UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY
OF LABOR, |
|
Complainant, |
|
v. |
OSHRC
DOCKET NO. 10833 |
WHEELING-PITTSBURGH
STEEL CORPORATION, |
|
Respondent. |
|
August 5, 1976
DECISION
Before: BARNAKO, Chairman; MORAN and CLEARY,
Commissioners.
CLEARY, Commissioner:
On February 4, 1972, Judge Donald K.
Duvall certified an interlocutory appeal in this case pursuant to Rule 75(c) of
the Commission’s Rules of Procedure (29 CFR § 2200.75(c)). The subject of the
appeal is Judge Duvall’s denial of the respondent’s motion to quash the
complainant’s subpoena of certain photographs pertaining to the violations
alleged in the complaint.
On September 24, 1974, an inspection of
the respondent’s plant in Mingo Junction, Ohio, was conducted by a compliance
officer (CSHO) of the Department of Labor. He was accompanied on the
‘walkaround’ by the respondent’s safety officer, two other representatives for
respondent as well as two employee representatives. During the inspection, the
CSHO photographed each condition or situation that appeared to be in violation
of the Act. The respondent’s safety officer took duplicate photographs of each
alleged violation. Based on the results of the inspection, the Secretary of
Labor issued a citation and notification of proposed penalty. A timely notice
of contest, complaint, and answer were filed by the parties.
While preparing the case for hearing,
complainant’s counsel discovered that the CSHO’s camera had malfunctioned
resulting in the loss of the photographic evidence. Discussions with the CSHO
and the employees’ representative, however, revealed the existence of duplicate
photographs in respondent’s possession. Complainant’s counsel subpoenaed the
duplicate photographs for use as evidence at the hearing. The respondent moved
to quash complainant’s subpoena. At the hearing on February 4, 1975, after
listening to arguments from both parties, Judge Duvall denied the motion to
quash. The Judge based his decision on Rule 26(b)(3) of the Federal Rules of
Civil Procedure.[1]
The respondent has presented a number of
arguments in support of its position that Judge Duvall erred in not granting
its motion to quash complainant’s subpoena. To begin with, the respondent
contends that the complainant has failed to make the necessary showing of
‘substantial need’ and inability to obtain materials which are the ‘substantial
equivalent’ as required by Rule 26(b)(3) of the Federal Rules of Civil
Procedure.
Materials prepared for litigation which
are in the possession of an opponent’s attorney will be subject to discovery if
they are (1) relevant, (2) unpriviledged, (3) essential to the preparation of
one’s and, (4) otherwise unobtainable or a substantial equivalent cannot be
obtained without undue hardship. Hickman v. Taylor, 329 U.S. 495, 511
(1947); Fed. R. Civ. P. 26(b)(3). Photographs that depict the scene or scenes
at issue and that cannot be retaken due to a probability that the scene has
changed, have traditionally been held to satisfy the requirement of the Federal
Rules of Civil Procedure and Hickman v. Taylor. They therefore are
discoverable. Boston Insurance Co., 34 F.R.D. 463 (D.Del. 1964); Helverson
v. J. J. Newberry Co., 16 F.R.D. 330 (W.D. Mo. 1954); Flynn v. J. C.
Nichols Co., 11 F.R.D. 275 (W.D. Mo. 1951); Simper v. Trimble, 9
F.R.D. 598 (W.D. Mo. 1949). After reviewing the record, we conclude that the
photographs at issue come within the rule and the cited precedents. We reject
the respondent’s contention, and find that the complainant has satisfied the
requirements necessary to order production of the materials requested.
The respondent next argues that the
photographs sought by the complainant are a privileged communication between
attorney and client. The privilege that inures to certain communications
between an attorney and his client is a narrow one, and it should be strictly
construed against those who invoke it. Goldinger v. Boron Oil Co., 60
F.R.D. 562 (W.D. Pa. 1973). The Federal District Court for Massachusetts in United
States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358–359 (D. Mass.
1950), clearly defined the essential elements of the attorney-client privilege.
It stated:
The privilege applies only if (1) the
asserted holder of the privilege is or sought to become a client; (2) the
person to whom the communication was made (a) is a member of the bar of a
court, or his subordinate and (b) in connection with this communication is
acting as a lawyer; (3) the communication relates to a fact of which the
attorney was informed (a) by his client (b) without the presence of
strangers (c) for the purpose of securing primarily either (i) an opinion
on law or (ii) legal services or (iii) assistance in some legal proceeding, and
not (d) for the purpose of committing a crime or tort; and (4) the privilege
has been (a) claimed and (b) not waived by the client (emphasis added).
This test was quoted with approval and applied in Bird
v. Penn Central Co., 61 F.R.D. 43, 46 (E.D. Pa. 1973) and Philadelphia
Housing Authority v. American Radiator & Standard Sanitary Corp., 294
F. Supp. 1148, 1150 (E.D. Pa. 1969).
In this case, while there is some question
as to whether the photographs themselves qualify as a ‘communication,’ it is
sufficient for us to note that the respondent’s agent took the photographs
while in the company of no less than five other persons or ‘strangers.’
Therefore, the confidentiality of the communication being destroyed, the
attorney-client privilege may not properly be invoked.
The respondent’s final contention, that
the photographs are attorney’s ‘work product’ privileged from discovery, is
also without merit. The ‘work product’ doctrine finds its basis in Hickman v.
Taylor, supra. The Supreme Court held, essentially, that the work done by an
attorney in the preparation of a case for litigation—that is, the work
reflected ‘in interviews, statements, memoranda, correspondence, briefs, mental
impressions, personal beliefs, and countless other tangible and intangible
ways’—should be privileged from ‘unnecessary intrusion by opposing parties and
their counsel (emphasis added).’ The essence of this doctrine is expressed in
Rule 26(b)(3) Fed. R. Civ. P.:
In ordering discovery of such materials
when the required showing has been made, the court shall protect against
disclosure of the mental impressions, conclusions, opinions, or legal theories
of an attorney or other representative of a party concerning the litigation.
We have already found that complainant has
made the ‘required showing.’ Furthermore, the photographs at issue fail to come
within the categories of ‘mental impressions, conclusions, opinions, or legal
theories of an attorney.’ Indeed, in Hughes v. Groves, 47 F.R.D. 52, 56
(W.D. Mo. 1969), the Federal District Court held that photographs ‘are not
properly part of the ‘work product’ of the lawyer.’
Moreover, section 8(e) of the Act (29
U.S.C. § 657(e)) provides representatives of both the employer and the
employees with the opportunity to accompany the CSHO during the inspection ‘for
the purpose of aiding such inspection’ (emphasis added). The disclosure of
duplicate photographs by respondent to the Secretary is fully consistent with
the essential purpose of this section.
In addition, were the situation reversed
and respondent was seeking disclosure of certain relevant photographs in the
Secretary’s possession, such would be both discoverable by the employer and
available under the Freedom of Information Act. 5 U.S.C. § 552; see Frazee
Construction Co., No. 1343, 4 OSAHRC 188, BNA 1 OSHC 1270, CCH OSHD para.
16,409 (1973).
Accordingly we affirm Judge Duvall’s
denial of respondent’s motion to quash the complainant’s subpoena, and remand
the case for further proceedings consistent with this opinion.
FOR THE COMMISSION:
William S. McLaughlin
Executive Secretary
DATED: AUG 5, 1976
BARNAKO, Chairman, Concurring:
I concur with Commissioner Cleary that
Judge Duvall properly denied Respondent’s motion to quash the Secretary’s
subpoena. I do so reluctantly, however, because I am struck by the element of
unfairness that results. Although the Secretary was unable to produce even a single
photograph of his own for use in proving his case against Respondent, he is
allowed to capitalize on Respondent’s diligence in order to accomplish that
same end. Respondent could be adversely affected on account of its diligence,
and the Secretary could benefit in spite of his blunder.
Nevertheless, Federal Rule 26 clearly
dictates the legal conclusion in this case. The photographs do not fall within
the attorney-client privilege and do not represent the work product of an
attorney. Because the photographs were taken in the presence of strangers, the
element of confidentiality required to establish the attorney-client privilege
is absent. Also, the photographs cannot be regarded as attorney work product
because they surely do not represent the ‘mental impressions, conclusions,
opinion, or legal theories of an attorney,’ as required by Rule 26(b)(3).
To re-emphasize a point made in the
majority opinion, however, these photographs would also have been discoverable
if they were in the hands of the Secretary and sought by Respondent. The
Secretary will be bound by the same rules he invokes on his own behalf.
Similarly discoverable would be other material in the Secretary’s possession
such as the non-privileged reports and memoranda leading to a determination that
an alleged violation had occurred and that a citation should issue.
MORAN, Commissioner, Concurring:
I agree that Judge Duvall properly denied
respondent’s motion to quash complainant’s subpoena. I also agree with
Commissioner Cleary’s conclusion that the photographs are not protected by the
attorney-client privilege.
Although it is appropriate for the
Commission to rely on Rule 26(b)(3) of the Federal Rules of Civil Procedure to
determine whether a subpoena should be quashed under Commission Rule 55(b),[2] I consider it unnecessary
to do so in the instant case because there is no basis for concluding that the
requested photographs were prepared in anticipation of litigation. Such an
assumption is highly speculative and not supported by the record. There is
nothing to indicate that these photographs were anything other than records
made and kept in the regular course of business. Respondent duplicated the
photographs taken by the inspector as the result of advice given by its counsel
that this process be followed as a regular practice whenever its facilities
were inspected by enforcement officers of any regulatory agency. Consequently,
the lead opinion’s reliance upon Hickman v. Taylor, 329 U.S. 495 (1974)
and Rule 26(b)(3), Federal Rules of Civil Procedure, is unnecessary.
Finally, I do not consider it appropriate
for the Commission to apologize for its action in following the law in this
case as Chairman Barnako does in his concurring opinion.
[1] Under Commission Rule 2(b), the Federal Rules of Civil Procedure apply in the absence of a specific Commission rule.
[2] 29 C.F.R. §
2200.55(b). The rule provides for quashing a subpoena under two specified
conditions or ‘for any other reason sufficient in law’ which indicates that the
subpoena is invalid.