworkers on the deck”); Sec’y of Labor v. J.E. Amorello, Inc., OSHRC 06-0834, 2007

WL 4618449 (OSHRC Aug. 30, 2007) (noting that “[p]hotographs provided by the compliance officer [were]

inconclusive” because they “show[ed] the backhoe spanning the trench, but does not clearly depict whether it was

located in a manner which rendered the ramp inaccessible” and thus relying on witness testimony). Further, absent

extraordinary circumstances, a party “is entitled to prove its case free from any [party’s] option to stipulate the

evidence away.” Cf. Old Chief v. United States, 519 U.S. 172, 189 (1997).
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enforcement evidence does not bear upon the issue of industry practice and is not otherwise

relevant (Complainant’s Br. at 4-5)

Imperial does not concede that OSHA’s pattern of enforcement is unrelated to either the

issue of industry custom or the ultimate viability of the citations and violation classifications in

this action. L.R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664, 676 (D.C. Cir. 1982). Even

assuming arguendo that evidence regarding OSHA’s enforcement of the standards is not

relevant, the goal of the depositions at issue here is to elicit testimony regarding the actual

condition of the various inspection sites, as observed by the compliance officers. As such, the

cases cited by Complainant in Section I of her brief regarding the admissibility of OSHA’s

enforcement track record at a single employer site are entirely inapplicable. (Complainant’s Br.

at 4-5).

Accordingly, Imperial respectfully requests that the Commission grant its Motion to

Depose OSHA Compliance Officers.

Respectfully submitted this 26th day of March 2009.

/s/ Charles H. Morgan

Charles H. Morgan

charlie.morgan@alston.com

Matthew J. Gilligan

matt.gilligan@alston.com

Ashley D. Brightwell

ashley.brightwell@alston.com

Jeremy D. Tucker

jeremy.tucker@alston.com

ALSTON & BIRD LLP

1201 West Peachtree Street

Atlanta, Georgia 30309-3424

(404) 881-7000

(404) 253-8757

Attorneys for Respondents
LEGAL02/31204053v4

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, )

)

Complainant )

)

v. ) 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 in this action

may be served and filed electronically. I further certify that a copy of REPLY IN SUPPORT OF

RESPONDENTS’ MOTION TO DEPOSE OSHA COMPLIANCE OFFICERS was

electronically served on March 26, 2009 on the following counsel for Complainant:

Karen E. Mock

Mock.Karen@dol.gov

Angela F. Donaldson

Donaldson.Angela@dol.gov

Office of the Solicitor

U.S. Department of Labor

61 Forsyth Street S.W.

Room 7T10

Atlanta, Georgia 30303

/s/ Charles H. Morgan

Charles H. Morgan

Alston & Bird LLP

1201 West Peachtree Street

Atlanta, Georgia 30309-3424

charlie.morgan@alston.com