United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building - Room 2R90, 100 Alabama Street, S.W.

Atlanta, Georgia 30303-3104

atlantaoshrcjudges@oshrc.gov

Secretary of Labor,

 Complainant

 v. OSHRC Docket No.: 15-1673

Tarkett Alabama, Inc.

 Respondent.

Order Denying Respondent’s Motion in Limine 

Before me is Respondent’s Motion in Limine to Exclude Evidence. In it, Respondent 

seeks to preclude the Secretary from presenting certain evidence during the hearing in this 

matter. Because Respondent’s Motion is without support, it is DENIED.

1 

In its Motion, Respondent seeks to exclude two types of evidence from the hearing. 

Respondent seeks to exclude “Any evidence that the Secretary may attempt to introduce at the 

hearing” that is either additional or contradictory to testimony provided by Compliance Safety 

and Health Officer (CSHO) Jennifer McWilliams during a deposition taken pursuant to Fed. R. 

Civ. P. 30(b)(6). Respondent also seeks to have excluded evidence “offered from unidentified 

individuals.” Respondent argues such evidence is inadmissible hearsay. Based on the posture of 

the case and the information submitted by Respondent, I disagree a ruling on admissibility of 

either is appropriate at this time.

In its motion, Respondent asserts during the discovery phase of this case it noticed a 

deposition pursuant to Fed. R. Civ. P. 30(b)(6). Rule 30(b)(6) allows a party to name as a 

deponent a corporation, partnership, association, government agency, or other entity for 

deposition on specified factual matters. The named entity is required under the rule to then 

designate one or more “agents” to testify on its behalf. The notice of deposition specified the 

 

1 Commission Rule 40(c) allows the judge to rule on procedural motions prior to the expiration of the 10-

day response period. I also find it appropriate to rule on a motion prior to receipt of the opposing party’s 

response if, as here, the motion on its face lacks merit.
2 

information sought was the facts related to the inspection and in support of the citations in this 

matter. The Secretary designated CSHO McWilliams and Respondent took her deposition on 

February 9, 2016.2 Respondent contends the Secretary is “prohibited” from introducing 

evidence at the hearing that contradicts or expands on the testimony provided by CSHO 

McWilliams during this deposition. Respondent is incorrect. 

The purpose of Fed. R. Civ. P. 30(b)(6) was to "reduce the difficulties now encountered 

in determining, prior to the taking of a deposition, whether a particular employee or agent is a 

‘managing agent.'" See Fed. R. Civ. P. 30(b)(6) Advisory Committee's Note (1970). The rule 

was also intended to "curb the ‘bandying' by which officers or managing agents of a corporation 

are deposed in turn but each disclaims knowledge of facts that are clearly known to persons in 

the organization." Id. Although statements provided during a Rule 30(b)(6) deposition are 

binding on a party in the sense such statements are admissible against it, they are not binding in 

the sense the party is forbidden from presenting contradictory evidence. See AstenJohnson, Inc. 

v. Columbia Casualty Co., 562 F.3d 213, 229 (3d Cir. 2009); A.I. Credit Corp. v. Legion Ins. 

Co., 265 F.3d 630, 637 (7th Cir. 2001); and R & B Appliance Parts, Inc. v. Amana Co., L.P. 258 

F.3d 783, 786 (8th Cir. 2001). As the court noted in U.S. v. Taylor, 166 F.R.D. 356, 362 n. 6 

(N.D.N.C. 1996), a case cited by Respondent, 

When the Court indicates that the Rule 30(b)(6) designee gives a statement or 

opinion binding on the corporation, this does not mean that said statement is 

tantamount to a judicial admission. Rather, just as in the deposition of individuals, 

it is only a statement of the corporate person which, if altered, may be explained 

and explored through cross-examination as to why the opinion or statement was 

altered. 

The district court case law relied upon by Respondent is both non-binding precedent and, 

more importantly, inapposite. For example, Sabre v. First Dominion Capital, LLC, 2001 WL 

1590544 (S.D.N.Y. 2001), addresses only whether an individual designated as a corporate 

representative for purposes of a Rule 30(b)(6) deposition and as an individual witness can be 

subject to two seven-hour depositions. The remaining cases cited by Respondent address 

 

2 Respondent’s motion provides little in the way of facts regarding the circumstances leading up to CSHO 

McWilliams’s deposition. I assume, for purposes of ruling on this motion, the deposition was taken in 

compliance with Commission Rule 56. 
3 

sanctions when a party has failed to comply with its discovery obligations under Fed. R. Civ. P. 

30(b)(6) or situations in which a party attempted to present evidence by affidavit or deposition of 

an individual contradicting Rule 30(b)(6) deposition testimony in order to create an issue of fact 

in response to a motion for summary judgment.3

 Neither situation is presented here. 

Respondent speculates the Secretary may present some testimony, from some unnamed 

witness that may contradict CSHO McWilliams’s deposition testimony. The Secretary is not 

prohibited from doing so and the Court may consider it. See Kaspar Wire Works, Inc. v. Sec'y of 

Labor, 268 F.3d 1123, 1128 (D.C. Cir. 2001) (citing L.R. Wilson & Sons, Inc. v. Donovan, 685 

F.2d 664, 676 (D.C.Cir.1982) (“the Commission is not bound by the representations or 

interpretations of OSHA Compliance Officers.”). If presented, Respondent may address such 

contradictory testimony on cross examination and I will give it the appropriate weight.

With regard to Respondent’s contention the Secretary cannot present testimony regarding 

statements made by confidential witnesses,

4

 I decline to exclude such evidence at this juncture. 

Respondent does not specify those documents it seeks to have excluded. Ruling on the 

admissibility of unspecified documents would be arbitrary at best. Respondent contends 

testimony regarding statements made to CSHO McWilliams must be excluded as hearsay. 

Respondent’s motion does not identify what statements it seeks to exclude. The Commission has 

long held statements made by employees of a cited employer that concern matters within the 

scope of their employment are not hearsay and are admissible under Fed. R. Evid. 801(d)(2)(D). 

Atlantic Battery Co., 16 BNA OSHC 2131, 2185 (No. 90-1474, 1994); Regina Construction Co., 

15 BNA OSHC 1044, 1047 (87-1309, 1991); StanBest, Inc., 11 BNA OSHC 1222, 1227 (No. 76-

 

3 The latter has been referred to by the courts as the “sham affidavit doctrine.” See 8A Wright, Miller, and 

Marcus, Federal Practice and Procedure, §2103 (2010). 

4 Respondent has never sought to compel production of unredacted documents or disclosure of the identity of 

confidential witnesses. The Commission has long recognized the informer’s privilege in protecting, during the 

discovery phase of OSHA proceedings, the identity of individuals supplying information to the Secretary. Pratt & 

Whitney Aircraft, 9 BNA OSHC 1653, 1657 (No. 13401, 1981); Forte Brothers, Inc. 9 BNA OSHC 1065, 1066 (No. 

79-5655, 1980); Quality Stamping Products Co., 7 BNA OSHC 1285, 1287 (No. 78-235, 1979). The Secretary is 

not now, and has not been at any point in this proceeding, obligated to produce such information. See Pratt & 

Whitney Aircraft, 9 BNA OSHC 1653, 1654 (No. 13401, 1981) (holding unredacted copies of the inspector’s notes 

must be turned over after the inspector testifies, but “any material in the statements that would reveal the identity of 

confidential informants need not be produced.” citing Massman-Johnson (Luling), 8 BNA OSHC 1369, 1376 (No. 

76-1484, 1981)). None of the cases relied upon by Respondent compel a contrary result.
4 

4355, 1983); Morris Enterprises Inc., 5 BNA OSHC 1248, 1249 (No. 12283, 1977); see also 

Astra Pharmaceutical Products, 681 F.2d 69, 73 n. 8 (1st Cir. 1982).5 This evidence may also 

fall within one of the exceptions to the rule against admissibility of hearsay found in Fed. R. 

Evid. 803. Respondent’s failure to identify with specificity what statements it seeks to exclude 

makes a response from the Secretary and a ruling on their admissibility impossible. Respondent 

has essentially asked the Court for an advisory ruling prohibiting the Secretary from presenting 

inadmissible hearsay. Such a ruling would be premature and serve no purpose. 

For the foregoing reasons, Respondent’s Motion in Limine is DENIED.

SO ORDERED. 

 Heather A. Joys

Date: June 16, 2016 Judge Heather A. Joys 1924 Building, Suite 2R90

 100 Alabama Street, S.W.

 Atlanta, Georgia 30303-3104

 Phone: (404) 562-1640 Fax: (404) 562-1650

 

5 Assuming the Secretary can make the requisite showing of the existence of the employment relationship. 

Reed Engineering Group, Inc., 21 BNA OSHC 1290, 1291 (No. 02-0620, 2005).