“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 79?570 \u00a0 CONTINENTAL OIL COMPANY, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0April 27, 1981DECISIONBefore BARNAKO, Acting Chairman; CLEARY and COTTINE,Commissioners.BY THE COMMISSION:??????????? OnDecember 7, 1979, Administrative Law Judge James A. Cronin certified aninterlocutory appeal on whether he erred in denying the Secretary?s motion todiscover two investigative reports of the Respondent, Continental Oil Company(?Conoco?).[1]On January 7, 1980, the Commission accepted the interlocutory appeal under Rule75[2] of the Commission Rules ofProcedure. We affirm Judge Cronin?s decision and hold that the investigativereports are attorney work product and are not discoverable.??????????? OnOctober 3, 1978, an explosion and fire occurred at Respondent?s refinery inDenver, Colorado. As a result of the explosion, three employees were killed,twelve persons were hospitalized and extensive damage was done to the Conocoplant and surrounding area.??????????? Withinhours of the tragedy, several investigations were started. One investigationwas conducted by officers of the Occupational Safety and Health Administration(?OSHA?). This investigation lasted approximately four months and consisted ofnumerous inspections, tests, interviews and requests for documents. By February1979, the Secretary had charged Conoco with 10 serious, 2 other than serious,and 2 willful violations of the Occupational Safety and Health Act of 1970, 29U.S.C. ?? 651?78 (?the Act?). More than $26,000 in penalties were proposed.??????????? Conoco,through its attorneys, also conducted its own investigations into the cause ofthe explosion. One of the investigations was conducted by an independent teamof experts specifically hired by Conoco?s attorneys to investigate the Denverrefinery explosion. The second investigation was conducted by expert Conocoemployees. Both sets of experts performed their research under the supervisionof Conoco?s attorneys. Each team reported their findings directly to theattorneys and no one else. The attorneys used the findings to advise Conocoabout the litigation arising from the explosion. Both teams of experts producedreports which are the subject of this appeal.??????????? Beforethe hearing on the merits, the secretary and Conoco conducted lengthydiscovery, concerning, among other things, the two investigative reports.Before discovery began, Judge Cronin issued a discovery order. The order saidthat requests for documents, inspection and interrogatories should be made byApril 27, 1979, and that all discovery should be completed by July 19, 1979.[3] On April 27, 1979, theSecretary requested all documents relating to Conoco?s investigation of theexplosion. Conoco refused, claiming that the documents were protected by the attorneywork product doctrine. On May 14, 1979, the Secretary served Conoco with a setof interrogatories which included a request to identify any documentspertaining to the explosion, the number of pages in each, who prepared thedocuments and a description of the contents of the documents. Conoco gavecertain general information concerning these documents, including the names ofthe persons who prepared the documents, but Conoco claimed that the otherrequests for specific information were unnecessary and burdensome. On July 6,1979, Judge Cronin ordered Conoco to identify by name all of the investigativematerial it had developed pertaining to the explosion and describe the contentsof each document. Conoco identified the documents, including the two investigativereports, at a pretrial conference on July 19, 1979.??????????? OnAugust 24, 1979, the Secretary requested certain investigatory documents.Conoco refused, saying that under Judge Cronin?s discovery order theSecretary?s request was untimely. Subsequently, the Secretary moved to compeldiscovery of the material including the investigative reports. Conoco claimedthe reports were attorney work product, explaining that the reports had beenprepared by request of its attorneys, in preparation for the anticipatedlitigation, and that Conoco was not planning to use the experts who preparedthe reports as witnesses at the hearing.??????????? JudgeCronin held a preliminary hearing on September 25, 1979, to determine whetherConoco should produce the two investigative reports. Only Conoco presentedevidence. After weighing the evidence presented at the hearing and viewing thereports in camera, Judge Cronin determined that the reports were attorney workproduct and that the Secretary had not made the requisite showing to obtaindiscovery under Rule 26 of the Federal Rules of Civil Procedure. Judge Croninfound that the Secretary had failed to meet his burden under Federal Rule26(b)(3) to show both a ?substantial need? for the report prepared by Conoco?sexpert employees and ?the inability to obtain the substantial equivalentwithout undue hardship.?[4] Judge Cronin furtherconcluded that the report prepared by the team of independent experts who wouldnot testify at the hearing was governed by Federal Rule 26(b)(4)(B) and that theSecretary had not made a showing of ?exceptional circumstances? under thatRule.[5] Therefore Judge Cronindenied the Secretary?s motion to compel discovery of the investigative reports.??????????? BeginningOctober 22, 1979, a hearing on the merits was held. At the close of hisrebuttal case on November 15, 1979, the Secretary renewed his request for thereports. The Secretary contended that the record as a whole demonstrated?exceptional circumstances? and ?substantial need? and therefore the reportsshould be discoverable.??????????? NoNovember 16, 1979, at the hearing, Judge Cronin ruled that the Secretary?srequest was untimely and unreasonable. Judge Cronin essentially repeated thefindings of his earlier memorandum decision and ruled that the reports were notdiscoverable. He also noted that the Secretary could have deposed Conoco?sexpert employees but inexplicably chose not to do so. However, to avoid a laterremand if his ruling should be reversed by the Commission, On December 7, 1979,Judge Cronin certified an interlocutory appeal. The certification of the appealstated:The ruling denies the Secretary access torelevant evidence on the grounds his motion to produce was untimely andunreasonable. The ruling concludes the Secretary should have moved to producebefore resting his direct case and not waited until his rebuttal. The followingquestion, therefore, is presented:\u00a0Whether the judge erred in ruling that theSecretary?s motion was untimely and unreasonable.?II??????????? Inits brief to the Commission, Conoco contends that the only question before theCommission is whether the Administrative Law Judge abused his discretion bydenying the Secretary?s motion, made at the end of his rebuttal, to compeldiscovery of the two investigative reports on the basis of the motion?suntimeliness. Conoco does not believe the question presented by theinterlocutory appeal is whether the reports are discoverable. In general,Conoco argues that the Secretary failed to take advantage of the ampleopportunities for discovery in this case and that his motion to compeldiscovery, coming late in the hearing, was untimely.??????????? Conoconotes that judges are usually given great discretion in controlling discovery.The Secretary, Conoco contends, was given many opportunities for discoverybeyond the original cut-off dates for discovery. Clearly, the judge concludedthat to give the Secretary one more chance at such an advanced stage in theproceedings would unduly burden the efficient administration of this case.Therefore, Conoco argues, the judge?s determination should be affirmed.??????????? AlthoughConoco contends this appeal does not encompass the merits of the discoveryorder, its brief also addresses these issues. Conoco argues that the reportsare attorney work product and privileged from discovery under Rule 26(B)(3) ofthe Federal Rules of Civil Procedure. Conoco contends that the evidence clearlyshows the reports were prepared in anticipation of litigation and not in theordinary course of business. In addition, Conoco claims that the Secretary hasfailed to demonstrate the substantial need and undue hardship which wouldpermit discovery of the reports under Federal Rule 26(b)(3) and has failed todemonstrate ?exceptional circumstances? under Federal Rule 26(b)(4)(B).??????????? Inhis brief, the Secretary argues that his motion is not untimely because it cameat the earliest possible time when the evidence showed that a substantial needunder Federal Rule 26(b)(3) and exceptional circumstances under Federal Rule26(b)(4)(B) existed to compel discovery of the reports. The Secretary claimsthat ?[t]he record as a whole demonstrates that complainant has a substantialneed of the factual portion of the two documents and has been unable to obtainsuch facts by other means.???????????? Onwhether the material constitutes attorney work product, the Secretary arguesfor a narrow interpretation of that privilege. The Secretary admits that the mentalimpressions and opinions of Conoco?s attorneys are clearly protected asattorney work product under the Federal Rules. However, the Secretary is onlyrequesting the factual portions of the reports and not any legal opinions orconclusions of Conoco?s attorneys. In addition, the reports were prepared byexperts rather than the attorneys. According to the Secretary, the attorneywork product privilege does not apply to the work of such experts.??????????? TheSecretary also contends that the reports were not prepared in anticipation oflitigation but rather in the regular course of business. After the explosion,Conoco prepared the reports in a way any responsible company would investigatesuch a fatal accident. Therefore, in the Secretary?s view, the reports are discoverablesince the work product privilege does not apply to any documents prepared inthe regular course of business.??????????? TheSecretary also argues that even if the Commission should find that thismaterial is work product, he has shown a substantial need for the material. TheSecretary claims that the reports are essential to his case because theycontain information developed by Conoco?s process superintendent during the twoto three weeks immediately after the accident. Further, all of the information inthe reports was compiled long before the Secretary?s experts were able to viewthe site of the explosion. The reports contain the results of destructivetesting and reconstructed strip charts. Strip charts monitored the performanceof an operating unit in Conoco?s plant, the catalytic polymerization unit, upuntil the explosion. After the explosion, certain strip charts were lost.Through various tests, Conoco?s two teams of experts reconstructed the probabletemperature, pressure, and flow rate readout of these strip charts. TheSecretary claims such factual and highly technical information is discoverablewithout any further showing. The Secretary also argues that his need is evenmore compelling because throughout the litigation, Conoco has controlled thesources of the investigative information and the people who generated thatinformation.??????????? TheSecretary also contends that he has shown an inability to obtain thesubstantial equivalent of the reports without undue hardship. The Secretaryargues that, in various ways, Conoco did not cooperate during discovery andthat Conoco has used its pretrial strategy to keep the cause of the explosionhidden. The Secretary emphasizes that Conoco used two sets of experts toinvestigate the accident but determined not to call these experts as witnessesat the trial. Conoco then employed a completely separate set of experts totestify at the trial. With this strategy, the Secretary claims, Conoco has keptthe real cause of the explosion from being discovered. The experts whotestified did not possess the knowledge of the crucial facts of the case, andthe experts with the knowledge of the crucial facts were protected by theattorney work product privilege. From these circumstances, the Secretary asksthe Commission to infer that Conoco would not allow any discovery directedtoward producing information that is the substantial equivalent of the reports.III??????????? Weconclude that the interlocutory appeal includes the merits as well as thetimeliness of the Secretary?s claim that the investigative reports arediscoverable. An interlocutory appeal is appropriate where a judge?s rulinginvolves an important question of law or policy and an immediate appeal of theruling may materially expedite the proceedings. Commission Rule 75(b), 29C.F.R. ? 220.75(b). In this case, if the judge erred in his initial rulingagainst discovery of the reports, the Commission later may be required toremand the case for further proceedings in order to include the reports orevidence flowing from the reports in the record. The purpose of this earlyappeal is to avoid a later remand. This purpose can be achieved only if theCommission determines the merits of the Secretary?s motion. See Quality Stamping Products Co., 79OSAHRC 28\/F11, 7 BNA OSHC 1285, 1979 CCH OSHD ? 23,520 (No. 78?235, 1979), andcases cited therein.??????????? Historically,the Commission has been reluctant to overturn the discovery orders of itsadministrative law judges. As the Commission observed in KLI, Inc., 78 OSAHRC 82\/A2, 6 BNA OSHC 1097, 1098, 1977?78 CCH OSHD?22, 350 at p. 26,937 (No. 13490, 1978).?Normally, discovery orders will be sought from the Judge rather thanfrom the full Commission, and the decision whether to allow discovery is withinthe Judge?s sound discretion.??????????? Therefore,discovery orders will only be reversed when ?the Judge?s actions constitute anabuse of discretion resulting in substantial prejudice.? Perini Corp., 77 OSAHRC 136\/A2, 5 BNA OSHC 1596, 1600, 1977?78 CCHOSHD ?21, 967 at p. 26,473 (No. 11007, 1977).??????????? Inorder to qualify for protection under Rule 26(b)(3) of the Federal Rules ofCivil Procedure[6]as trial preparation materials the reports at issue must be (1) documents ortangible things, (2) prepared in anticipation of litigation or trial, and (3)gathered by or for another party or by or for that other party?srepresentative.[7]The reports pass this three-pronged test.??????????? Clearly,the reports are tangible. In addition, the testimony at the September 25, 1979,preliminary hearing indicated that the reports were prepared in anticipation oflitigation. Immediately after the explosion, Conoco contacted its attorneys.The attorneys hired the independent team of experts and controlled Conoco?sexpert employees who performed the investigation. These experts reported to theattorneys who used the reports to prepare for the anticipated litigation. Eventhe Secretary?s attorney admitted that ?at least one of the purposes? for thereports was the anticipated litigation after the accident. Moreover, to qualifyas work product, the material need not have been prepared for any specificlitigation but only ?with an eye toward litigation.?[8]??????????? Finally,the rule is broad enough to encompass the work of persons who are notattorneys. The Supreme Court has observed,attorneys often must rely on theassistance of investigators and other agents in the compilation of materials inpreparation for trial. It is therefore necessary that the doctrine protectmaterial prepared by agents for the attorney as well as those prepared by theattorney himself.[9]\u00a0??????????? Thetestimony at the preliminary hearing clearly indicated that the reports weredeveloped in anticipation of litigation by the two teams of experts at thedirection of Conoco?s attorneys. Therefore, the reports are attorney workproduct.??????????? Thefact that the reports qualify under this three-pronged test does not mean thatthe documents are not discoverable. The work product immunity is qualified.Generally, the opinions and mental impressions of attorneys and their agentsare entitled to an almost absolute protection.[10] However, trialpreparation material which does not contain opinions or mental impressions canbe discovered ?upon a showing that the party seeking discovery has substantialneed of the materials . . . and that he is unable without undue hardship toobtain the substantial equivalent of the materials by others means.?[11]??????????? Whatconstitutes a sufficient showing under Rule 26 is difficult to pinpoint anddepends on the facts of a given case. A fine line exists between the legitimateuse of discovery and an attorney abusing the discovery process to reap thebenefits of opposing counsel?s hard work. The Federal Rules provide for liberaldiscovery but ?each side should be encouraged to prepare independently, and . .. one side should not automatically have the benefit of the detailedpreparatory work of the other side.?[12] Thus, the courtsgenerally consider (1) the importance of the material, (2) the difficulty ofobtaining the material from different sources, and (3) whether those differentsources would supply the substantial equivalent of the material sought.[13]??????????? Obviously,the reports are relevant. Moreover, the Secretary has claimed that he needs thereports for effective rebuttal because they contain highly technicalinformation available only to Conoco, and Conoco used different experts totestify at the hearing from those who prepared the reports. Also, theSecretary?s experts indicated in their testimony at the hearing on the meritsthat they need the reconstructed strip charts to give a knowledgeable opinionon the cause of the explosion. Therefore, the Secretary has demonstrated a needfor the material.??????????? However,some of the Secretary?s claims could have been presented at the preliminaryhearing. Indeed, the Secretary has stated in his brief on review that no newevidence arose between the preliminary hearing and the hearing on the merits.However, the Secretary presented no evidence at the preliminary hearing.??????????? Moreover,the courts have consistently held that the Federal Rules require more than ashowing of relevance and importance to compel the discovery of work product.[14] The Secretary has notdemonstrated why he was unable to obtain substantially equivalent informationthrough depositions and interrogatories.??????????? TheSecretary knew long before the preliminary hearing that a second set of expertswould testify and that Conoco consistently contended that the reports were notdiscoverable because they were attorney work product. After filing thecomplaint, the Secretary directed a document production request andinterrogatories to Conoco concerning materials developed by Conoco during itsinvestigation. Conoco answered this discovery months before the preliminaryhearing by identifying the investigative reports and the persons who preparedthem. It was thus clear at a very early stage of the discovery process that theinvestigative reports existed and would play an important role in thelitigation. But despite his early knowledge of the reports and Conoco?sconsistent claims that the reports were protected by the attorney work productdoctrine, the Secretary never sought to depose any of Conoco?s expertemployees.[15]??????????? TheSecretary has contended that in various ways Conoco did not cooperate duringdiscovery and sought to conceal the information obtained by the teams ofexperts. The Secretary would have us infer that Conoco?s expert employees wouldbe hostile to any depositions by the Secretary. However, the Secretary has notdemonstrated this assertion beyond stating it since the Secretary made noattempt at alternative discovery. Courts have required that a party demonstratethat other discovery methods would be insufficient[16] and have held that a partmust first make some attempt at alternative discovery before it requests anattorney to turn over his work product. SeeUnited States v. Chatham City Corp., 72 F.R.D. 640 (S.D. Ga. 1976); Howard v. Seaboard Coastline Railroad Co.,60 F.R.D. 638 (N.D. Ga. 1973); Fidelity& Deposit Co. of Maryland v. S. Stefan Strauss, Inc., 52 F.R.D. 536(E.D. Pa. 1971). This has been particularly true when, as in this case, thematerial requested was clearly important in the litigation, and the people whomthe party would depose were known to the party for some time.??????????? Courtshave adhered to this requirement that a party make a specific showing of unduehardship even in complex cases. As the Court in Hercules, Inc. v. Exxon Corp., 434 F. Supp. 136, 153 (D. Del.1977), stated:Defendant has not made any showing ofsubstantial need or undue hardship in obtaining the substantial equivalent ofthe materials by other means. The Court recognizes the difficulty of makingsuch a showing without having access to the documents themselves. However, theCourt sees no reason why the defendant would not be able to obtain relevantinformation contained in those documents through other discovery means, such asdepositions and interrogatories. Accordingly, production will be denied.???????????? TheSecretary has had ample opportunities to develop his case without the workproduct of Conoco?s attorneys. At the same time that Conoco was investigatingthe explosion, the Secretary conducted a four-month investigation during whichthe Secretary took pictures, interviewed employees and conducted tests. Conocomade its employees available for interviews and also made its facilitiesavailable during OSHA?s four-month inspection. Conoco contacted OSHA any timeit disassembled a part of its facilities so that OSHA officials could bepresent and photograph the scene if they wished. Moreover, the record indicatesthat the Secretary has been able to obtain, through discovery, a substantialamount of the material he has requested. While the Secretary has been unable toobtain the reconstructed strip charts and the investigative reports, he diddiscover the names of the experts who prepared this material. And there is nobasis to conclude that the Secretary could not have deposed Conoco?s expertsand thereby developed the substantial equivalent of the material he now seeks.??????????? Thus,although the Secretary has shown the two investigative reports would be usefulin the preparation of his case, he has expressed only the broadest generalitiesto indicate why he is unable to obtain substantially equivalent informationthrough alternative discovery methods. He has offered almost no proof tosubstantiate this general claim.??????????? Admittedly,the case is complex, and the Secretary therefore may have decided thatdepositions could not provide the substantial equivalent of the writtenreports. However, the Secretary has made no such showing to support hisdecision. Federal Rule 26(b)(3) requires such a showing. Therefore, under thecircumstances, we cannot find that Judge Cronin?s ruling constituted an abuseof discretion. That ruling is therefore affirmed, and the case is remanded forfurther proceedings.?SO ORDERED?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: APR 27 1981\u00a0COTTINE, Commissioner, dissenting:??????????? Themajority concedes that the Secretary has demonstrated a substantial need forthe strip chart reconstruction data to prove certain claims arising out of thecatastrophic oil refinery explosion and fire involved in this case.Nevertheless, the majority upholds the judge?s denial of access to this data onthe grounds that: (1) it was prepared in anticipation of litigation within themeaning of Fed.R.C v.P. 26(b)(3), and (2) the Secretary has failed to show thathe could not have obtained the substantial equivalent of that information byother means, specifically depositions. However, depositions would be an undulyburdensome procedure not calculated to obtain information equivalent to thedata sought by the Secretary. Indeed, any discovery device other thanproduction of the documents would be an inadequate substitute for the necessaryscientific data. Therefore, the Secretary is entitled to the strip chartreconstructions. He also is entitled to destructive testing data prepared forConoco, for which he has also shown a specific need and lack of alternativesources. See Fed.R.Civ.P. 26(b)(3), (4).[17] Consequently, it was anabuse of discretion for the judge to deny the Secretary all access to thesedocuments.I??????????? TheSecretary seeks disclosure of two investigative reports concerning theexplosion at Conoco?s facility. One report was prepared for the company by anexpert team of Conoco employees and another report by a team of independentexperts. The Secretary contends that the reports are not attorney work-productbut rather accident reports that any responsible corporation would haveprepared under the circumstances. However, the expert investigation leading tothese reports was conducted by Conoco?s attorneys in a manner specificallycalculated to preserve the work-product privilege. As a result, the majorityproperly concludes that the data are subject to the qualified work-productprivilege. Accordingly, facts contained in the reports must be disclosed onlywhere the Secretary has shown both a need for them and no practical alternativemeans of obtaining them.[18]??????????? TheSecretary has attempted to show a specific need and the lack of practicalalternative sources for obtaining two types of data that have been withheld.The first category of data is comprised of reconstructions of the probabletemperature, pressure and flow rates in the catalytic polimerization unit(?CPU?), where the fatal explosion occurred.[19] The temperature, pressureand flow rate data for the CPU were routinely measured by instruments thatrecorded the data on strip charts. Some of the strip charts covering the periodof the explosion are missing, and Conoco?s experts attempted to reconstruct theprobable levels based on the strip charts that are available. The secondcategory of data is comprised of the results of destructive testing performedfor Conoco on certain equipment in the CPU.??????????? Throughoutthe proceedings below the Secretary made numerous timely requests for thisinformation. It should be noted that prehearing discovery was extensive in thiscase and both parties have been diligent in their efforts to prepare theircases for a hearing on the merits. The Secretary?s requests for this specificinformation began at the outset of these proceedings. Conoco originallyinstructed its attorneys to cooperate fully with the Secretary in investigatingthe explosion and fire. Apparently in reliance on that policy, the Secretary?sarea director requested pressure, temperature, and flow rate charts regardingthe CPU and other relevant information in November, 1978?several weeks beforeissuance of the citations. On December 5, 1978, Conoco indicated by letter thatthe information would be forthcoming. Yet, some of the strip charts were notturned over until shortly before the hearing on the merits in October, 1979. Inthe meantime, the Secretary had filed:(1) a timely request for production of alldocuments relating to the incident?Cohoco refused to comply with this request,claiming that the documents were attorney work-product;?(2) timely interrogatories to determinethe nature and authorship of each document?Conoco also substantially failed tocomply with this request;?(3) a timely motion to compel answers tothose interrogatories?Conoco complied on July 19, 1979, after the judge enteredan order to compel; and?(4) a timely motion to compel productionof selected documents out of the hundreds identified by Conoco?the judgegranted this motion in large part.???????????? Confrontedwith Conoco?s work product objections, the Secretary made numerous attempts toshow both his need for the requested information and his lack of alternativesources for the data. In his motion to compel production, filed on September 6,1979, the Secretary stated that he ?has substantial need for them [thespecified materials] in the preparation of his case and cannot obtain theirsubstantial equivalent by other means.? At the hearing on the motion, theSecretary?s counsel questioned a Conoco attorney who appeared as a witness forthe company to determine ?whether we have a situation where we are unable toobtain this [sic] substantial equivalent to what is in these books throughother means.? Hearing Transcript, September 25, 1979, at 83. The Secretary?scounsel elicited specific evidence at that hearing that the investigativereports contained the strip chart reconstructions. This was the firstconfirmation on the record that the reports contained the reconstructions. TheSecretary?s counsel also elicited the fact that destructive testing had beenperformed on Conoco?s behalf. Six days after the motion hearing, the Secretarysubmitted an affidavit by his expert witness, A. J. Qeinlivan. This affidavitspecified the missing strip charts that Quinlivan needed in order to determinethe internal pressure of sub-units of the CPU before the explosion. He alsostated that the results of destructive testing could not be duplicated by himand could be vital to rendering an informed opinion in the case. The judgeconsidered these posthearing submissions untimely despite the fact that theywere received in advance of his decision on the motion.??????????? Thejudge denied the Secretary?s motion to compel as to this information. Infurther pursuit of the data, the Secretary filed a subpoena duces tecum torequire Conoco to bring the investigative reports, among other documents, tothe hearing on the merits. The judge quashed the subpoena insofar as it relatedto the reports. Finally, the Secretary renewed his request for the reports atthe completion of his rebuttal evidence. It is the judge?s denial of thatrequest that is specifically before us.II??????????? Todeny the Secretary access to this scientific data concerning the explosion andfire in support of his claims of violations of the Act is contrary to theFederal Rules of Civil Procedure. The Supreme Court stated the controllingconsideration in Hickman v. Taylor,329 U.S. 495 (1947):Mutual knowledge of all the relevant factsgathered by both parties is essential to proper litigation. To that end, eitherparty may compel the other to disgorge whatever facts he has in his possession.?329 U.S. at 507. ?The purpose of our modern discoveryprocedure is to narrow the issues, to eliminate surprise, and to achievesubstantial justice.? Greyhound Lines,Inc. v. Miller, 402 F.2d 134, 143 (8th Cir. 1968). Furthermore, thediscovery rules are to be liberally construed to achieve their purpose. Hickman v. Taylor, supra; Schlagenhauf v.Holder, 379 U.S. 104, 114?15 (1964).??????????? Themajority affirms the judge?s refusal to order disclosure on the rationale that,despite all the Secretary?s efforts to obtain the information involved, theSecretary failed to prove that he could not have obtained the information byother means, specifically depositions. Depositions are an inherently inadequatemeans of obtaining the technical details of a complex scientific study writtenmany months earlier by a large group of experts. The detailed informationsought would require the deponent to read specific data from the report intothe record. This would be an unduly burdensome means of disclosure.Furthermore, if the deponent referred to the study to refresh his or herrecollection, the study would be subject to disclosure. Thus, the depositionprocedure would simply waste time and resources and end with disclosure of theidentical material the Secretary now seeks. Moreover, where time has probablydimmed the witnesses? memories of the facts, disclosure of the pertinentdocuments will be required unless the party seeking discovery is responsiblefor the time lapse. See Southern RailwayCo. v. Lanham, 403 F.2d 119, 126?31 (5th Cir. 1968), rehearing denied, 408 F.2d 348 (1969); Reynolds v. United States, 192 F.2d 987, 991?92 (3d Cir. 1951), rev?d on other grounds, 345 U.S. 1(1953); Guilford Nat?l Bank of Greensborov. Southern Railway Co., 297 F.2d 921 (4th Cir. 1962); See generally, 8Wright & Miller, Federal Practice andProcedure: Civil ? 2025 at pp. 218?24 (1970). The same rule applies when awitness?s recollections are unreliable for other reasons. See Southern Railway Co. v. Lanham, supra; See also AdvisoryCommittee Note to Rule 26(b)(3), 48 F.R.D. 485, 501 (1969).??????????? Othersubstitute means for the production of the scientific data would also beinsufficient. Where the information needed is contained in a detailedscientific study, there is no practical substitute for the report itself. Torequire interrogatories, for example, would require the Secretary to make adetailed request and Conoco to reproduce essentially a written duplicate of thestudies. This type of procedure on its face is unduly burdensome. The studiescontain the scientific data in its irreducible form.[20] Thus, the Secretary isentitled to the original documents.??????????? IIIIn denying the Secretary the necessary information,the judge acted contrary to the Commission?s rules and precedent and abused hisdiscretion. Commission Rule 66, 29 C.F.R. ?\u00a02200.66,states that it shall be the duty of the judge to assure that the facts incontroversy are fully elicited. The Commission?s role as representative of thepublic interest ?does not permit it to act as an umpire blandly calling ballsand strikes for adversaries appearing before it; the right of the public mustreceive active and affirmative protection at the hands of the Commission.? Brennan v. OSHRC (John J. Gordon Co.),492 F.2d 1027 (2d Cir. 1974), quoting ScenicHudson Preservation Conf. v. FPC, 354 F.2d 608, 620 (2d Cir. 1965), cert. denied, 384 U.S. 941 (1966). Thestrong public interest in preventing a repetition of this type of catastrophicoil refinery explosion is apparent. Moreover, the judge?s discretion should beexercised consistent with the Commission?s oft-stated preference fordeterminations on the merits. RalstonPurina Co., 79 OSAHRC 81\/E6, 7 BNA OSHC 1730, 1979 CCH OSHD ?23,897 (No.78?145, 1979); ASARCO, Inc., El Paso Div.,?? OSAHRC ??, 8 BNA OSHC 2156, 1980 CCH OSHD ?24,838 (Nos. 79?6850, etc.,1980); Duquesne Light Co., ?? OSAHRC??, 8 BNA OSHC 1218, 1980 CCH OSHD ?24,384 (Nos. 78?5034, etc., (1980). Thispreference is even more significant in a case affected with a strong publicinterest.??????????? Thejudge?s ruling here was as much an abuse of discretion as the ruling involvedin Ralston Purina Co., supra. There,the judge denied the Secretary a discovery inspection in a noise case, wherethe request came 17 days before the hearing and almost eight months after thecitation was issued. The Commission found the delay excusable based on theSecretary?s reasonable decision not to undertake the expense of an inspectionuntil after an anticipated settlement failed. We stated:The practical effect of denying discoveryinspection here is to undercut the Secretary?s case. Without expert testimony,it is doubtful that the Secretary can show the feasibility of engineeringcontrols. Thus, denying the Secretary?s motion for discovery inspection hasalready resulted in substantial prejudice to the Secretary?s case. Furthermore,delay of one month will not impair the merits of respondent?s defense.?7 BNA OSHC at 1721, 1980 CCH OSHD at p. 28,977.??????????? Here,as in Ralston Purina, the data involve matters on which expert testimony isrequired and prejudice to the Secretary from being denied access to thisimportant scientific data is obvious. Inasmuch as the Secretary proceeded in aresponsible manner to obtain this scientific data, did not delay theseproceedings, and was unable to obtain substantially equivalent material throughother means, the judge abused his discretion in denying the Secretary access tothese data.??????????? Forthe foregoing reasons I would grant the Secretary disclosure of the strip chartreconstructions and the destructive testing data and would remand the case forfurther proceedings on the merits.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 79?570 \u00a0 CONTINENTAL OIL COMPANY, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 October 4, 1979MEMORANDUM AND ORDER??????????? OnSeptember 26, 1979, an evidentiary hearing was held on the Secretary of Labor?smotion under Rule 37(a) of the Federal Rules of Civil Procedure (F.R.Civ.P.) tocompel Continental Oil Company to permit entry at Conoco?s Denver refinery forpurposes of photographing, measuring, and testing in certain areas and also tocompel Conoco to produce certain designated documents, investigative reports,and photographs. At the hearing a part of the Secretary?s motion to compel wasgranted, and entry and production of certain documents were ordered. Decisionwas reserved, however, with respect to ordering the production of twoinvestigative reports, numbers 1 and 6, and 337 photographs, pending anin-camera inspection of these items by this Judge, review of the hearingtranscript, and possible submission of additional briefs. This matter now isready for determination.??????????? Conocoresists discovery on several alternative grounds. It contends the reports andphotographs are absolutely immune to discovery by the attorney-client privilegeand also protected from discovery by the qualified immunity provided by Rules26(b)(4) or 26(b)(3), F.R.Civ.P. The Secretary, on the other hand, contendsthat he has substantial need of these items and is unable to obtain themelsewhere. Each of Conoco?s objections and the Secretary?s contentions will bediscussed below.??????????? Therecord reflects that on October 3, 1978, a major fire and explosion occurred atConoco?s Denver refinery, killing three employees, causing twenty-five milliondollars in damage to the refinery, and untold damage to the area surroundingthe refinery. Over 900 claims and several law suits have been filed againstConoco as a result of this explosion and fire.??????????? Inanticipation of litigation, Conoco?s general attorney, A. Earl Hodges, directedConoco?s Denver legal counsel, the firm of Demuth, Eiberger, Kemp and Backus,in conjunction with the Denver law firm of Walberg and Pryor, counsel forConoco?s liability and workmen?s compensation carrier, The Hartford InsuranceCompany, to conduct a special investigation into the October 3rd explosion andfire. Obviously, Conoco adopted this investigative format in an attempt to keepconfidential all of the findings and conclusions developed or acquired in thisinvestigation and insulate them from disclosure and discovery. But the factremains, Conoco ordered the investigation in anticipation of litigation.??????????? Mr.Earl Eiberger, Esq. retained a team of independent technical experts from theDenver area and secured, on special assignment, a group of Conoco engineeringexperts employed at other Conoco facilities to conduct a detailed investigationto determine the underlying causes of the explosion and fire and what stepscould be taken to prevent recurrence of similar accidents in the future. Heinstructed both groups to submit their separate reports to his law firm andmaintain these reports as ?privileged and confidential?.??????????? Themembers of the independent team of experts, their company affiliations, andareas of specialty in the investigation are as follows:Ralph J. Mangone Mangone Laboratory, Inc.Metallurgical Golden, Colorado Analysis?Robert E. Dragoo, Jr. Stearns-Roger, Inc.Control Systems Denver, Colorado Analysis?Thomas R. Morton Stearns-Roger, Inc.Process Analysis Denver, Colorado?Maurice M. Schulte Stearns-Roger, Inc.Mechanical Analysis Denver, Colorado?Robert F. Harrison Independent Prof.Engineer Explosion Rey, Colorado Analysis???????????? Membersfrom Stearns-Roger Inc., were assisted by John E. Williams, Project Supervisor.This team prepared preliminary investigative report #1 which consists ofvarious analyses, process, metallurgical, explosion, control systems, andmechanical, as well as conclusions and recommendations. Attachments to thereport include witness interviews conducted by attorneys, reports on scanningelectron microscope work, radiographic work, chemical analysis, metallurgicaltesting, relief valve examination, piping sketches, computer printouts relatingto a fluid dynamic analysis, site-path sketches, calculation work sheets, andphotographs.??????????? Preliminaryinvestigative report #6 was prepared by members of the Conoco team of experts,who were John M. Griffith, Consulting Engineer, Maintenance EngineeringDepartment; J. W. Leigh, Chief Process Engineer, Refining Division, ProcessEngineering Department; S. T. McLaury, Metallurgy Division, MaintenanceEngineering Department, and D. R. Unruh, Process Superintendent, North AmericanRefining. This report relates the events leading up to the explosion based onwitness interviews conducted by attorneys, contains a review of the process andmechanical design of the refinery unit, a computer simulation of the stabilizerand splitter, evaluations of physical evidence secured from a dismantling ofthe Cat Poly unit?s fractionating section, various analyses and conclusionsconcerning the possible causes of the explosion and fire, photographs, andsketches. The 337 photographs were taken by Mr. Griffith.??????????? Duringthe investigation, both teams worked in close cooperation, and each team used theevidence and findings generated by both teams in preparing their separatereports.??????????? Attorney-ClientPrivilege??????????? Conoco?sclaim that the investigative reports and photographs are permanently protectedfrom disclosure by the attorney-client privilege is rejected.??????????? Theprotective cloak of this particular privilege does not extend to informationwhich an attorney secures from third persons while acting for his client inanticipation of litigation. Hickman v.Taylor, 329 U.S. 495 (1947); See alsoFranks v. National Dairy Products Corp., 41 F.R.D. 234 (D. C. Tex. 1966).Therefore, report No. 1, which was prepared by non-parties, clearly is notprivileged. The attorney-client privilege also is inapplicable tocommunications from employees of a client who do not meet the ?control group?test formulated in Philadelphia v.Westinghouse Electric Corporation, 210 F. Supp. 483 (E.D. Pa. 1962). Thistest requires that the employee communicant be in a position to control or takea substantial part in a decision about any action to be taken upon the adviceof counsel, or be a member of the group having such authority. The Conoco teampreparing report #6 obviously are not members of any such ?control group?. Theyare persons who merely aided in furnishing technical information to be used asa basis for decision. See CongoleumIndustries Inc., v. GAF Corporation, 49 F.R.D. 82 (E.D. Pa., 1969).??????????? Rule26(b)(4), F.R.Civ.P.??????????? Conocoalso contends that if not protected by the attorney-client privilege bothinvestigative reports and the photographs taken by an expert may be discoveredonly by complying with the requirements of Rule 26(b)(4).??????????? Conocorepresents that it expects to call none of these experts as witnesses. Rule26(b)(4)A therefore, which reference experts who are expected to be called aswitnesses, is inapplicable. Rule 26(b)(4)B, however, provides that a party alsomay discover facts known or opinions held by an expert who has been ?retainedor specially employed? by a party in anticipation of litigation and who is not expectedto be called as a witness ?upon a showing of exceptional circumstances underwhich it is impracticable for the party seeking discovery to obtain facts oropinions on the same subject by other means?.??????????? TheJudge agrees with Conoco that the independent contractor team of experts whoprepared report #1 falls within the ambit of 26(b)(4)B because the team wasretained in anticipation of litigation, but disagrees that 26(b)(4)B isapplicable to Conoco?s own team of experts.??????????? Theunrefuted evidence establishes that both reports and the photographs wereprepared by experts. As previously noted, the record also supports a findingthat the investigation was conducted in anticipation of litigation.Furthermore, the independent team of experts obviously was ?retained?. TheConoco team, however, was not ?retained or specially employed? as those termsare used in 26(b)(4)B. They were simply expert employees of Conoco on specialassignment, a situation not contemplated by 26(b)(4)B. The Advisory Committeenotes to the 1970 Amendments of Rule 26(b)(4) make clear that in-house expertswere not intended to be covered by 26(b)(4)B. There, the Committee points outthat ?an expert who is simply a general employee of the party not speciallyemployed on the case? is excluded from the restrictive provisions of Rule26(b)(4)B dealing with those experts ?retained or specially employed? inanticipation of litigation See Rules of Civil Procedure, 48 F.R.D. 487, at 504.??????????? ProfessorGraham in Graham Discovery of ExpertsUnder Rule 26(b)(4) of the Federal Rules of Civil Procedure: Part one, AnAnalytical Study, 1976, U. Ill., L.F. 895, argues that regular employeeexperts specially assigned to work on a matter in anticipation of thelitigation are subject to discovery only as provided in Rule 26(b)(4). ThisJudge disagrees, and concurs with the analysis and conclusions in Virginia Electric & Pow. Co. v. SunShipbuilding and D.D. Co., 68 F.R.D. 397 (1975), that ?retained orspecially employed? refers only to the manner by which the experts areobtained, that generally employed employees are not covered by 26(b)(4)B, andthat expert employees are to be treated as ordinary witnesses under Rule26(b)(1).??????????? Toobtain discovery of the independent team of experts, the Secretary has theburden of showing that it is impracticable for him ?to obtain facts or opinionson the same subject by other means?. He failed to carry this substantialburden. No supporting affidavits were filed with the Secretary?s motion tocompel. The Secretary at the hearing also decided to introduce no directevidence on this issue, relying instead on argument and cross-examination ofMr. Hodges, Conoco?s general attorney.[21]??????????? Therecord reflects the Secretary conducted a four month investigation of the fireand explosion. His representatives commenced their investigation on October 3rdand concluded it on January 12, 1979. They took hundreds of photographs andconducted numerous interviews with Conoco?s employees. It is uncontradicted theConoco cooperated fully and provided the Secretary?s team of investigators withcomplete access to the refinery and its management personnel. Conoco apparentlycomplied with the Secretary?s requests for the production of 24 documents. Withrespect to other requests, Conoco represented that the documents were eithermissing or destroyed in the fire. There also is no indication whatsoever thatConoco refused any requests to conduct the same tests as performed by theindependent or Conoce experts. To the contrary, according to Mr. Hodges, theSecretary?s representatives were notified whenever dismantling of any of theequipment was to take place and were free to take photographs and make theirown evaluations. Apparently, they didn?t advantage of this opportunity, andtheir failure to do so is unexplained.??????????? Onthis record the showing required for discovery under Rule 26(b)(4)B has notbeen made, and discovery of the independent experts? report #1, therefore, mustbe denied.??????????? Rule26(b)(3), F.R.Civ.P.??????????? Althoughthe reports and photographs of the Conoco team of experts are not immune fromdiscovery by the expert opinion restrictions of 26(b)(4)B, these materialsnevertheless may be covered by the qualified immunity from discovery providedby Rule 26(b)(3). That rule provides that documents and tangible thingsprepared by a party?s agent in anticipation of litigation may be discoveredonly upon a showing that the party seeking discovery has substantial need ofthe materials in the preparation of his case and that he is unable without duehardship to obtain the substantial equivalent of the materials by other means.The burden on the party seeking discovery under 26(b)(3) obviously is not asgreat as his burden under Rule 26(b)(4). The Secretary, however, failed to meeteither burden for similar reasons.??????????? Thisrecord establishes that the Secretary had the same opportunity to develop factsand opinions concerning the October 3rd fire and explosion as did Conoco?s teamof experts. There is no indication that he was precluded from obtainingsubstantially equivalent materials through testing and seeking his own expertevaluation of these tests. His representatives apparently interviewed most ofthe same witnesses as Conco and commenced photographing at the site on October3rd.??????????? Manycourts have held that photographs, diagrams and the like are freelydiscoverable under Rule 26(b)(3) because of their uniqueness. Here, however,the Secretary?s representatives took their own photographs, some 200,throughout the same period Conoco was taking its own, thereby obtaining thesubstantial equivalent of the Conoco photographs. They also took their ownmeasurements and could have made their own diagrams or sketches.??????????? Rule26(b)(3), of course, provides protection only for ?documents and tangiblethings? and only at the discovery stage. The Courts have consistently held thatthe work product concept furnishes no shield against discovery, byinterrogatories or deposition, of the facts that a party has learned, or of thepersons from whom he has learned such facts. It is noted in this regard thatthe Secretary never sought an order to depose Conoco?s team of experts. TheSecretary, however, charges in his brief that Conoco deprived him of relevantinformation because Conoco did not answer the Secretary?s interrogatories on thebasis of ?such information as is available to the party?, as required by Rule33(a), F.R.Civ.P., namely, the information furnished by Conoco?s teams ofexperts. If true, the charge is serious. But the record contains nothing insupport of this allegation, and nothing in a review of Conoco?s responses tothe Secretary?s interrogatories indicates that Conoco failed to comply withRule 33(a).??????????? Onthis record, the Secretary has not established his right to discoverinvestigative reports #1 and #6, and the 337 photographs. His motion to compeldiscovery of these documents, therefore, is denied.SO ORDERED.?James A. Cronin, Jr.,Judge, OSHRCDated: October 4, 1979\u00a0[1] Judge Croninstated that the interlocutory appeal presented the following question:Whetherthe judge erred in ruling that the Secretary?s motion was untimely andunreasonable.[2] 29 C.F.R. ?2200.75.[3] Judge Croninlater extended the time for filing requests for discovery to June 1, 1979, butagain said that all discovery should be completed by July 19.[4] Rule 26(b)(3) ofthe Federal Rules of Civil Procedure pertains to materials generated duringtrial preparation and provides:[A]party may obtain discovery of documents and tangible things otherwisediscoverable under subdivision (b)(1) of this rule and prepared in anticipationof litigation or for trial by or for another party or by or for that otherparty?s representative (including his attorney, consultant, surety, indemnitor,insurer or agent) only upon a showingthat the party seeking discovery has substantial need of the materials in thepreparation of his case and that he is unable without undue hardship to obtainthe substantial equivalent of the materials by other means. In orderingdiscovery of such materials when the required showing has been made, the courtshall protect against disclosure of mental impressions, conclusions, opinions,or legal theories of an attorney or other representative of a party concerningthe litigation. (Emphasis added)[5] Rule 26(b)(4)(B)of the Federal Rules of Civil Procedure applies to experts used in trialpreparation and provides:Aparty may discover facts known or opinions held by an expert who has beenretained or specially employed by another party in anticipation of litigationor preparation for trial and who is not expected to be called as a witness attrial, only as provided in Rule 35(b) or upon a showing of exceptionalcircumstances under which it is impracticable for the party seeking discoveryto obtain facts or opinions on the same subject by other means.[6] See note 4 supra. Under ? 12(g) of the Act, 29U.S.C. ? 661(f), all proceedings are governed by the Federal Rules of CivilProcedure unless the Commission has adopted a different rule. See Commission Rule 2(b), 29 C.F.R. ?2200.2(b); see also Quality StampingProducts Co., supra.[7] see WRIGHT AND MILLER, FEDERAL PRACTICE AND PROCEDUTE: CIVIL ? 2024.[8] Hickman v. Taylor, 329 U.S. 495, 511(1947). See also Natta v. Hogan, 392F.2d 686 (10th Cir. 1969).[9] United States v. Nobles, 422 U.S. 225,238?9 (1975). See also MOORE?S FEDERALPRACTICE, ?26.63[8] and ?26.64[2]; WRIGHT AND MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL ? 2024.[10] In re Murphy, 560 F.2d 326 (8th Cir.1977); United States v. Leggett &Platt, Inc., 542 F.2d 655 (6th Cir. 1976).[11] Fed. R. Civ. P.26(b)(3); See also In re Murphy, 560F.2d 326 (8th Cir. 1977).[12] Fed. R. Civ. P.26, 28 U.S.C.A., Notes of Advisory Committee on Rules.[13] Id.[14] See Hickman v. Taylor, supra, at 511?2,and Guilford Nat?l. Bank v. Southern Ry.Co., 297 F.2d 921 (4th Cir. 1962).[15] Commission Rule53, 29 C.F.R. ? 2200.53, requires that a party seek permission of theCommission or the judge for depositions and interrogatories.Asubstantial question exists under Federal Rule 26(b)(4)(B) about whether theSecretary could have ever deposed Conoco?s outside experts. It is clear,however, that the Secretary could have deposed the Conoco employees whoprepared the report. Since testimony indicated that the two reports wereprepared simultaneously and to a great extent jointly, if the Secretary haddeposed the Conoco employees, it is reasonable to conclude that he would havelearned substantially the same information as if he had deposed the outsideexperts.[16] See Hercules, Inc. v. Exxon Corp., 434F. Supp. 136 (D. Del. 1977); Xerox Corp.v. International Business Mach. Corp., 64 F.R.D. 367 (S.D. N.Y. 1974); Miles v. Bell Helicopter Co., 385F.Supp. 1029 (N.D. Ga. 1974); Arney v.George A. Hormel & Co., 53 F.R.D. 179 (D. Minn. 1971).[17] The text of theserules is set forth in the lead opinion at nn. 4 & 5.[18] The provisions ofFed.R.Civ.P. 26(b)(3) and (4) apply by their terms only to discovery. See Bethlehem Steel Co., 9 BNA OSHC1321, 1330, 1981 CCH OSHD ? 25,200 at p. 31.112 (No. 12817, 1981). The specificissue before us concerns the propriety of a request for production made at thehearing on the merits after numerous pretrial discovery attempts. In United States v. Nobles, 422 U.S. 225(1975), the Supreme Court extended the attorney work-product doctrine ofHickman v. Taylor, 329 U.S. 495 (1947), to material prepared by agents of anattorney. 422 U.S. at 238?39. The Court also stated:[T]heconcerns reflected in the work-product doctrine do not disappear once trial hasbegun. Disclosure of an attorney?s efforts at trial, as surely as disclosureduring pretrial discovery, could disrupt the orderly development andpresentation of this case.Id. at 239. Thoughthe Court?s latter statement was dictum, the conclusion that the attorneywork-product privilege stated in Hickmanapplies at the trial stage is consistent with ?the public policy underlying theorderly prosecution and defense of claims.? 422 U.S. at 237?38. But see United States v. Nobles (White, J.,concurring) (the work-product doctrine is not generally applicable at the trialstage). Therefore, the showing required of the Secretary at the hearing on themerits is essentially the same showing required under Fed.R.Civ.P. 26(b)(3) and(4).[19] The investigativereports are the only known source for the reconstruction data.[20] The best evidencerule also suggests that indirect means of obtaining the technical details of acomplex scientific study are inadequate. The best evidence of a detailedscientific study is the study itself. It is well recognized that where writtenrecords constitute the primary evidence of a fact, they are of substantiallygreater probative value and reliability than secondary evidence such as summariesor non-written versions of that fact. UnitedStates v. Alexander, 326 F.2d 736 (4th Cir. 1964). See generally 4 Wigmore on Evidence ? 1179 (Chadbournrev. 1972). The best evidence rule does not apply directly here, but applyingthe theory behind the rule, the Secretary would be entitled to the studies heseeks.[21] An affidavitfiled by the Secretary six days after the evidentiary hearing was closed isconsidered untimely and has not been considered.”