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 RE: RESPONDENT’S MOTION TO QUASH SECRETARY’S 

SUBPOENA DUCES TECUM TO SIERRA CLAIM SERVICES, LLC

I. FACTS

 On March 22, 2013, Mr. Chris Rick was allegedly fatally injured by a Sellick powered 

industrial truck operated by a National Pipe and Plastics, Inc. (NPP) employee in a yard at 

Respondent’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 commenced an investigation. NPP is insured by Tokio Marine & Nichido Fire 

Insurance Co., Ltd. (U.S. Branch) (TMNF) for matters relating to the fatality. On about March 

22, 2013, Tokio Marine Management, Inc. (TMM), on behalf of TMNF, was also notified of the 

fatality. 

 In an affidavit dated April 21, 2014, Mr. Mark J. Fitzgerald , Supervising Senior 

Litigation Specialist, Special Liability Unit (Fitzgerald Affidavit), at TMM, stated that: 

since the claim involved a death, TMM formed a reasonable belief upon first notice of 

this loss [March 22, 2013] that litigation would be commenced against TMNF’s insured 

NPP. Accordingly, a decision was made to immediately investigate the facts and 

 circumstances surrounding the death of Christopher Rick so that the interests of NPP 

 would be protected in the inevitable event of a lawsuit against it. ... 

 
Its [Sierra’s] investigation was limited to issues relating to the forklift fatality and 

 undertaken in anticipation of litigation. 

 On about March 27, 2013, Sierra Claims Services, LLC (Sierra), an independent claims 

adjuster, was retained to investigate the fatality by TMM. On March 28, 2013, Diane Site, a 

Senior Adjuster at Sierra, sent an email message to NPP’s Isabel Stewart, Subject: Chris Rick, 

that included a basic list of 14 matters she was looking for during her upcoming visit to NPP 

scheduled for Monday, 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 reports. 

 On September 16, 2013, OSHA issued several citations to NPP, at least two of which 

related to the fatality. On September 27, 2013, NPP contested the citations. 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 materials 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’s Motion to Quash included a 

Memorandum of Law and affidavits by: 1) David Culbertson, NPP’s President, 2) Robert 

Manganelli, Principal Partner and Member of Sierra, 3) Mark J. Fitzgerald, and 4) Leslie P. Guy, 
Esq., NPP’s counsel. NPP moves to quash the Secretary’s subpoena to Sierra because: 1) NPP 

has standing to do so based on privilege, 2) Sierra’s documents and records were prepared in 

anticipation that litigation would result from the fatality, and 3) the Secretary cannot show the 

substantial need and undue hardship required to overcome the work product privilege.1 

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

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

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

protected by the work product doctrine, 2) NPP lacks standing to quash a subpoena directed to a 

third party insurer, and 3) NPP’s motion to quash is untimely; i.e. it was filed a day late with the 

Court through a personal delivery that occurred on or after April 25, 2014 by a federal express

mailing sent on April 24, 2014, instead of by a United States mailing sent on April 24, 2014.2

Discovery is ongoing and closes on August 15, 2014. A trial in these matters is 

scheduled to commence on September 9, 2014. 

II. DISCUSSION

The Court will address the standing and timeliness issues first. 

 A party generally lacks standing to challenge a subpoena served on a third party.3 A 

party may challenge a subpoena served on a third party if the challenge is based on privilege. 

See W. Coast Prods. Inc. v. Doe, 275 F.R.D. 9, 16 (D.C. Cir. 2011); Lee Way Motor Freight, 

Inc., 3 BNA OSHC 1843, 1846 (No. 7674, 1975) (parties lack standing to attack subpoena 

directed to third party, “except when privileged matter of the movant would be disclosed.”). 

1 NPP included in its Motion to Quash an email between NPP and Sierra that NPP says “prompted Sierra’s 

investigation” for in camera review by the Court. It asserts that the email “tells NPP that Sierra is performing its 

investigation to protect NPP’s interest,” includes an analysis by Sierra of “NPP’s potential liability for the forklift 

fatality” and “provides direction to NPP if a claim or lawsuit is commenced.” 2 The Secretary also seeks Court permission to leave open his Fed. R. Civ. P. 30(b)(6) deposition of NPP, scheduled 

for May 20, 2014, in order to address any limited issues arising from Sierra’s compliance with the subpoena. 

3 See Vogue Instruments Corp. v. Lem Instruments Corp, 41 F.R.D. 346 (S.D.N.Y. 1967). 

 
Here, NPP alleges that the subpoena to Sierra calls for the disclosure of NPP’s privilegedprotected material. The Court finds that NPP has standing to move to quash the subpoena to 

Sierra. 

The Secretary’s timeliness objection is also rejected. The Secretary served the subpoena 

upon Sierra on April 15, 2014 by certified mail. The Secretary’s letter dated April 15, 2014 

accompanying the subpoena also shows that a copy of the subpoena was sent to NPP’s counsel 

by U.S. Mail. Sierra received the subpoena on April 17, 2014. Commission rules require any 

person served with a subpoena to move to revoke or modify the subpoena within 5 days after 

service if the person does not intend to comply. See 29 C.F.R. § 2200.57(c). Where a response 

is required in less than 11 days, weekends and holidays are excluded per 29 C.F.R. § 2200.4(a). 

Accordingly, Sierra was required to file its motion to quash by April 24, 2014. 

 The record does not show precisely when NPP received its copy of Sierra’s subpoena. 

When service is made by mail a separate period of 3 days is allowed, in addition to the 

prescribed period of 5 days per 29 C.F.R. § 2200.4(b). Since service upon NPP was made by 

U.S. mail on April 15, 2014, NPP’s motion to quash was due to be filed with the Court by April 

25, 2014. 

 NPP sent out its Motion to Quash by federal express on April 24, 2014.4

 The Court 

received the Motion to Quash on April 25, 2014. Pursuant to Commission rules, service by an 

overnight delivery service is deemed effected at the time of personal delivery. Additionally, the 

Court finds there has been no prejudice shown to the Secretary by virtue of NPP sending out its 

Motion to Quash by federal express on April 24, 2014, or the Court receiving it on April 25, 

2014. The Court finds that there has not been any “undue delay” in NPP filing its Motion to 

4 See Certificate of Service by NPP’s counsel certifying that a copy of the Motion to Quash was served upon the 

Secretary on April 24, 2014 via federal express.

 
Quash as alleged by the Secretary and the Court is unwilling to deny NPP’s Motion to Quash for 

lack of timeliness as requested by the Secretary. 

The Secretary also argues that NPP has not met its burden of showing the subpoenaed 

documents are protected by the work product doctrine. Specifically, the Secretary asserts that 

NPP has not identified the documents over which it asserts work-protection protection and is 

unable to protect Sierra’s entire claims file. The Secretary asserts that NPP has failed to catalog 

the documents for which it seeks work-product protection by either submitting all of them to the 

Court for in camera review and/or by identifying all of them on a privilege log served upon the 

Secretary and filed with the Court. The Secretary also asserts that NPP has not shown that all 

responsive documents allegedly protected by privilege were created because of the prospect of 

litigation. He argues that NPP’s affidavits accompanying its Motion to Quash are not specific 

and competent proof that the entirety of Sierra’s claim file was prepared because of the prospect 

of litigation. The Secretary asserts that NPP’s affidavits do not adequately “identify the point 

which their work crossed the line between ordinary claim investigation and anticipation of 

litigation.” He further asserts that at least some of the documents in Sierra’s claim file were

prepared in the ordinary course of business, include public documents such as police and autopsy 

reports, and include documents that NPP provided to Sierra, such as forklift maintenance 

records. Lastly, the Secretary asserts that NPP has waived any claim of work-product protection 

with respect to any documents NPP provided to Sierra since NPP failed to submit a privilege log 

to the Secretary.

The Federal Rules of Civil Procedure provide for broad discovery. “Parties may obtain 

discovery regarding any nonprivileged matter that is relevant to any party’s claim, or defense – 

including the existence, description, nature, custody, condition, and location of any documents or 
other tangible things and the identity and location of persons who know of any discoverable 

matter.” 5

 Fed. R. Civ. P. 26(b)(1). The rules, however, endeavor to also “preserve a zone of 

privacy in which lawyers, insurers, and other representations of litigants may develop legal 

theories and strategies uninhibited by the possibility that an adversary may become privy to the 

resulting documents, by protecting certain work product prepared for the litigation.” U. S. v. 

Adlman, 134 F.3d 1194, 1196 (2nd Cir. 1998). Fed. R. Civ. P. 26(b)(3) provides that “Ordinary, 

a party may not discover documents and tangle things that are prepared in anticipation of 

litigation or for trial by or for another party or its representative (including the other party’s 

attorney, consultant, surety, indemnitor, insurer, or agent).” 

In order to be protected as work product, NPP must show that the materials: 1) must be 

documents or tangible things, including an attorney’s mental impressions, conclusions, opinions 

or legal theories, 2) were prepared in anticipation of litigation or trial, and 3) were prepared or 

gathered by or for a party, or by or for its representative. United Coal Companies v. Powell 

Constr. Co., 839 F.2d 958, 966 (3d Cir. 1998), Cranesville Aggregate Cos., 21 BNA OSHC 

1570 (No. 09-2011, 2011). Documents prepared in anticipation of litigation are those that “can 

fairly be said to have been prepared or obtained because of the prospect of litigation.”6

 Adlman, 

134 F.3d at 1202 (emphasis in original). Such a determination is necessarily fact-specific. 

Courts are cautioned not to hold that all documents in an insurer’s file are protected by work 

product privilege because of a party’s “ritualistic incantation” that all documents created by 

insurers are made in preparation for litigation. American Ins. Co. v. Elgot Sales Corp., 97 Civ. 

1327(RLC) 1998 WL 647206, at * 1 (S.D.N.Y. Sept. 21, 1998) (discussing need for limiting 

5 A nonparty too may be compelled to produce documents and tangible things. See Fed. R. Civ. P. 34(c). 6 “Prospect of Litigation” means that the lawyer or party’s representative must at least have had a subjective belief 

that litigation was a real possibility, and that belief must have been objectively reasonable. EEOC v. Lutheran 

Social Serv., 186 F.3d 959, 968 (D.C. Cir. 1999). 

 
principle to avoid allowing an insurer’s entire file to be exempt from discovery.) A party 

withholding insurance documents must establish that the author of the document anticipated

litigation at the time that the document was created, and would not have created the document in 

essentially the same way had the prospect of litigation not existed. See Weber v. Paduano, No. 

02 Civ. 3392(GEL), 2003 WL 161340, at **4, 6 (S.D.N.Y. Jan. 22, 2003) (party asserting the 

work product privilege has the “burden of demonstrating, by specific evidence, that each 

document [contained in an insurer’s file] was prepared in anticipation of litigation.”). The party 

seeking to withhold insurance documents may not simply rest on conclusory assertions that the 

work product privilege protects all of the documents in an insurer’s file from disclosure. See Id., 

Condon v. Stephan Machinery Corp., No. 90 Civ. 0283 (PKL), 1990 WL 311599, at *2 

(S.D.N.Y. June 18, 1990) (Blanket assertions of work product protection as to entire files, rather 

than specific documents, are never sufficient to prevent discovery, since the party opposing 

discovery must establish that each document is work product.). Documents consisting of factual 

materials and analyses of facts may not be protected by the work product privilege. See Upjohn 

Co. v. U.S., 449 U.S. 383, 398-401 (1981), Weber, 2003 WL 161340, at * 5.7

 Conversely, 

documents containing mental impressions of a party’s or insurer’s attorneys, or an insurer’s 

internal strategy as to how to handle any potential litigation arising from the underlying incident 

constitute a “core” of materials that are most likely protected by the work product doctrine.8

The Court agrees with the Secretary that NPP has not sufficiently identified the 

documents over which it asserts work-protection protection. NPP has failed to catalog the 

documents for which it seeks work-product protection by either submitting all of them to the 

7 See e.g. Wheeling-Pittsburgh Steel Corp., 4 BNA OSHC 1578, 1579 (No. 10833, 1976) (Photographs depicting the 

scene at issue that cannot be retaken due to a probability that the scene has changed are typically discoverable.). 8 Attorney opinion work product, including recommendations, is virtually undiscoverable. See U.S. v. Deloitte, LLP, 

610 F.3d 129, 135 (D.C. Cir. 2010).

 
Court for in camera review and/or by identifying all of them on a privilege log served upon the 

Secretary and filed with the Court. NPP has not shown that all responsive documents that are 

included within Sierra’s file, allegedly protected by the work product privilege, were created 

because of the prospect of litigation. The Court is unwilling to find Sierra’s entire file exempt 

from discovery. 

Generally, a party is obligated to provide a privilege log for documents withheld based 

upon privilege that are within its possession, custody and/or control. A party generally does not 

have to log those documents that it does not possess, have in its custody, or exercise any power 

of control. Arkwright Mutual Ins. Co. v. National Union Fire Ins., No. 90 Civ. 7811(AGS), 1994 

WL 510043, at * 15 (S.D.N.Y. Sept. 16, 1994). Both parties and nonparties withholding 

subpoenaed information under a claim that it is privileged must expressly make the claim of 

privilege and describe the nature of the withheld documents, communications, or tangible things 

in a manner that, without revealing information itself privileged or protected will enable the 

parties to assess the claim. See Fed. R. Civ. P. 26(b)(5), 45(e)(2). Here, neither NPP or Sierra 

has produced any privilege log listing documents in Sierra’s file withheld due to privilege. 

Based upon the information before it, the Court is unable to make a determination with 

regard to any document that may be contained within Sierra’s file where the author of the 

document anticipated litigation at the time that the document was created, and would not have 

created the document in essentially the same way had the prospect of litigation not existed. The 

Court will, however, provide NPP with the opportunity by May 30, 2014 to provide the Secretary 

with a privilege log listing all of the documents contained with Sierra’s file that NPP asserts are 

protected from disclosure by privilege.9

 See Weber, 2003 WL 161340, at * 5 (Defendants 

9 NPP shall also file a copy of its privilege log with the Court by May 30, 2014 and insure that it is received by the 

Court by that date.

 
provided plaintiff with privilege logs identifying the different documents maintained in a 

defendant’s insurer’s liability file.). 

In the event NPP is unable to provide the Secretary and the Court with such a privilege 

log by May 30, 2014, then the Court will find that NPP and/or Sierra have not proffered 

sufficient evidence to demonstrate that the documents in Sierra’s file(s) are protected from 

disclosure by work product privilege and the Court will deny NPP’s Motion to Quash. In the 

event a privilege log is produced and the Secretary wishes to challenge the assertion of any 

privilege, the parties shall meet and confer by June 13, 2014 in order to attempt to resolve any 

dispute as to privilege. The parties shall jointly advise the Court by June 16, 2014, should any 

dispute remain and each party may supplement its filings, with regard to the Motion to Quash by 

June 20, 2014. The supplements may include the submission of affidavits by authors of 

privileged documents addressing whether or not: a) they anticipated litigation at the time that the 

documents were created, and b) the documents would have been created in essentially the same 

way had the prospect of litigation not existed.

The Secretary asserts that NPP’s affidavits do not adequately identify the point which 

Sierra’s work crossed the line between ordinary claim investigation and anticipation of litigation. 

The Court does not agree. This case involves a forklift fatality where OSHA launched its 

investigation on March 22, 2013, the day the incident occurred. NPP was ultimately charged 

with violating the standards at 29 C.F.R. § 1910.178(p)(1), operating an industrial truck without 

a functional backup alarm, and 29 C.F.R. 1910.178(n)(6), employee operating a powered 

industrial truck did not look in the direction of travel. TMM’s Fitzgerald’s affidavit states that 

“[o]n or about March 27, 2013 Sierra was retained to investigate this matter in anticipation of 

and in contemplation of litigation against NPP.” Similarly, Sierra’s Mr. Manganelli states in his 
affidavit that Sierra was retained on behalf of TMM on about March 28, 2013 to investigate the 

fatality “in anticipation of and in contemplation of litigation against NPP.” On April 1, 2013, 

Ms. Siti, Sierra’s claims adjuster, visited the incident site to obtain material related to the 

incident and commence her investigation. The Court finds that there is sufficient evidence to 

identify April 1, 2013 as an objective benchmark in the investigative process that indicates the 

point at which Sierra ascertained sufficient information regarding the incident in order to turn its 

attention to potential litigation. By that date, there should have been enough evidence before 

Sierra for, at least, some of its employees to reasonably conclude that NPP was likely exposed to 

some liability and litigation could reasonably be anticipated and contemplated. 

The Court agrees with the Secretary that NPP has waived any claim of work-product 

protection with respect to any documents that are in or under NPP’s possession, custody, or 

control that were provided by NPP to Sierra since NPP has failed to submit a privilege log to the 

Secretary showing these, and apparently any other withheld privilege protected documents. See

Honda Lease Trust v. Middlesex Mut. Assur. Co., No. 3:05 CV1426 (RNC), 2008 WL 349239, at 

*3 (D. Conn. Feb 6, 2008) (“[f]ailure to produce a privilege log is sufficient grounds to deem the 

[work product privilege] waived.”). NPP has not waived the work product privilege by failing to 

provide a privilege log identifying any documents that are contained within Sierra’s file(s). See 

Arkwright, 1994 WL 510043, at * 15 (A party does not have to log those documents that it does 

not have the power to produce itself, since it may not be compelled to produce them.). 

III. CONCLUSION

The Court is unable to make a determination with regard to any document that may be 

contained within Sierra’s file where the author of the document anticipated litigation at the time 

that the document was created, and would not have created the document in essentially the same 
way had the prospect of litigation not existed. 

IV. ORDER

Having considered NPP’s Motion to Quash and the Secretary’s Opposition thereto, the 

Court ORDERS THE FOLLOWING: 

1) NPP shall have the opportunity by May 30, 2014 to provide the Secretary with a 

privilege log listing all of the documents contained with Sierra’s file that NPP asserts are 

protected from disclosure by privilege;10 

2) In the event a privilege log is produced and the Secretary wishes to challenge the 

assertion of any privilege, the parties shall meet and confer by June 13, 2014 in order to attempt 

to resolve any dispute as to privilege; 

3) The parties shall jointly advise the Court by June 16, 2014, should any dispute remain 

and each party may supplement its filings, with regard to the Motion to Quash by June 20, 2014; 

4) Consistent with the above, the Court will 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, 

scheduled for May 20, 2014, in order to address any limited issues arising from Sierra’s 

compliance with the subpoena. 

SO ORDERED.

 /s/ 

 The Honorable Dennis L. Phillips

 U.S. OSHRC Judge

10 NPP shall also file a copy of its privilege log with the Court by May 30, 2014 and insure that it is received by the 

Court by that date; or advise the Court and the Secretary that it is not submitting and filing a privilege log for 

documents in Sierra’s file(s). 

 
Date: May 20, 2014 

 Washington, D.C.