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What Information Can Be Obtained During Discovery?

By Ellen Smith

In two recent cases on what information can be obtained during discovery, ALJs have taken different directions – one ruling in favor of an operator and one against. In a case involving inspector’s notes, ALJ Gary Melick said that MSHA over-reached in refusing to turn over inspector’s notes, requested by American Coal Co. during discovery.

First Case
On Aug. 15, the operator filed a motion to compel, complaining that the Secretary had improperly refused to produce documents sought in discovery. The company said the Secretary improperly asserted privileges to avoid disclosing the information and ALJ Gary Melick agreed.

American Coal sought special assessment review forms prepared by MSHA in its discovery request. The Secretary claimed the forms were protected from disclosure by the deliberative process privilege. The privilege protects advisory opinions, recommendations and deliberations by the government that are used in making policy. It covers internal agency communications that are part of the deliberative process and is applied so that employees may make frank communications.

After examining the disputed documents, ALJ Melick ruled that the forms all fell outside the privilege “because the positions taken in the documents were adopted as the agency’s position regarding the charging documents at issue.” The forms contained the inspector’s “factual basis for his recommendations to the Secretary,” the ALJ said. Purely factual material that does not expose the agency’s decision-making process does not fall under the privilege, he said. Once the Secretary issues citations, “the inspector’s recommendations and those of his supervisors become the agency’s position and any claim to the deliberative process privilege is thereby lost.”

Second Case
In a second case, ALJ Priscilla M. Rae ruled against Hidden Splendor Resources. The operator filed a motion, seeking a copy of the “Special Assessment Review” (SAR) made in the case, even though formal discover had not started. The Secretary refused to turn over the SAR, invoking the deliberative process privilege.

The operator said the SAR would contain information that would lead to the discovery of relevant facts including agency conclusions in the case along with recommendations made by MSHA officials. However, under Rule 26(b)(3) of the Federal Rules of Civil Procedure (see sidebar), the mental impressions, conclusions or opinions of attorneys or representatives of a party is protected from disclosure.

The SAR contains select facts about a health and safety violation, the ALJ said, along with “the mental impressions, conclusions and opinions of MSHA officials used in the determination to categorize the violations as flagrant, and thus enhancing the penalties assessed.” “It is clear to me that the [operator] is not interested in obtaining the facts in support of these violations, but is interested in reaching the inner workings or deliberative process by which MSHA determines the special assessments,” the ALJ said.

In denying the operator’s motion, ALJ Rae said the SAR is protected under the deliberative process privilege, as well as the work product privilege.

* American Coal Co., 9/21/11, civil penalty proceeding, Docket No. LAKE 2008-666 & 667
* Hidden Splendor  Resources Inc., 9/7/11, civil penalty proceeding, Docket No. WEST 2011-896 E

Federal Rules Of Civil Procedure
RULE 26: Duty To Disclose; General Provisions Governing Discovery
(B) Proceedings Exempt from Initial Disclosure. The following proceedings are exempt from initial disclosure:
(i) an action for review on an administrative record;
(ii) a forfeiture action in rem arising from a federal statute;
(iii) a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence;
(iv) an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision;
(v) an action to enforce or quash an administrative summons or subpoena;
(vi) an action by the United States to recover benefit payments;
(vii) an action by the United States to collect on a student loan guaranteed by the United States;
(viii) a proceeding ancillary to a proceeding in another court; and
(ix) an action to enforce an arbitration award.

Ellen Smith is the owner of Legal Publication Services, publisher of Mine Safety & Health News, She has been covering mining issues since 1987 and has won 31 journalism awards for her reporting, including the 2010 Magnum Opus Award for Outstanding Achievement in Custom Media. Ellen can be reached at 585-721-3211,
or at This email address is being protected from spambots. You need JavaScript enabled to view it..