UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

HILDA L. SOLIS, Secretary of Labor, ) 

United States Department of Labor, ) 

 ) 

 Complainant, ) 

 ) OSHRC Docket No. 08-1104 

v. ) 

 ) 

IMPERIAL SUGAR COMPANY; IMPERIAL- ) 

SAVANNAH, L.P.; and their Successors, ) OSHA Inspection No. 310988712 

 ) 

 Respondents. ) 

COMPLAINANT’S MOTION FOR LEAVE TO TAKE THE DEPOSITIONS OF 

WITNESSES WHO WERE INTERVIEWED UNDER OATH BY THE OCCUPATIONAL 

SAFETY AND HEALTH ADMINISTRATION DURING THE INVESTIGATION 

Pursuant to Rule 2200.56(a) of the Occupational Safety and Health Review Commission, 

and Rule 26(c) of the Federal Rules of Civil Procedure, Complainant moves for leave to take the 

depositions of certain witnesses who have previously been interviewed by the Occupational 

Safety and Health Administration (“OSHA”). As grounds for this Motion, Complainant shows 

as follows: 

I. CERTIFICATION 

 Pursuant to Fed. R. Civ. P. 26(c)(1), the undersigned counsel hereby certify that 

Complainant has, in good faith, conferred with counsel for Respondents in an effort to resolve 

the dispute without court action. 

II. WITNESSES AT ISSUE

Since May 2009, counsel for Complainant has conferred with counsel for Respondents to 

schedule the depositions of certain fact witnesses, who are managers or supervisors currently or 

previously employed by Respondents. However, counsel for Complainant was notified that 
Respondents oppose the depositions of any witnesses who previously gave administrative 

depositions during the investigation by OSHA, prior to the present litigation. These witnesses 

potentially include the following individuals: 

1. Donny Bryan, Capital Projects Manager (Refinery and Packaging) at Respondents’ 

facility at Port Wentworth, Georgia (interviewed May 30, 2008); 

2. Phillip Scott Glidewell, Risk Manager for Respondent Imperial Sugar Company 

(interviewed June 5, 2008); 

3. Christopher S. Gordon, Process/Project Engineer at Respondents’ facility at Port 

Wentworth, Georgia (interviewed May 28, 2008); 

4. Deborah Haban, Director of Human Resources for Respondent Imperial Sugar 

Company (interviewed June 26, 2008); 

5. Brian Harrison, Vice President of Sugar Technologies and former Vice President of 

Operations for Respondent Imperial Sugar Company (interviewed June 12, 2008); 

6. Kay Hastings, former Senior Vice President of Human Resources for Respondent 

Imperial Sugar Company (interviewed June 15, 2008); 

7. Michael Lastie, former Corporate Safety Manager for Respondent Imperial Sugar 

Company (interviewed June 14, 2008); 

8. Aamir Mausoof, Refinery Operations Manager at Respondents’ facility at Port 

Wentworth, Georgia (interviewed May 27, 2008); 

9. Darren Pevey, Safety Manager at Respondents’ facility at Port Wentworth, Georgia 

(interviewed May 28, 2008); 

2
10. John Sheptor, President and Chief Executive Officer, Imperial Sugar Company, Sugar 

Land, Texas (interviewed for approximately 15 minutes on June 6, 2008, and 

interviewed again on June 11, 2008); 

11. Douglas Sykes, Corporate Safety Manager, Imperial Sugar Company, Sugar Land, 

Texas (interviewed June 4, 2008); 

12. Dwayne Zeigler, Senior Manager Planning, Port Wentworth, Georgia (interviewed 

May 29, 2008). 

III. ARGUMENT

Under the rules of the Occupational Safety and Health Review Commission, Complainant 

is entitled to reasonable development of evidence in support of her case. See generally 29 C.F.R. 

2200.52. The information sought by a party during discovery “may concern any matter that is 

not privileged and that is relevant to the subject matter involved in the pending case.” 29 C.F.R. 

2200.52(b). In cases arising under the Commission rules, depositions may be used for 

“discovery, to contradict or impeach the testimony of a deponent as a witness, or for any other 

purpose permitted by the Federal Rules of Evidence or the Federal Rules of Civil Procedure . . .” 

29 C.F.R. 2200.56(f). The United States Supreme Court has held that “the deposition-discovery 

rules are to be accorded a broad and liberal treatment,” since “[m]utual knowledge of all the 

relevant facts gathered by both parties is essential to proper litigation.” Hickman v. Taylor, 329 

U.S. 495, 507, 67 S.Ct. 385, 392. The Court also stated that certain limitations to discovery do 

exist within the Federal Rules of Civil Procedure when a party seeks discovery in “bad faith,” 

intends to “annoy” the opponent, or addresses irrelevant or privileged information. Id. 

Respondents oppose the depositions of the above witnesses on the grounds that these 

witnesses were previously interviewed by OSHA under oath. Complainant is unaware of any 

3
Commission rule or provision of the Federal Rules of Civil Procedure or the Federal Rules of 

Evidence which suggests that a previous sworn interview statement – or administrative 

deposition conducted by the agency during an investigation – precludes the taking of an 

individual’s deposition by attorneys in litigation that follows the issuance of citations. Further, 

Complainant is unaware of any federal or Commission case law that offers such a suggestion. 

The Federal Rules of Civil Procedure do not even preclude the deposing of a witness who has 

already been formally deposed in a matter, as long as the requesting party obtains leave of court 

to do so. FED. R. CIV. P. 30(a)(2)(A)(ii). 

None of the above witnesses have been deposed in this case. Rather, all of these 

individuals were interviewed by OSHA investigators and officials following the fatal explosion 

at Respondents’ facility at Port Wentworth, Georgia, on February 7, 2008. The individuals listed 

above possess discoverable information in light of their supervisory roles and responsibilities 

concerning safety and plant operations, and due to their knowledge of conditions at Respondents’ 

facility. Complainant submits that any proposed deposition of these individuals would not 

simply result in a duplication of information already provided to OSHA. The statements culled 

from interviews by OSHA should in no way be viewed in the same light as a traditional litigation 

discovery process. These interviews were conducted before OSHA issued citations, before 

Respondents chose to contest the citations, before Complainant filed the first pleading in this 

litigation, before Respondents raised affirmative defenses in this matter, and before any formal 

discovery occurred in this case. Attorneys for Complainant are not in the same position as the 

OSHA investigators and officials who interviewed these individuals prior to the issuance of 

citations, and should not be precluded from seeking discoverable information merely because 

some of the potential witnesses were interviewed by OSHA during the investigation. 

4
Counsel for Complainant advised Respondents’ counsel that Complainant would 

endeavor wherever possible not to “cover the same ground” addressed in the previous 

administrative depositions conducted by OSHA. To date, Complainant has requested only to 

take the deposition of one of the twelve individuals listed above, Amir Mausoof. However, it is 

foreseeable that Complainant may seek to depose other individuals named above and would 

again encounter the Respondents’ objection. 

Complainant submits that her ability to conduct thorough discovery in this case should 

not be limited by previous interviews with individuals conducted by OSHA prior to the 

commencement of this action. There is no precedent for the position taken by Respondents. The 

information sought by Complainant in conducting depositions of the witnesses listed above is 

relevant, not overly burdensome, not repetitious, and not privileged. Instead, Complainant seeks 

to obtain information necessary to the development of her case, to determine credibility of 

potential witnesses, and to engage in a good faith effort to discover facts relevant to the claims 

and defenses in this case. Respondents have, thus far, provided no basis in law or fact to impede 

Complainant’s ability to conduct the depositions of these relevant witnesses. 

IV. CONCLUSION

 WHEREFORE, for the foregoing reasons, Complainant respectfully requests that the 

present Motion be granted. 

Respectfully submitted, this 11th day of August, 2009. 

5
ADDRESS: CAROL DE DEO 

Deputy Solicitor of Labor 

Office of the Solicitor 

U. S. Department of Labor STANLEY E. KEEN 

61 Forsyth Street, S.W. Regional Solicitor 

Room 7T10 

Atlanta, GA 30303 SHARON D. CALHOUN 

Deputy Regional Solicitor 

Telephone: 404/302-5435 

Facsimile: 404/302-5438 By: s/Karen E. Mock 

Mock.karen@dol.gov KAREN E. MOCK 

Donaldson.angela@dol.gov Senior Trial Attorney 

ANGELA F. DONALDSON 

 Trial Attorney 

Attorneys for the Secretary of Labor 

SOL Case No. 08-60093 United States Department of Labor 

6
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 Complainant’s Motion for Leave 

to Take the Depositions of Witnesses Who Were Interviewed Under Oath by the Occupational 

Health and Safety Administration During the Investigation was electronically served on August 

11, 2009 on the following parties: 

Charles H. Morgan, Esq. 

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 

 s/Angela F. Donaldson _______

ANGELA F. DONALDSON 

 Trial Attorney 

SOL Case No. 08-60093 

7
UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

HILDA l. SOLIS, Secretary of Labor, ) 

United States Department of Labor ) 

 ) 

 Complainant, ) 

 ) OSHRC Docket No. 08-1104 

v. ) 

 ) 

IMPERIAL SUGAR COMPANY; IMPERIAL- ) 

SAVANNAH, L.P.; and their Successors, ) OSHA Inspection No. 310988712 

 ) 

 Respondents. ) 

ORDER

This matter comes before the undersigned for consideration of Complainant’s Motion for 

Leave to Take the Depositions of Witnesses Who Were Interviewed Under Oath by the 

Occupational Health and Safety Administration During the Investigation. For good cause 

shown, Complainant’s Motion is GRANTED. 

Date: ___________ _________________________________ 

HONORABLE COVETTE ROONEY 

U.S. OSHRC JUDGE