UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor,

Complainant,

v.

Verizon NY, Inc., OSHRC Docket No. 12-0768

Respondent,

and

Communication Workers of America, 

AFL-CIO

Authorized Employee 

Representative

ORDER GRANTING IN PART AND DENYING IN PART RESPONDENT’S MOTION 

TO COMPEL DISCLOSURE OF FACTUAL INFORMATION

I. FACTS

Respondent (Respondent or Verizon) provides wireline telecommunications services in

the New York region. In about September, 2011, Outside Plant Technician Douglas LaLima was 

allegedly fatally electrocuted while installing telecommunications cable onto a utility pole. A 

compliance safety and health officer (CSHO) of the Occupational Safety and Health 

Administration (OSHA) conducted an inspection of Respondent’s worksite(s) at or near New 

Lots Avenue & Christopher Avenue, Brooklyn, New York 11212, and 4409 Avenue H, 2nd

Floor, Brooklyn, New York 11234, on September 14, 2011, and on March 13, 2012, OSHA 

issued a three item repeat citation, five item serious citation, and two item other than serious 

citation. Thereafter, Respondent filed a notice of contest. Pleadings have been filed. Discovery 

is ongoing. 
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During Respondent’s October 9, 2012 deposition of Assistant Area Director (AAD) 

Mitchel Konca, the Secretary’s counsel instructed the AAD not to answer questions related to the 

names of individuals involved in the decision to issue the citations in this case, on the ground 

that the names of the deliberators are protected by the deliberative process privilege.1

On October 10, 2012, during Respondent’s deposition of CSHO Janet Drogowski, the 

Secretary’s counsel objected to, and instructed the CSHO not to answer, questions relating to the 

number of non-managerial employees she interviewed during her investigation, on the ground 

that this information is protected by the informer’s privilege. Further, the Secretary’s counsel 

similarly objected to and instructed the witness not to answer questions relating to: 1) how the 

employees interviewed were selected; and 2) whether she was told to disregard statements by 

management and always accept uncritically what non-management employees told her.

On January 25, 2013, Respondent filed its Motion to Compel Disclosure of Factual 

Information (Motion to Compel). Verizon seeks to compel further deposition testimony of the 

CSHO and AAD, as well as an order: 1) requiring the CSHO to answer the question relating to: 

a) the number of non-managerial employees she interviewed during the course of her 

investigation, b) how those employees were selected, and c) whether she was told to disregard 

statements by management and always accept uncritically what non-management employees told 

her, and 2) requiring the AAD to answer questions relating to the names of individuals involved

in the decision to issue the citations in this matter.

Verizon argues that the deliberative process privilege does not protect: 1) the identities

of the individuals involved in the decision to cite Verizon because the identities are factual 

 

1 The Secretary asserts that she objected to the disclosure of the identities of the officials from OSHA’s regional 

office with whom AAD Konca consulted prior to the issuance of the citations in this case. 
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information,

2

or 2) whether the CSHO was instructed to believe only non-managers and to 

disregard information provided by management. Verizon also asserts that the informer’s

privilege does not protect the number of non-managerial employees that the CSHO interviewed

during her investigation, and how the CSHO selected the employees that she interviewed. 

On February 8, 2013, the Secretary filed her Opposition to Respondent’s Motion to 

Compel Disclosure of Factual Information (Opposition to Motion to Compel). In it, the 

Secretary withdrew her claim of privilege as to whether the CSHO was told by anyone within 

OSHA that she is required to believe the statements of non-managers over the statements of

managers.3 The Secretary asserts that she has properly invoked government privileges in this 

matter and submitted the affidavit of David Michaels, the Assistant Secretary for OSHA, to 

formally invoke the governmental privileges. Citing to various cases, the Secretary further 

asserts that the identities of agency officials, beyond the CSHO, AAD, and Area Director (AD),

who offered advice and recommendations are protected by the deliberative process privilege in 

order to protect frank discussions of policy.4 See AIDS Healthcare Found. v. Leavitt, 256 

Fed.Appx. 954, 957 (9th Cir. 2007) (quoting EPA v. Mink, 410 U.S. 73, 87 (1973)) (privileging 

from disclosure the identities of agency personnel who reviewed Appellant’s grant applications 

 

2

In support of its position, Respondent cites to Thomas v. Cate, 715 F. Supp. 2d 1012, 1026 (E.D. Cal. 2010); 

Grolier Inc. v. FTC, No. 76-1559, 1979 WL 1641, at *2 (D.D.C. June 11, 1979).

3 The Secretary has stated that Verizon can rely on her written averment that the CSHO stated that she has not 

received an instruction to believe the statements of employees without regard to statements given by managers. The 

Secretary asserts that any follow-up questioning on this topic would be cumulative and unnecessary.

4 The Secretary also argued that the two cases cited by Respondent in support of its position are distinguishable. She 

asserts in Thomas, the court noted that the manner in which the Governor exercised his discretion in revoking the 

petitioner’s parole was the issue in the case, and therefore weighed heavily against any assertion of the deliberative 

process privilege. She also stated that the court did not address the identity of other persons with whom the 

principal actors consulted for recommendations and opinions prior to drafting the final report. The Secretary also 

asserted that Grolier, Inc. has been superseded by later decisions in its district and Circuit; e.g. See Coffield v. City 

of La Grange, Georgia, 913 F. Supp. 608, 616 (D.D.C. 1996) (“this Circuit has recognized that if a document is 

deliberative in nature, the identity of the author is also privileged”) (citing Brinton v. Dep’t of State, 636 F.2d 600, 

604 (D.C. Cir. 1980), cert. denied, 452 U.S. 905 (1981). The Court agrees with the Secretary that the two cases

cited by Respondent are distinguishable for the reasons discussed by the Secretary.
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despite Appellant’s claim that the identities were “purely factual material”); see also Brinton v. 

Dep’t of State, 636 F.2d at 604 (because “agency records are indeed deliberative, it is appropriate 

to apply [Freedom of Information Act (FOIA)] Exemption 5 to the documents themselves, as 

well as to the names of their authors”); Coffield v. City of La Grange, Georgia, 913 F. Supp. at

616 (“[I]f a document is deliberative in nature, the identity of the author is also privileged, 

because of the potential chilling effect and harm to the deliberative process. This reasoning 

applies equally to internal routing notations that identify agency personnel involved in the 

deliberative process ....”); Tax Reform Research Group, 419 F. Supp. 415, 423 (D.D.C. 

1976)(“one aspect of the deliberative process therefore protected ... is the identify of persons 

giving particular advice on a policy matter.”). The Secretary also argues that Respondent has not 

shown a sufficient need for the identities of the OSHA Regional Office officials and asserts that 

their names are not relevant to the issues to be tried in this case. 

The Secretary further asserts that the manner by which the CSHO decided which 

employees to interview, as well as the number of non-managerial employees that she interviewed

are protected by the informer’s privilege. She states that disclosing the number of employees 

that the CSHO interviewed would tend to reveal the identity of informants. She further asserts 

that disclosing the manner in which the CSHO identified employees to interview would assist 

Verizon in identifying informants.5 The Secretary argues that the information sought by 

Respondent is not essential for its preparation for the trial and that Verizon has not demonstrated 

a sufficient need to overcome the informer’s privilege. 

On March 11, 2013,Verizon filed its Reply in Further Support of Its Motion to Compel 

Disclosure of Factual Information (Reply). In its Reply, Respondent reiterated its reliance upon 

 

5 The Secretary asserts that there are 100 employees that work at the facility at issue, including about 40 linemen.
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Thomas and Grolier, Inc. It further argued that the cases cited by the Secretary in support of her 

position that the identities of deliberators beyond the CSHO, AAD and AD are protected show 

that all of the deliberators should be identified where there is no risk that the identities would 

reveal any information about their opinions or mental impressions. Verizon also argues that the 

Secretary has the burden to establish the applicability of any privilege and that the burden shifts 

to Verizon to overcome the applicable privilege by demonstrating a substantial need for the 

protected information.6In its Reply, Verizon acknowledges that the Secretary has withdrawn 

any assertion of privilege with regard to the question of whether the CSHO was instructed to 

credit statements made by Verizon non-management, and disregard statements made by Verizon 

management. Verizon maintains that it is entitled to have the CSHO answer the question in her 

own words, along with any follow-up questions relating to her answer. Verizon also reiterated 

its position that the number of non-managerial employees the CSHO interviewed during the 

course of her investigation and how the interviewees were selected are not protected by the 

informer’s privilege.

On March 22, 2013, the Secretary filed her Surreply to Respondent’s Motion to Compel 

(Surreply) in which she asserts that Verizon misstated the holdings in the Brinton and Coffield

cases. She stated that in Brinton, the D.C. Circuit court did not hold, as Verizon asserts, that the 

identities of the authors of pre-decisional advisory documents could be disclosed so long as no 

information regarding their opinions or mental impressions was revealed. The Secretary argues 

that OSHA should not be “forced to operate in a fishbowl” by having to identify every person 

who was in any way consulted by the CSHO, AAD, or AD before the citations were issued. She 

 

6 Verizon argues that it is entitled to learn “the identities of those involved in the decision to issue the Citation, and 

the roles those individuals played.” 
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reiterated her argument that the informer’s privilege protected any information which would tend 

to identify the informants, including the number of employees interviewed and the manner in 

which the CSHO determined which employees to interview. Lastly, the Secretary argued that 

Verizon should not be permitted to depose the CSHO again because it would be a waste of time. 

The case is set for trial to commence on September 16, 2013.

II. DISCUSSION

The deliberative process privilege protects government materials that comprise or reflect 

the process by which governmental decisions and policies are made. National Labor Relations 

Board v. Sears, Roebuck & Co. (NLRB v. Sears), 421 U.S. 132, 150 (1975); Dudman Commc’n 

Corp. v. Air Force, 815 F.2d 1565, 1567 (D.C. Cir. 1987).7 It allows the government to withhold 

information that would reveal advisory opinions, recommendations and deliberations comprising 

part of a process by which governmental decisions and policies are formulated. See NLRB v. 

Sears, 421 U.S. at 150; Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena (Carl Zeiss), 40 F.R.D.

318, 324 (D.D.C. 1966); Stone and Webster Constr., Inc., 23 BNA OSHC 1939, 1941 (No. 10-

0130 and 10-0169, 2012) (quoting In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). The 

deliberative process privilege is unique to the Government and releases it from discovery 

obligations otherwise imposed on private litigants. See, e.g., Coastal States Gas Corp. v. Dep’t 

of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) (deliberative process privilege is "unique to the 

government").

The Government has the initial burden of demonstrating that the requested materials are 

within the deliberative process privilege. Once such a showing is made, the requesting party 

 

7

See Equal Employment Opportunity Comm’n v. Albertson’s LLC, f/k/a Albertson’s, Inc., Civ. No. 06-01273-CMABNB, 2008 WL 4877046 at *1 (D. Col. Nov. 12, 2008)(“Federal common law recognizes the deliberative process 

privilege.”)
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must make a showing of substantial need to overcome the privilege in civil litigation. See NLRB 

v. Sears, 421 U.S. at 149, n. 16. Respondent has made no such showing in this case.

The deliberative process privilege has three purposes. First, it protects "creative debate 

and candid consideration of alternatives within an agency and, thereby, improves the quality of 

agency policy decisions." Russell v. Dep’t of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 

1982).8 It is premised upon the notion that "[h]uman experience teaches that those who expect 

public dissemination of their remarks may well temper candor with a concern for appearances . . 

. to the detriment of the decisionmaking process." NLRB v. Sears, 421 U.S. at 150-151, quoting 

U. S. v. Nixon, 418 U.S. 683, 705 (1974); Branch v. Phillips Petroleum Co., 638 F.2d 873, 882 

(5th Cir. 1981) ("Government officials would hesitate to offer their candid and conscientious 

opinions to superiors or co-workers if they knew that their opinions of the moment might be 

made a matter of public record at some future date").9

Second, the deliberative process privilege protects the public from confusion that would 

result from disclosure of internal agency discussions or statements that have not in fact been 

adopted as the agency's position. Russell, 682 F.2d at 1048 (citing Jordan v. U.S. Dep’t of 

 

8 Congress was concerned that if agencies were “forced to 'operate in a fish bowl,' S. Rep. No. 813, 89th Cong., 1st 

Sess. 9 (1965), the frank exchange of ideas and opinions would cease and the quality of administrative decisions 

would consequently suffer." Dudman, 815 F.2d at 1567. The Court agrees with the Secretary that OSHA should 

not be “forced to operate in a fishbowl” by having to identify every person who was in any way consulted by the 

CSHO, AAD, or AD before the citations were issued.

9 Many of the cases discussing the scope of the deliberative process privilege have arisen in the context of claims 

that certain documents are exempt from the disclosure requirements of the FOIA under Exemption 5 which permits 

nondisclosure of "inter-agency or intra-agency memoranda which would not be available by law to a party other 

than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5)(2009). While the FOIA itself does not create 

"evidentiary privileges for civil discovery," Kerr v. United States District Court for the North. Dist. of Calif., 511 

F.2d 192, 197 (9th Cir. 1975), aff'd, 426 U.S. 394 (1976), cases construing Exemption 5 of the FOIA are relevant 

precedent for purposes of defining the scope of the privilege because Exemption 5 exempts "those documents, and 

only those documents, normally privileged in the civil discovery context." NLRB v. Sears, 421 U.S. at 149. The key 

difference between the scope of Exemption 5 of the FOIA and the scope of the deliberative process privilege in the 

context of civil discovery is that, in the latter case, the courts may override a claim of a privilege depending on "the 

extent of the litigant's need in the context of the facts of his particular case; or on the nature of the case." Id. at 149, 

n. 16; Environmental Protection Agency v. Mink, 410 U. S. at 86.
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Justice, 591 F.2d 753, 772-73 (D.C. Cir. 1978)(en banc). The principal concern here is that the 

public might treat tentative, early-on, unofficial statements of agency employees as the agency's 

official position. See Russell, 682 F.2d at 1048-49. Third, the privilege protects "the integrity of 

the [government's] decision-making process" by ensuring that "officials should be judged by 

what they decided, not for matters considered before making up their minds." Id. at 1048 (citing 

Jordan, 591 F.2d at 773). 

To determine whether particular materials fall under the privilege, courts look to (1) 

whether the material is "predecisional" — whether it was generated before the adoption of an 

agency policy or position in order to assist in arriving at that final decision — and, (2) whether it 

is "deliberative" — "whether it reflects the give-and-take of the consultative process." Coastal 

States Gas Corp., 617 F.2d at 866. The exemption generally covers "recommendations, draft 

documents, proposals, suggestions, and other subjective documents which reflect the personal 

opinions of the writer rather than the policy of the agency." Id., Renegotiation Board v. 

Grumman Aircraft Eng’g Corp., 421 U.S. 168, 184 (1975), FTC v. Warner Commc’ns, Inc., 742 

F.2d 1156, 1161 (9th Cir. 1984). Analysis and evaluation of facts are within the scope of the 

privilege. See Skelton v. U.S. Postal Service, 678 F.2d 35, 38 (5th Cir 1982). The Court finds 

that the names of individuals, and the roles that they played, involved in the decision to issue the 

citations in this case or with whom the CSHO, AAD, or AD may have consulted prior to the 

issuance of the citations, beyond those of the CSHO, AAD, and AD, are included within the 

scope of the privilege. See EPA v. Mink, 410 U.S. at 87; AIDS Healthcare Found. v. Leavitt, 256 

Fed.Appx. at 957; Brinton v. Dep’t of State, 636 F.2d at 604; Coffield v. City of La Grange, 

Georgia, 913 F. Supp. at 616; Tax Reform Research Group, 419 F. Supp. at 423.

The deliberative process privilege is not absolute; it is a qualified privilege. Carl Zeiss, 
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40 F.R.D. at 318, In re Sunrise Sec. Litig., 109 B.R. 658, 665-67 (E. D. Pa. 1990). After 

concluding that the privilege is properly invoked, the courts must balance the public interest in 

non disclosure with the individual need for the information as evidence. Committee for Nuclear 

Responsibility v. Seaberg, 463 F.2d 788, 791 (D.C. Cir. 1971), Carl Zeiss, 40 F.R.D. at 327. The 

factors to be weighed include the (1) degree to which the proffered evidence is relevant, (2) 

extent to which it may be cumulative, and (3) opportunity of the party seeking disclosure to 

prove the particular facts by other means. U. S. v. AT&T Company, 524 F. Supp. 1381 (D.D.C. 

1981), In re Franklin Nat’l Bank Sec. Litig., 478 F. Supp. 577 (E.D. N.Y. 1979). To compel 

disclosure, the Respondent must make “a showing of necessity sufficient to outweigh the adverse 

effects the production would engender.” Carl Zeiss, 40 F.R.D. at 328-29.

Claims of privilege are addressed at Rule 52(d)(1) of the Commission Rules of 

Procedure.

10

 Complainant has complied with the provisions of Commission Rule 52(d)(1) and 

relevant case law providing guidance as to how to assert the deliberative process privilege.

11

 

Complainant has formally asserted the deliberative process privilege and has provided a 

supporting affidavit by an appropriate official. The Secretary of Labor’s designee, Assistant 

Secretary of Labor for OSHA David Michaels, personally reviewed all relevant deposition 

 

10 Commission Rule 52(d)(1) reads: (1) Claims of privilege. The initial claim of privilege shall specify the privilege 

claimed and the general nature of the material for which the privilege is claimed. In response to an order from the

Judge or the Commission, or in response to a motion to compel, the claim shall: Identify the information that would 

be disclosed; set forth the privilege that is claimed; and allege the facts showing that the information is privileged. 

The claim shall be supported by affidavits, depositions, or testimony and shall specify the relief sought. The claim 

may be accompanied by a motion for a protective order or by a motion that the allegedly privileged information be 

received and the claim ruled upon in camera, that is, with the record and hearing room closed to the public, or ex 

parte, that is without the participation of parties and their representatives. The judge may enter an order and impose 

terms and conditions on his or her examination of the claim as justice may require, including an order designed to 

ensure that the allegedly privileged information not be disclosed until after the examination is completed. See 29 

C.F.R. § 2200.52d(1)(2009).

11 The “head of the department” having control over the requested information must (1) make a formal claim; (2) 

provide a detailed specification of the information for which the agency is claiming the privilege; and (3) base this 

assertion of the privilege on his or her actual personal consideration. See Landry v. FDIC, 204 F.3d 1125, 1135 

(D.C. Cir. 2000)(citing Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 399 (D.C. Cir. 1984)).
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transcripts and a summary of the litigation at issue. He determined that a formal assertion of the 

deliberative process privilege was appropriate and identified the precise information for which 

the privilege was asserted.12 The Court finds Mr. Michaels to be an appropriate “head of the 

department” entitled to assert the deliberative process privilege before the Court. The Court also 

finds that Mr. Michaels’ assertion that revealing the names of officials who have pre-decision 

consultations with compliance officers and area office managers about possible citations is 

shielded from disclosure by the deliberative process privilege is well reasoned and supported by 

sufficient explanation.13 Evidence regarding the basis or strategy of prosecutorial decisions or 

investigations is rarely subject to disclosure. The Court finds that the Secretary has established 

the basis for her assertion of the deliberative process privilege. The names of individuals, and 

the roles that these individuals played, involved in the decision to issue the citations in this case 

or with whom the CSHO, AAD, or AD may have consulted prior to the issuance of the citations, 

beyond those of the CSHO, AAD, and AD, are materials that are protected from disclosure to 

Respondent since they are pre-decisional in nature and deliberative.

14 Respondent has also failed 

to establish that the disclosure of the sought after information is critical to its defense of this 

matter and that the need for disclosure of the information is greater that the public interest in 

non-disclosure. See NLRB v. Sears Roebuck, 421 U.S. at 168; EPA v. Mink, 410 U.S. at 73. 

 

12 Specifically, Mr. Michaels asserted that revealing the names of officials who have pre-decision consultations with 

compliance officers and area office managers about possible citations “would have a chilling effect on the openness 

with which those officials will offer opinions and advice on legal and policy matters in future cases.” Michaels

Affidavits, dated February 4, 2013, at ¶ 13.

13 See Miller v. Mehltretter, 478 F. Supp. 2d 415, 430 (W.D.N.Y. 2007)(documents and evidence that tended to 

show how or why a decision was made by agent or office to use a grand jury subpoena were subject to deliberative 

process privilege); Startzell v. City of Philadelphia, Civ. No. 05-05287, 2006 WL 2945226 at *2 -*3 (E.D.Pa. Oct. 

13, 2006)(“testimony regarding how ‘the D.A.’s Office works with the Department of Police to bring criminal 

charges’ was subject to the deliberative process privilege”); Thompson v. Lynbrook Police Dep’t., 172 F.R.D. 23, 

26-27 (E.D.N.Y. 1997)(memoranda referring to steps taken by attorneys in completing their investigation not 

discoverable under the deliberative process privilege.). 

14 It is the Court that ultimately determines the validity of a claim of privilege to documents. Frazee Constr. Co., 1 

BNA OSHC 1270, 1273 (No. 1343, 1973).
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Respondent has also failed in meeting its burden of showing a particularized need for access to 

the sought after material following the Secretary’s showing that the deliberative process privilege 

protects the material from disclosure.15 The Court finds that Respondent does not need access to 

the sought after information to understand or defend the claims pending against it.16 

The Commission has long recognized the applicability of an informer's privilege in its 

proceedings. Stephenson Enters., Inc., 2 BNA OSHC 1080, 1082-83, (No. 5873, 1974), aff'd, 

578 F.2d 1021 (5th Cir. 1978). The informer's privilege is the government's right “to withhold 

from disclosure the identity of persons furnishing information on violations of the law to lawenforcement officers, ....” Donald Braasch Constr., Inc., 17 BNA OSHC 2082, 2083 (No. 94-

2615, 1997)(citation omitted). The purpose of the privilege is to protect the identity of 

informers, including the protection of a communication to the extent that its contents would 

reveal the informer's identity. Id. The Secretary may invoke the informer's privilege to prevent 

disclosure of the identity of individuals who assist in OSHA investigations. See Roviaro v. 

United States, 353 U.S. 53, 59 (1957); Donald Braasch, 17 BNA OSCH at 2083. In this case, 

the Secretary has properly asserted the informer’s privilege to protect the number of nonmanagerial employees the CSHO interviewed during the course of her investigation and how 

those employees were selected for interview. See Michaels Affidavit, dated February 4, 2013, at 

¶¶ 6 - 10. Mr. Michaels determined that a formal assertion of the informer’s privilege was 

appropriate and identified the precise information for which the privilege was asserted.17 The 

 

15 See U.S.E.E.O.C. v. Cont’l Airlines, Inc., 395 F. Supp. 2d 738, 741-42 (N.D. Ill., 2005).

16 See U.S.E.E.O.C. v. Cont’l Airlines, Inc., 395 F. Supp. 2d at 745 (Equal Employment Opportunity Commission’s 

internal decisionmaking process not relevant to enforcement action.).

17 Specifically, Mr. Michaels asserted that the disclosure of the privileged material may: 1) interfere with an 

investigative or enforcement action taken by OSHA under an authority delegated or assigned to OSHA; 2) adversely 

affect persons who have provided information to OSHA; or 3) deter other persons from reporting a violation of law 

or other authority delegated or assigned to OSHA. Michaels Affidavit, dated February 4, 2013, at ¶ 10.
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Court also finds that Mr. Michaels’ assertion that revealing the number of non-managerial 

employees the CSHO interviewed during the course of her investigation and how those 

employees were selected for interview is shielded from disclosure by the deliberative process 

privilege is well reasoned and supported by sufficient explanation. 

Respondent argues that it has a substantial need to know the number of non-managerial 

employees the CSHO interviewed during the course of her investigation and how those 

employees were selected for interview. Respondent bears the “heavy” burden of showing that 

disclosure of the information sought is necessary to its case. United States v. Lewis, 40 F.3d 

1325, 1335 (1st Cir. 1994) (citations omitted); see also United States v. Robinson, 144 F.3d 104, 

106 (1st Cir. 1998). An employer can overcome the informer's privilege by showing that: (1) it 

has a substantial need for the information that outweighs the government's entitlement to the 

privilege, and (2) the information is essential to the preparation of its case and it is unable to 

obtain it by any other means). See Donald Braasch, 17 BNA OSHC at 2085. Respondent’s

arguments fall short of meeting its burden. By interviewing its own employees, Respondent

would have access to the same sources of information as OSHA. Second, Respondent has not 

shown why knowing the number of non-managerial employees the CSHO interviewed during the 

course of her investigation and how those employees were selected for interview is its exclusive 

means of obtaining information about the circumstances relevant to the citations. Indeed, it has 

already been provided with the CSHO’s redacted interview notes. The Court finds that 

Respondent has failed to make the necessary showing to overcome the Secretary's assertion of 

the informer's privilege with regard to ascertaining the number of non-managerial employees the 

CSHO interviewed during the course of her investigation and how those employees were 

selected for interview.
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The informer’s privilege applies not only to the name of the informer, but also to any 

information that would aid in identifying the informer. U.S. v. Hughes, 658 F.2d 317, 321 (5th

Cir. 1981) (informer’s address protected), People ex rel. Sandstrom v. Pueblo County, Colo., 904 

P.2 874, 877 n. 2 (1995) (identity of hearsay declarant who provided information to informer 

might be privileged if identity would reveal identity of informer); Esparaza v. State Miss., 595 

So. 2d 418, 424 (1992) (name of person who informer claims he saw make buy from defendant 

privileged as this would disclose informer’s identity). Similarly, the communications of an 

informant are privileged to the extent necessary to prevent the disclosure of the informer’s

identity. See People v. Galland, 86 Cal. Rptr. 3d 841, 848 (2008) (communications from 

informant privileged if they would tend to disclose identity of the informer), U.S. v. Cartegena, 

593 F.3d 104, 113 (1st Cir. 2010) (disclosure of informer's conversations properly denied where 

they would provide circumstantial evidence of identity), In re Apollo Group, Inc. Securities 

Litigation, 251 F.R.D. 12, 34 (D.D.C. 2008) (content of communication privileged only if it 

would tend to reveal identity of informer).

18

 

The informer’s privilege protects against the disclosure of information that can assist an 

employer in identifying informants in order to make any retaliation impossible.19 The Secretary 

has conceded that the CSHO interviewed only linemen from the Avenue H Garage. Requiring 

the CSHO to identify the number of non-managerial employees she interviewed during the 

course of her investigation and explain she how selected those employees for interview may 

provide information to Verizon that might ultimately reveal the identity of informants. The 

 

18 Once statements by the informer have been redacted of identifiable material, the informer’s privilege is not a bar 

to disclosure of the remainder of any such statements. See Brock v. Frank v. Panzarino, Inc., 109 F.R.D. 157 

(E.D.N.Y. 1986), Reich v. Great Lakes Collection Bureau, Inc., 172 F.R.D. 58, 61 (W.D.N.Y. 1997).

19 See Birdair Inc., 23 BNA OSHC 1493, 1495 (No. 10-0838, 2011) (mere fact that individual supplied information 

relevant to investigation could lead to retaliation that privilege is intended to prevent).
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Secretary believes that Respondent may discern that the pool of possible informants may be 

limited to about 40 employees who work at the Avenue H Garage. If all were linemen, requiring 

the CSHO to disclose that she interviewed 40 employees and explain how she selected those 

employees, may tend to reveal the identity of informers and expose them to possible retaliation, 

especially when coupled with the CSHO’s redacted interview notes that have already been 

disclosed to Verizon. The Court need not quantify the risk that such an outcome may occur; it 

need only find that such a risk exists, and it does so here based upon the information before it. 

The Secretary has withdrawn her claim of privilege as to whether the CSHO was told by 

anyone within OSHA that she is required to believe the statements of non-managers over the 

statements of managers. Verizon maintains that it is entitled to have the CSHO answer the 

question in her own words, along with any follow-up questions relating to her answer. Verizon 

is correct.

III. CONCLUSION

For the aforementioned reasons, Respondent’s Motion to Compel is GRANTED IN 

PART and DENIED IN PART, to the extent indicated herein.

IV. ORDER

WHEREFORE IT IS ORDERED THAT Respondent’s Motion to Compel is GRANTED 

IN PART and DENIED IN PART to the extent indicated herein;

IT IS FURTHER ORDERED THAT the names of individuals, and the roles that these 

individuals played, involved in the decision to issue the citations in this matter or with whom the 

CSHO, AAD, or AD may have consulted prior to the issuance of the citations, beyond those of 

the CSHO, AAD, and AD, are materials that are protected from disclosure to Respondent by the 

deliberative process privilege, and to the extent Respondent’s Motion to Compel seeks such 
- 15 -

information it is DENIED;

IT IS FURTHER ORDERED THAT the number of non-managerial employees the 

CSHO interviewed during the course of her investigation, and how those employees were 

selected, is information that is protected from disclosure to Verizon by the informer’s privilege, 

and to the extent Respondent’s Motion to Compel seeks such information it is DENIED; and

IT IS FURTHER ORDERED THAT to the extent Respondent’s Motion to Compel seeks 

to continue the CSHO’s deposition, it is GRANTED to the extent that Verizon may continue the 

CSHO’s deposition for up to 45 minutes with the scope of Respondent’s questioning limited to 

whether or not the CSHO was told by anyone that she is required to believe the statements of 

non-managers over the statements of managers, along with any follow-up questions relating to 

her answer(s).20

SO ORDERED.

 /s/ 

The Honorable Dennis L. Phillips

 U.S. OSHRC Judge

Dated: April 3, 2013 

 Washington, D.C. 

 

20 Alternatively, the parties may jointly agree to a stipulation.