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.