UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 79–570
CONTINENTAL OIL COMPANY,
Respondent.

April 27, 1981

DECISION

Before BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners.

BY THE COMMISSION:

On December 7, 1979, Administrative Law Judge James A. Cronin certified an interlocutory appeal on whether he erred in denying the Secretary’s motion to discover two investigative reports of the Respondent, Continental Oil Company (‘Conoco’).[1] On January 7, 1980, the Commission accepted the interlocutory appeal under Rule 75[2] of the Commission Rules of Procedure. We affirm Judge Cronin’s decision and hold that the investigative reports are attorney work product and are not discoverable.

On October 3, 1978, an explosion and fire occurred at Respondent’s refinery in Denver, Colorado. As a result of the explosion, three employees were killed, twelve persons were hospitalized and extensive damage was done to the Conoco plant and surrounding area.

Within hours of the tragedy, several investigations were started. One investigation was conducted by officers of the Occupational Safety and Health Administration (‘OSHA’). This investigation lasted approximately four months and consisted of numerous inspections, tests, interviews and requests for documents. By February 1979, 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, 29 U.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 of the explosion. One of the investigations was conducted by an independent team of experts specifically hired by Conoco’s attorneys to investigate the Denver refinery explosion. The second investigation was conducted by expert Conoco employees. Both sets of experts performed their research under the supervision of Conoco’s attorneys. Each team reported their findings directly to the attorneys and no one else. The attorneys used the findings to advise Conoco about the litigation arising from the explosion. Both teams of experts produced reports which are the subject of this appeal.

Before the hearing on the merits, the secretary and Conoco conducted lengthy discovery, concerning, among other things, the two investigative reports. Before discovery began, Judge Cronin issued a discovery order. The order said that requests for documents, inspection and interrogatories should be made by April 27, 1979, and that all discovery should be completed by July 19, 1979.[3] On April 27, 1979, the Secretary requested all documents relating to Conoco’s investigation of the explosion. Conoco refused, claiming that the documents were protected by the attorney work product doctrine. On May 14, 1979, the Secretary served Conoco with a set of interrogatories which included a request to identify any documents pertaining to the explosion, the number of pages in each, who prepared the documents and a description of the contents of the documents. Conoco gave certain general information concerning these documents, including the names of the persons who prepared the documents, but Conoco claimed that the other requests for specific information were unnecessary and burdensome. On July 6, 1979, Judge Cronin ordered Conoco to identify by name all of the investigative material it had developed pertaining to the explosion and describe the contents of each document. Conoco identified the documents, including the two investigative reports, at a pretrial conference on July 19, 1979.

On August 24, 1979, the Secretary requested certain investigatory documents. Conoco refused, saying that under Judge Cronin’s discovery order the Secretary’s request was untimely. Subsequently, the Secretary moved to compel discovery of the material including the investigative reports. Conoco claimed the reports were attorney work product, explaining that the reports had been prepared by request of its attorneys, in preparation for the anticipated litigation, and that Conoco was not planning to use the experts who prepared the reports as witnesses at the hearing.

Judge Cronin held a preliminary hearing on September 25, 1979, to determine whether Conoco should produce the two investigative reports. Only Conoco presented evidence. After weighing the evidence presented at the hearing and viewing the reports in camera, Judge Cronin determined that the reports were attorney work product and that the Secretary had not made the requisite showing to obtain discovery under Rule 26 of the Federal Rules of Civil Procedure. Judge Cronin found that the Secretary had failed to meet his burden under Federal Rule 26(b)(3) to show both a ‘substantial need’ for the report prepared by Conoco’s expert employees and ‘the inability to obtain the substantial equivalent without undue hardship.’[4] Judge Cronin further concluded that the report prepared by the team of independent experts who would not testify at the hearing was governed by Federal Rule 26(b)(4)(B) and that the Secretary had not made a showing of ‘exceptional circumstances’ under that Rule.[5] Therefore Judge Cronin denied the Secretary’s motion to compel discovery of the investigative reports.

Beginning October 22, 1979, a hearing on the merits was held. At the close of his rebuttal case on November 15, 1979, the Secretary renewed his request for the reports. The Secretary contended that the record as a whole demonstrated ‘exceptional circumstances’ and ‘substantial need’ and therefore the reports should be discoverable.

No November 16, 1979, at the hearing, Judge Cronin ruled that the Secretary’s request was untimely and unreasonable. Judge Cronin essentially repeated the findings of his earlier memorandum decision and ruled that the reports were not discoverable. He also noted that the Secretary could have deposed Conoco’s expert employees but inexplicably chose not to do so. However, to avoid a later remand if his ruling should be reversed by the Commission, On December 7, 1979, Judge Cronin certified an interlocutory appeal. The certification of the appeal stated:

The ruling denies the Secretary access to relevant evidence on the grounds his motion to produce was untimely and unreasonable. The ruling concludes the Secretary should have moved to produce before resting his direct case and not waited until his rebuttal. The following question, therefore, is presented:

Whether the judge erred in ruling that the Secretary’s motion was untimely and unreasonable.

In its brief to the Commission, Conoco contends that the only question before the Commission is whether the Administrative Law Judge abused his discretion by denying the Secretary’s motion, made at the end of his rebuttal, to compel discovery of the two investigative reports on the basis of the motion’s untimeliness. Conoco does not believe the question presented by the interlocutory appeal is whether the reports are discoverable. In general, Conoco argues that the Secretary failed to take advantage of the ample opportunities for discovery in this case and that his motion to compel discovery, coming late in the hearing, was untimely.

Conoco notes that judges are usually given great discretion in controlling discovery. The Secretary, Conoco contends, was given many opportunities for discovery beyond the original cut-off dates for discovery. Clearly, the judge concluded that to give the Secretary one more chance at such an advanced stage in the proceedings would unduly burden the efficient administration of this case. Therefore, Conoco argues, the judge’s determination should be affirmed.

Although Conoco contends this appeal does not encompass the merits of the discovery order, its brief also addresses these issues. Conoco argues that the reports are attorney work product and privileged from discovery under Rule 26(B)(3) of the Federal Rules of Civil Procedure. Conoco contends that the evidence clearly shows the reports were prepared in anticipation of litigation and not in the ordinary course of business. In addition, Conoco claims that the Secretary has failed to demonstrate the substantial need and undue hardship which would permit discovery of the reports under Federal Rule 26(b)(3) and has failed to demonstrate ‘exceptional circumstances’ under Federal Rule 26(b)(4)(B).

In his brief, the Secretary argues that his motion is not untimely because it came at the earliest possible time when the evidence showed that a substantial need under Federal Rule 26(b)(3) and exceptional circumstances under Federal Rule 26(b)(4)(B) existed to compel discovery of the reports. The Secretary claims that ‘[t]he record as a whole demonstrates that complainant has a substantial need of the factual portion of the two documents and has been unable to obtain such facts by other means.’

On whether the material constitutes attorney work product, the Secretary argues for a narrow interpretation of that privilege. The Secretary admits that the mental impressions and opinions of Conoco’s attorneys are clearly protected as attorney work product under the Federal Rules. However, the Secretary is only requesting the factual portions of the reports and not any legal opinions or conclusions of Conoco’s attorneys. In addition, the reports were prepared by experts rather than the attorneys. According to the Secretary, the attorney work product privilege does not apply to the work of such experts.

The Secretary also contends that the reports were not prepared in anticipation of litigation but rather in the regular course of business. After the explosion, Conoco prepared the reports in a way any responsible company would investigate such a fatal accident. Therefore, in the Secretary’s view, the reports are discoverable since the work product privilege does not apply to any documents prepared in the regular course of business.

The Secretary also argues that even if the Commission should find that this material is work product, he has shown a substantial need for the material. The Secretary claims that the reports are essential to his case because they contain information developed by Conoco’s process superintendent during the two to three weeks immediately after the accident. Further, all of the information in the reports was compiled long before the Secretary’s experts were able to view the site of the explosion. The reports contain the results of destructive testing and reconstructed strip charts. Strip charts monitored the performance of an operating unit in Conoco’s plant, the catalytic polymerization unit, up until the explosion. After the explosion, certain strip charts were lost. Through various tests, Conoco’s two teams of experts reconstructed the probable temperature, pressure, and flow rate readout of these strip charts. The Secretary claims such factual and highly technical information is discoverable without any further showing. The Secretary also argues that his need is even more compelling because throughout the litigation, Conoco has controlled the sources of the investigative information and the people who generated that information.

The Secretary also contends that he has shown an inability to obtain the substantial equivalent of the reports without undue hardship. The Secretary argues that, in various ways, Conoco did not cooperate during discovery and that Conoco has used its pretrial strategy to keep the cause of the explosion hidden. The Secretary emphasizes that Conoco used two sets of experts to investigate the accident but determined not to call these experts as witnesses at the trial. Conoco then employed a completely separate set of experts to testify at the trial. With this strategy, the Secretary claims, Conoco has kept the real cause of the explosion from being discovered. The experts who testified did not possess the knowledge of the crucial facts of the case, and the experts with the knowledge of the crucial facts were protected by the attorney work product privilege. From these circumstances, the Secretary asks the Commission to infer that Conoco would not allow any discovery directed toward producing information that is the substantial equivalent of the reports.

III

We conclude that the interlocutory appeal includes the merits as well as the timeliness of the Secretary’s claim that the investigative reports are discoverable. An interlocutory appeal is appropriate where a judge’s ruling involves an important question of law or policy and an immediate appeal of the ruling may materially expedite the proceedings. Commission Rule 75(b), 29 C.F.R. § 220.75(b). In this case, if the judge erred in his initial ruling against discovery of the reports, the Commission later may be required to remand the case for further proceedings in order to include the reports or evidence flowing from the reports in the record. The purpose of this early appeal is to avoid a later remand. This purpose can be achieved only if the Commission determines the merits of the Secretary’s motion. See Quality Stamping Products Co., 79 OSAHRC 28/F11, 7 BNA OSHC 1285, 1979 CCH OSHD ¶ 23,520 (No. 78–235, 1979), and cases cited therein.

Historically, the Commission has been reluctant to overturn the discovery orders of its administrative 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 than from the full Commission, and the decision whether to allow discovery is within the Judge’s sound discretion.

Therefore, discovery orders will only be reversed when ‘the Judge’s actions constitute an abuse of discretion resulting in substantial prejudice.’ Perini Corp., 77 OSAHRC 136/A2, 5 BNA OSHC 1596, 1600, 1977–78 CCH OSHD ¶21, 967 at p. 26,473 (No. 11007, 1977).

In order to qualify for protection under Rule 26(b)(3) of the Federal Rules of Civil Procedure[6] as trial preparation materials the reports at issue must be (1) documents or tangible things, (2) prepared in anticipation of litigation or trial, and (3) gathered by or for another party or by or for that other party’s representative.[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 of litigation. Immediately after the explosion, Conoco contacted its attorneys. The attorneys hired the independent team of experts and controlled Conoco’s expert employees who performed the investigation. These experts reported to the attorneys who used the reports to prepare for the anticipated litigation. Even the Secretary’s attorney admitted that ‘at least one of the purposes’ for the reports was the anticipated litigation after the accident. Moreover, to qualify as work product, the material need not have been prepared for any specific litigation but only ‘with an eye toward litigation.’[8]

Finally, the rule is broad enough to encompass the work of persons who are not attorneys. The Supreme Court has observed,

attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself.[9]

The testimony at the preliminary hearing clearly indicated that the reports were developed in anticipation of litigation by the two teams of experts at the direction of Conoco’s attorneys. Therefore, the reports are attorney work product.

The fact that the reports qualify under this three-pronged test does not mean that the documents are not discoverable. The work product immunity is qualified. Generally, the opinions and mental impressions of attorneys and their agents are entitled to an almost absolute protection.[10] However, trial preparation material which does not contain opinions or mental impressions can be discovered ‘upon a showing that the party seeking discovery has substantial need of the materials . . . and that he is unable without undue hardship to obtain the substantial equivalent of the materials by others means.’[11]

What constitutes a sufficient showing under Rule 26 is difficult to pinpoint and depends on the facts of a given case. A fine line exists between the legitimate use of discovery and an attorney abusing the discovery process to reap the benefits of opposing counsel’s hard work. The Federal Rules provide for liberal discovery but ‘each side should be encouraged to prepare independently, and . . . one side should not automatically have the benefit of the detailed preparatory work of the other side.’[12] Thus, the courts generally consider (1) the importance of the material, (2) the difficulty of obtaining the material from different sources, and (3) whether those different sources would supply the substantial equivalent of the material sought.[13]

Obviously, the reports are relevant. Moreover, the Secretary has claimed that he needs the reports for effective rebuttal because they contain highly technical information available only to Conoco, and Conoco used different experts to testify at the hearing from those who prepared the reports. Also, the Secretary’s experts indicated in their testimony at the hearing on the merits that they need the reconstructed strip charts to give a knowledgeable opinion on the cause of the explosion. Therefore, the Secretary has demonstrated a need for the material.

However, some of the Secretary’s claims could have been presented at the preliminary hearing. Indeed, the Secretary has stated in his brief on review that no new evidence 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 a showing of relevance and importance to compel the discovery of work product.[14] The Secretary has not demonstrated why he was unable to obtain substantially equivalent information through depositions and interrogatories.

The Secretary knew long before the preliminary hearing that a second set of experts would testify and that Conoco consistently contended that the reports were not discoverable because they were attorney work product. After filing the complaint, the Secretary directed a document production request and interrogatories to Conoco concerning materials developed by Conoco during its investigation. Conoco answered this discovery months before the preliminary hearing by identifying the investigative reports and the persons who prepared them. It was thus clear at a very early stage of the discovery process that the investigative reports existed and would play an important role in the litigation. But despite his early knowledge of the reports and Conoco’s consistent claims that the reports were protected by the attorney work product doctrine, the Secretary never sought to depose any of Conoco’s expert employees.[15]

The Secretary has contended that in various ways Conoco did not cooperate during discovery and sought to conceal the information obtained by the teams of experts. The Secretary would have us infer that Conoco’s expert employees would be hostile to any depositions by the Secretary. However, the Secretary has not demonstrated this assertion beyond stating it since the Secretary made no attempt at alternative discovery. Courts have required that a party demonstrate that other discovery methods would be insufficient[16] and have held that a part must first make some attempt at alternative discovery before it requests an attorney to turn over his work product. See United 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, the material requested was clearly important in the litigation, and the people whom the party would depose were known to the party for some time.

Courts have adhered to this requirement that a party make a specific showing of undue hardship 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 of substantial need or undue hardship in obtaining the substantial equivalent of the materials by other means. The Court recognizes the difficulty of making such a showing without having access to the documents themselves. However, the Court sees no reason why the defendant would not be able to obtain relevant information contained in those documents through other discovery means, such as depositions and interrogatories. Accordingly, production will be denied.

The Secretary has had ample opportunities to develop his case without the work product of Conoco’s attorneys. At the same time that Conoco was investigating the explosion, the Secretary conducted a four-month investigation during which the Secretary took pictures, interviewed employees and conducted tests. Conoco made its employees available for interviews and also made its facilities available during OSHA’s four-month inspection. Conoco contacted OSHA any time it disassembled a part of its facilities so that OSHA officials could be present and photograph the scene if they wished. Moreover, the record indicates that the Secretary has been able to obtain, through discovery, a substantial amount of the material he has requested. While the Secretary has been unable to obtain the reconstructed strip charts and the investigative reports, he did discover the names of the experts who prepared this material. And there is no basis to conclude that the Secretary could not have deposed Conoco’s experts and thereby developed the substantial equivalent of the material he now seeks.

Thus, although the Secretary has shown the two investigative reports would be useful in the preparation of his case, he has expressed only the broadest generalities to indicate why he is unable to obtain substantially equivalent information through alternative discovery methods. He has offered almost no proof to substantiate this general claim.

Admittedly, the case is complex, and the Secretary therefore may have decided that depositions could not provide the substantial equivalent of the written reports. However, the Secretary has made no such showing to support his decision. Federal Rule 26(b)(3) requires such a showing. Therefore, under the circumstances, we cannot find that Judge Cronin’s ruling constituted an abuse of discretion. That ruling is therefore affirmed, and the case is remanded for further proceedings.

SO ORDERED

FOR THE COMMISSION:

Ray H. Darling, Jr.

Executive Secretary

DATED: APR 27 1981

COTTINE, Commissioner, dissenting:

The majority concedes that the Secretary has demonstrated a substantial need for the strip chart reconstruction data to prove certain claims arising out of the catastrophic oil refinery explosion and fire involved in this case. Nevertheless, the majority upholds the judge’s denial of access to this data on the grounds that: (1) it was prepared in anticipation of litigation within the meaning of Fed.R.C v.P. 26(b)(3), and (2) the Secretary has failed to show that he could not have obtained the substantial equivalent of that information by other means, specifically depositions. However, depositions would be an unduly burdensome procedure not calculated to obtain information equivalent to the data sought by the Secretary. Indeed, any discovery device other than production of the documents would be an inadequate substitute for the necessary scientific data. Therefore, the Secretary is entitled to the strip chart reconstructions. He also is entitled to destructive testing data prepared for Conoco, for which he has also shown a specific need and lack of alternative sources. See Fed.R.Civ.P. 26(b)(3), (4).[17] Consequently, it was an abuse of discretion for the judge to deny the Secretary all access to these documents.

The Secretary seeks disclosure of two investigative reports concerning the explosion at Conoco’s facility. One report was prepared for the company by an expert team of Conoco employees and another report by a team of independent experts. The Secretary contends that the reports are not attorney work-product but rather accident reports that any responsible corporation would have prepared under the circumstances. However, the expert investigation leading to these reports was conducted by Conoco’s attorneys in a manner specifically calculated to preserve the work-product privilege. As a result, the majority properly concludes that the data are subject to the qualified work-product privilege. Accordingly, facts contained in the reports must be disclosed only where the Secretary has shown both a need for them and no practical alternative means of obtaining them.[18]

The Secretary has attempted to show a specific need and the lack of practical alternative sources for obtaining two types of data that have been withheld. The first category of data is comprised of reconstructions of the probable temperature, pressure and flow rates in the catalytic polimerization unit (‘CPU’), where the fatal explosion occurred.[19] The temperature, pressure and flow rate data for the CPU were routinely measured by instruments that recorded the data on strip charts. Some of the strip charts covering the period of the explosion are missing, and Conoco’s experts attempted to reconstruct the probable levels based on the strip charts that are available. The second category of data is comprised of the results of destructive testing performed for Conoco on certain equipment in the CPU.

Throughout the proceedings below the Secretary made numerous timely requests for this information. It should be noted that prehearing discovery was extensive in this case and both parties have been diligent in their efforts to prepare their cases for a hearing on the merits. The Secretary’s requests for this specific information began at the outset of these proceedings. Conoco originally instructed its attorneys to cooperate fully with the Secretary in investigating the explosion and fire. Apparently in reliance on that policy, the Secretary’s area director requested pressure, temperature, and flow rate charts regarding the CPU and other relevant information in November, 1978—several weeks before issuance of the citations. On December 5, 1978, Conoco indicated by letter that the information would be forthcoming. Yet, some of the strip charts were not turned over until shortly before the hearing on the merits in October, 1979. In the meantime, the Secretary had filed:

(1) a timely request for production of all documents relating to the incident—Cohoco refused to comply with this request, claiming that the documents were attorney work-product;

(2) timely interrogatories to determine the nature and authorship of each document—Conoco also substantially failed to comply with this request;

(3) a timely motion to compel answers to those interrogatories—Conoco complied on July 19, 1979, after the judge entered an order to compel; and

(4) a timely motion to compel production of selected documents out of the hundreds identified by Conoco—the judge granted this motion in large part.

Confronted with Conoco’s work product objections, the Secretary made numerous attempts to show both his need for the requested information and his lack of alternative sources for the data. In his motion to compel production, filed on September 6, 1979, the Secretary stated that he ‘has substantial need for them [the specified materials] in the preparation of his case and cannot obtain their substantial equivalent by other means.’ At the hearing on the motion, the Secretary’s counsel questioned a Conoco attorney who appeared as a witness for the company to determine ‘whether we have a situation where we are unable to obtain this [sic] substantial equivalent to what is in these books through other means.’ Hearing Transcript, September 25, 1979, at 83. The Secretary’s counsel elicited specific evidence at that hearing that the investigative reports contained the strip chart reconstructions. This was the first confirmation on the record that the reports contained the reconstructions. The Secretary’s counsel also elicited the fact that destructive testing had been performed on Conoco’s behalf. Six days after the motion hearing, the Secretary submitted an affidavit by his expert witness, A. J. Qeinlivan. This affidavit specified the missing strip charts that Quinlivan needed in order to determine the internal pressure of sub-units of the CPU before the explosion. He also stated that the results of destructive testing could not be duplicated by him and could be vital to rendering an informed opinion in the case. The judge considered these posthearing submissions untimely despite the fact that they were received in advance of his decision on the motion.

The judge denied the Secretary’s motion to compel as to this information. In further pursuit of the data, the Secretary filed a subpoena duces tecum to require Conoco to bring the investigative reports, among other documents, to the hearing on the merits. The judge quashed the subpoena insofar as it related to the reports. Finally, the Secretary renewed his request for the reports at the completion of his rebuttal evidence. It is the judge’s denial of that request that is specifically before us.

To deny the Secretary access to this scientific data concerning the explosion and fire in support of his claims of violations of the Act is contrary to the Federal Rules of Civil Procedure. The Supreme Court stated the controlling consideration in Hickman v. Taylor, 329 U.S. 495 (1947):

Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession.

329 U.S. at 507. ‘The purpose of our modern discovery procedure is to narrow the issues, to eliminate surprise, and to achieve substantial justice.’ Greyhound Lines, Inc. v. Miller, 402 F.2d 134, 143 (8th Cir. 1968). Furthermore, the discovery rules are to be liberally construed to achieve their purpose. Hickman v. Taylor, supra; Schlagenhauf v. Holder, 379 U.S. 104, 114–15 (1964).

The majority affirms the judge’s refusal to order disclosure on the rationale that, despite all the Secretary’s efforts to obtain the information involved, the Secretary failed to prove that he could not have obtained the information by other means, specifically depositions. Depositions are an inherently inadequate means of obtaining the technical details of a complex scientific study written many months earlier by a large group of experts. The detailed information sought would require the deponent to read specific data from the report into the record. This would be an unduly burdensome means of disclosure. Furthermore, if the deponent referred to the study to refresh his or her recollection, the study would be subject to disclosure. Thus, the deposition procedure would simply waste time and resources and end with disclosure of the identical material the Secretary now seeks. Moreover, where time has probably dimmed the witnesses’ memories of the facts, disclosure of the pertinent documents will be required unless the party seeking discovery is responsible for the time lapse. See Southern Railway Co. 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 Greensboro v. Southern Railway Co., 297 F.2d 921 (4th Cir. 1962); See generally, 8 Wright & Miller, Federal Practice and Procedure: Civil § 2025 at pp. 218–24 (1970). The same rule applies when a witness’s recollections are unreliable for other reasons. See Southern Railway Co. v. Lanham, supra; See also Advisory Committee Note to Rule 26(b)(3), 48 F.R.D. 485, 501 (1969).

Other substitute means for the production of the scientific data would also be insufficient. Where the information needed is contained in a detailed scientific study, there is no practical substitute for the report itself. To require interrogatories, for example, would require the Secretary to make a detailed request and Conoco to reproduce essentially a written duplicate of the studies. This type of procedure on its face is unduly burdensome. The studies contain the scientific data in its irreducible form.[20] Thus, the Secretary is entitled to the original documents.

III

In denying the Secretary the necessary information, the judge acted contrary to the Commission’s rules and precedent and abused his discretion. Commission Rule 66, 29 C.F.R. § 2200.66, states that it shall be the duty of the judge to assure that the facts in controversy are fully elicited. The Commission’s role as representative of the public interest ‘does not permit it to act as an umpire blandly calling balls and strikes for adversaries appearing before it; the right of the public must receive 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 Scenic Hudson Preservation Conf. v. FPC, 354 F.2d 608, 620 (2d Cir. 1965), cert. denied, 384 U.S. 941 (1966). The strong public interest in preventing a repetition of this type of catastrophic oil refinery explosion is apparent. Moreover, the judge’s discretion should be exercised consistent with the Commission’s oft-stated preference for determinations on the merits. Ralston Purina 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). This preference is even more significant in a case affected with a strong public interest.

The judge’s ruling here was as much an abuse of discretion as the ruling involved in Ralston Purina Co., supra. There, the judge denied the Secretary a discovery inspection in a noise case, where the request came 17 days before the hearing and almost eight months after the citation was issued. The Commission found the delay excusable based on the Secretary’s reasonable decision not to undertake the expense of an inspection until after an anticipated settlement failed. We stated:

The practical effect of denying discovery inspection here is to undercut the Secretary’s case. Without expert testimony, it is doubtful that the Secretary can show the feasibility of engineering controls. Thus, denying the Secretary’s motion for discovery inspection has already 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 is required and prejudice to the Secretary from being denied access to this important scientific data is obvious. Inasmuch as the Secretary proceeded in a responsible manner to obtain this scientific data, did not delay these proceedings, and was unable to obtain substantially equivalent material through other means, the judge abused his discretion in denying the Secretary access to these data.

For the foregoing reasons I would grant the Secretary disclosure of the strip chart reconstructions and the destructive testing data and would remand the case for further proceedings on the merits.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 79–570
CONTINENTAL OIL COMPANY,
Respondent.

October 4, 1979

MEMORANDUM AND ORDER

On September 26, 1979, an evidentiary hearing was held on the Secretary of Labor’s motion under Rule 37(a) of the Federal Rules of Civil Procedure (F.R.Civ.P.) to compel Continental Oil Company to permit entry at Conoco’s Denver refinery for purposes of photographing, measuring, and testing in certain areas and also to compel Conoco to produce certain designated documents, investigative reports, and photographs. At the hearing a part of the Secretary’s motion to compel was granted, and entry and production of certain documents were ordered. Decision was reserved, however, with respect to ordering the production of two investigative reports, numbers 1 and 6, and 337 photographs, pending an in-camera inspection of these items by this Judge, review of the hearing transcript, and possible submission of additional briefs. This matter now is ready for determination.

Conoco resists discovery on several alternative grounds. It contends the reports and photographs are absolutely immune to discovery by the attorney-client privilege and also protected from discovery by the qualified immunity provided by Rules 26(b)(4) or 26(b)(3), F.R.Civ.P. The Secretary, on the other hand, contends that he has substantial need of these items and is unable to obtain them elsewhere. Each of Conoco’s objections and the Secretary’s contentions will be discussed below.

The record reflects that on October 3, 1978, a major fire and explosion occurred at Conoco’s Denver refinery, killing three employees, causing twenty-five million dollars in damage to the refinery, and untold damage to the area surrounding the refinery. Over 900 claims and several law suits have been filed against Conoco as a result of this explosion and fire.

In anticipation of litigation, Conoco’s general attorney, A. Earl Hodges, directed Conoco’s Denver legal counsel, the firm of Demuth, Eiberger, Kemp and Backus, in conjunction with the Denver law firm of Walberg and Pryor, counsel for Conoco’s liability and workmen’s compensation carrier, The Hartford Insurance Company, to conduct a special investigation into the October 3rd explosion and fire. Obviously, Conoco adopted this investigative format in an attempt to keep confidential all of the findings and conclusions developed or acquired in this investigation and insulate them from disclosure and discovery. But the fact remains, Conoco ordered the investigation in anticipation of litigation.

Mr. Earl Eiberger, Esq. retained a team of independent technical experts from the Denver area and secured, on special assignment, a group of Conoco engineering experts employed at other Conoco facilities to conduct a detailed investigation to determine the underlying causes of the explosion and fire and what steps could be taken to prevent recurrence of similar accidents in the future. He instructed both groups to submit their separate reports to his law firm and maintain these reports as ‘privileged and confidential’.

The members of the independent team of experts, their company affiliations, and areas 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

Members from Stearns-Roger Inc., were assisted by John E. Williams, Project Supervisor. This team prepared preliminary investigative report #1 which consists of various analyses, process, metallurgical, explosion, control systems, and mechanical, as well as conclusions and recommendations. Attachments to the report include witness interviews conducted by attorneys, reports on scanning electron microscope work, radiographic work, chemical analysis, metallurgical testing, relief valve examination, piping sketches, computer printouts relating to a fluid dynamic analysis, site-path sketches, calculation work sheets, and photographs.

Preliminary investigative report #6 was prepared by members of the Conoco team of experts, who were John M. Griffith, Consulting Engineer, Maintenance Engineering Department; J. W. Leigh, Chief Process Engineer, Refining Division, Process Engineering Department; S. T. McLaury, Metallurgy Division, Maintenance Engineering Department, and D. R. Unruh, Process Superintendent, North American Refining. This report relates the events leading up to the explosion based on witness interviews conducted by attorneys, contains a review of the process and mechanical design of the refinery unit, a computer simulation of the stabilizer and splitter, evaluations of physical evidence secured from a dismantling of the Cat Poly unit’s fractionating section, various analyses and conclusions concerning the possible causes of the explosion and fire, photographs, and sketches. The 337 photographs were taken by Mr. Griffith.

During the investigation, both teams worked in close cooperation, and each team used the evidence and findings generated by both teams in preparing their separate reports.

Attorney-Client Privilege

Conoco’s claim that the investigative reports and photographs are permanently protected from disclosure by the attorney-client privilege is rejected.

The protective cloak of this particular privilege does not extend to information which an attorney secures from third persons while acting for his client in anticipation of litigation. Hickman v. Taylor, 329 U.S. 495 (1947); See also Franks 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 not privileged. The attorney-client privilege also is inapplicable to communications 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). This test requires that the employee communicant be in a position to control or take a substantial part in a decision about any action to be taken upon the advice of counsel, or be a member of the group having such authority. The Conoco team preparing report #6 obviously are not members of any such ‘control group’. They are persons who merely aided in furnishing technical information to be used as a basis for decision. See Congoleum Industries Inc., v. GAF Corporation, 49 F.R.D. 82 (E.D. Pa., 1969).

Rule 26(b)(4), F.R.Civ.P.

Conoco also contends that if not protected by the attorney-client privilege both investigative reports and the photographs taken by an expert may be discovered only by complying with the requirements of Rule 26(b)(4).

Conoco represents that it expects to call none of these experts as witnesses. Rule 26(b)(4)A therefore, which reference experts who are expected to be called as witnesses, is inapplicable. Rule 26(b)(4)B, however, provides that a party also may discover facts known or opinions held by an expert who has been ‘retained or specially employed’ by a party in anticipation of litigation and who is not expected to be called as a witness ‘upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means’.

The Judge agrees with Conoco that the independent contractor team of experts who prepared report #1 falls within the ambit of 26(b)(4)B because the team was retained in anticipation of litigation, but disagrees that 26(b)(4)B is applicable to Conoco’s own team of experts.

The unrefuted evidence establishes that both reports and the photographs were prepared by experts. As previously noted, the record also supports a finding that the investigation was conducted in anticipation of litigation. Furthermore, the independent team of experts obviously was ‘retained’. The Conoco team, however, was not ‘retained or specially employed’ as those terms are used in 26(b)(4)B. They were simply expert employees of Conoco on special assignment, a situation not contemplated by 26(b)(4)B. The Advisory Committee notes to the 1970 Amendments of Rule 26(b)(4) make clear that in-house experts were not intended to be covered by 26(b)(4)B. There, the Committee points out that ‘an expert who is simply a general employee of the party not specially employed on the case’ is excluded from the restrictive provisions of Rule 26(b)(4)B dealing with those experts ‘retained or specially employed’ in anticipation of litigation See Rules of Civil Procedure, 48 F.R.D. 487, at 504.

Professor Graham in Graham Discovery of Experts Under Rule 26(b)(4) of the Federal Rules of Civil Procedure: Part one, An Analytical Study, 1976, U. Ill., L.F. 895, argues that regular employee experts specially assigned to work on a matter in anticipation of the litigation are subject to discovery only as provided in Rule 26(b)(4). This Judge disagrees, and concurs with the analysis and conclusions in Virginia Electric & Pow. Co. v. Sun Shipbuilding and D.D. Co., 68 F.R.D. 397 (1975), that ‘retained or specially employed’ refers only to the manner by which the experts are obtained, that generally employed employees are not covered by 26(b)(4)B, and that expert employees are to be treated as ordinary witnesses under Rule 26(b)(1).

To obtain discovery of the independent team of experts, the Secretary has the burden of showing that it is impracticable for him ‘to obtain facts or opinions on the same subject by other means’. He failed to carry this substantial burden. No supporting affidavits were filed with the Secretary’s motion to compel. The Secretary at the hearing also decided to introduce no direct evidence on this issue, relying instead on argument and cross-examination of Mr. Hodges, Conoco’s general attorney.[21]

The record reflects the Secretary conducted a four month investigation of the fire and explosion. His representatives commenced their investigation on October 3rd and concluded it on January 12, 1979. They took hundreds of photographs and conducted numerous interviews with Conoco’s employees. It is uncontradicted the Conoco cooperated fully and provided the Secretary’s team of investigators with complete access to the refinery and its management personnel. Conoco apparently complied with the Secretary’s requests for the production of 24 documents. With respect to other requests, Conoco represented that the documents were either missing or destroyed in the fire. There also is no indication whatsoever that Conoco refused any requests to conduct the same tests as performed by the independent or Conoce experts. To the contrary, according to Mr. Hodges, the Secretary’s representatives were notified whenever dismantling of any of the equipment was to take place and were free to take photographs and make their own evaluations. Apparently, they didn’t advantage of this opportunity, and their failure to do so is unexplained.

On this record the showing required for discovery under Rule 26(b)(4)B has not been made, and discovery of the independent experts’ report #1, therefore, must be denied.

Rule 26(b)(3), F.R.Civ.P.

Although the reports and photographs of the Conoco team of experts are not immune from discovery by the expert opinion restrictions of 26(b)(4)B, these materials nevertheless may be covered by the qualified immunity from discovery provided by Rule 26(b)(3). That rule provides that documents and tangible things prepared by a party’s agent in anticipation of litigation may be discovered only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without due hardship 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 as great as his burden under Rule 26(b)(4). The Secretary, however, failed to meet either burden for similar reasons.

This record establishes that the Secretary had the same opportunity to develop facts and opinions concerning the October 3rd fire and explosion as did Conoco’s team of experts. There is no indication that he was precluded from obtaining substantially equivalent materials through testing and seeking his own expert evaluation of these tests. His representatives apparently interviewed most of the same witnesses as Conco and commenced photographing at the site on October 3rd.

Many courts have held that photographs, diagrams and the like are freely discoverable 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 the substantial equivalent of the Conoco photographs. They also took their own measurements and could have made their own diagrams or sketches.

Rule 26(b)(3), of course, provides protection only for ‘documents and tangible things’ and only at the discovery stage. The Courts have consistently held that the work product concept furnishes no shield against discovery, by interrogatories or deposition, of the facts that a party has learned, or of the persons from whom he has learned such facts. It is noted in this regard that the Secretary never sought an order to depose Conoco’s team of experts. The Secretary, however, charges in his brief that Conoco deprived him of relevant information because Conoco did not answer the Secretary’s interrogatories on the basis of ‘such information as is available to the party’, as required by Rule 33(a), F.R.Civ.P., namely, the information furnished by Conoco’s teams of experts. If true, the charge is serious. But the record contains nothing in support of this allegation, and nothing in a review of Conoco’s responses to the Secretary’s interrogatories indicates that Conoco failed to comply with Rule 33(a).

On this record, the Secretary has not established his right to discover investigative reports #1 and #6, and the 337 photographs. His motion to compel discovery of these documents, therefore, is denied.

SO ORDERED.

James A. Cronin, Jr.,

Judge, OSHRC

Dated: October 4, 1979

[1] Judge Cronin stated that the interlocutory appeal presented the following question:

Whether the judge erred in ruling that the Secretary’s motion was untimely and unreasonable.

[2] 29 C.F.R. § 2200.75.

[3] Judge Cronin later extended the time for filing requests for discovery to June 1, 1979, but again said that all discovery should be completed by July 19.

[4] Rule 26(b)(3) of the Federal Rules of Civil Procedure pertains to materials generated during trial preparation and provides:

[A] party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. (Emphasis added)

[5] Rule 26(b)(4)(B) of the Federal Rules of Civil Procedure applies to experts used in trial preparation and provides:

A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

[6] See note 4 supra. Under § 12(g) of the Act, 29 U.S.C. § 661(f), all proceedings are governed by the Federal Rules of Civil Procedure unless the Commission has adopted a different rule. See Commission Rule 2(b), 29 C.F.R. § 2200.2(b); see also Quality Stamping Products 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, 392 F.2d 686 (10th Cir. 1969).

[9] United States v. Nobles, 422 U.S. 225, 238–9 (1975). See also MOORE’S FEDERAL PRACTICE, ¶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, 560 F.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 Rule 53, 29 C.F.R. § 2200.53, requires that a party seek permission of the Commission or the judge for depositions and interrogatories.

A substantial question exists under Federal Rule 26(b)(4)(B) about whether the Secretary could have ever deposed Conoco’s outside experts. It is clear, however, that the Secretary could have deposed the Conoco employees who prepared the report. Since testimony indicated that the two reports were prepared simultaneously and to a great extent jointly, if the Secretary had deposed the Conoco employees, it is reasonable to conclude that he would have learned substantially the same information as if he had deposed the outside experts.

[16] See Hercules, Inc. v. Exxon Corp., 434 F. 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., 385 F.Supp. 1029 (N.D. Ga. 1974); Arney v. George A. Hormel & Co., 53 F.R.D. 179 (D. Minn. 1971).

[17] The text of these rules is set forth in the lead opinion at nn. 4 & 5.

[18] The provisions of Fed.R.Civ.P. 26(b)(3) and (4) apply by their terms only to discovery. See Bethlehem Steel Co., 9 BNA OSHC 1321, 1330, 1981 CCH OSHD ¶ 25,200 at p. 31.112 (No. 12817, 1981). The specific issue before us concerns the propriety of a request for production made at the hearing 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 of Hickman v. Taylor, 329 U.S. 495 (1947), to material prepared by agents of an attorney. 422 U.S. at 238–39. The Court also stated:

[T]he concerns reflected in the work-product doctrine do not disappear once trial has begun. Disclosure of an attorney’s efforts at trial, as surely as disclosure during pretrial discovery, could disrupt the orderly development and presentation of this case.

Id. at 239. Though the Court’s latter statement was dictum, the conclusion that the attorney work-product privilege stated in Hickman applies at the trial stage is consistent with ‘the public policy underlying the orderly 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 trial stage). Therefore, the showing required of the Secretary at the hearing on the merits is essentially the same showing required under Fed.R.Civ.P. 26(b)(3) and (4).

[19] The investigative reports are the only known source for the reconstruction data.

[20] The best evidence rule also suggests that indirect means of obtaining the technical details of a complex scientific study are inadequate. The best evidence of a detailed scientific study is the study itself. It is well recognized that where written records constitute the primary evidence of a fact, they are of substantially greater probative value and reliability than secondary evidence such as summaries or non-written versions of that fact. United States v. Alexander, 326 F.2d 736 (4th Cir. 1964). See generally 4 Wigmore on Evidence § 1179 (Chadbourn rev. 1972). The best evidence rule does not apply directly here, but applying the theory behind the rule, the Secretary would be entitled to the studies he seeks.

[21] An affidavit filed by the Secretary six days after the evidentiary hearing was closed is considered untimely and has not been considered.