“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 4385 REYNOLDS METALS CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0June 14, 1978DECISIONBefore CLEARY, Chairman;BARNAKO, Commissioner:BARNAKO, Commissioner:??????????? This case is again before the Commission following JudgeJerry Mitchell?s order dismissing a complaint and vacating a citation whichcharged Reynolds with a failure to utilize feasible engineering oradministrative controls to reduce noise levels to within the limits permittedby 29 C.F.R. ? 1910.95. Previously, this case was before the Commission oninterlocutory appeal of the Judge?s order denying the Secretary?s motion fordiscovery through entry upon land. At that time a divided Commission held thatalthough the Secretary was entitled to discovery, he should be restricted tothe use of Federal experts to conduct the discovery inspection because Reynoldsasserted it had trade secrets which might be revealed if the inspection wasconducted by an outside expert and because the Secretary had not shown goodcause why it was necessary to use outside experts. Reynolds Metals Co.,3 BNA OSHC 1749, 197576 CCH OSHD para. 20,214 (No. 4385, 1975) (?Reynolds I?).For the reasons that follow we again remand for further proceedings consistentwith this opinion.??????????? This case has had a protracted history involving adispute over the Secretary?s pre-hearing attempt to discover informationrelevant to the allegedly excessive noise levels at Reynolds? Haywood,California can manufacturing facility. A representative of the Secretaryinspected the Haywood plant in July, 1973. In August, 1973, the Secretaryissued Reynolds a citation alleging a failure to comply with the noisestandard, ? 1910.95(b)(1),[1] at five locations in itsplant. Following Reynolds? timely notice contesting the citation and itssubsequent refusal to allow discovery by entry upon land, the Secretary movedto allow entry by one or more outside experts into Reynolds? plant, for the purposeof discovering facts regarding whether feasible engineering controls exist toreduce noise in the plant.[2] The trust of theSecretary?s motion was that he was entitled to discovery as a matter of right.He argued that Rule 34 of the Federal Rules of Civil Procedure authorized therequested discovery through Commission Rule of Procedure 2200.2(b). Supra note2. He further contended that the information sought was relevant to the subjectmatter of the action and that he was not required to show good cause in orderto obtain discovery. The Secretary argued that nothing in the OccupationalSafety and Health Act of 1970 (29 U.S.C. ? 651 et seq., ?the Act?) or in theFourth Amendment precluded discovery. Next, he alleged that Reynolds failed tospecify how the requested discovery would, as it contended, constitute aburdensome and oppressive intrusion. Finally, the Secretary noted that Reynoldshad available a remedy under Rule 26(c) of the Federal Rules of Civil Procedurewhich it had not sought. That is, for good cause shown, it could have sought aprotective order against what it considered burdensome or oppressive aspects ofany discovery request.??????????? Reynolds opposed the motion on the grounds that 1) thediscovery request was an unlawful attempt to conduct a post-citation inspectionof Reynolds? plant; 2) the Act did not permit witnesses to enter Reynolds?workplace; 3) the Commission?s Rules of Procedure did not permit the requesteddiscovery; 4) the discovery request was broad, vague, and ambiguous and accordinglyviolated the Act; 5) the discovery request established that the citation wasimproperly issued; and 6) inasmuch as Reynolds has a proprietary interest inits machinery, the discovery request violated Reynolds? rights under ? 15 ofthe Act which provides for protecting the confidentiality of trade secrets.Infra note 4.??????????? Judge Mitchell denied the Secretary?s motion in itsentirety. He also refused to certify the case for interlocutory appeal.Pursuant to Commission Rule 2(b) the Secretary then petitioned the Commissionfor special permission to appeal the denial of his discovery request.??????????? In his petition for special permission to appeal theSecretary continued to expend the majority of his efforts maintaining that hehad an unbridled right to the requested discovery. However, he also noted thatReynolds had raised before Judge Mitchell the question of protecting itsalleged proprietary interests. The Secretary commented that Reynoldsnevertheless did not claim that trade secrets were involved. In addition, theSecretary alleged that Reynolds had not attempted to make any showing by way ofaffidavit or sworn testimony to the effect that trade secrets were involved.??????????? The Commission granted interlocutory appeal and theproceedings were stayed pending the Commission?s disposition of the appeal. Ingranting the appeal we ordered that Reynolds could have an opportunity to filea statement in opposition to the Secretary?s memorandum in support of hisrequest for special permission to appeal. The Secretary filed nothing furtherand we also denied his subsequent request to respond to Reynolds? statement inopposition.??????????? In its statement in opposition Reynolds continued toargue primarily that the Secretary had no right to the requested discovery. Itdid submit, however, an affidavit of its vice-president and general manager ofReynolds? can division which stated that Reynolds was a pioneer in thedevelopment of aluminum cans and that its present market position depended onkeeping its processes secret.??????????? As noted above, the Commission, in Reynolds I,granted the Secretary?s motion subject to his use of Federal employees ratherthan outside experts to conduct the discovery inspection. In doing so I statedin the lead opinion my belief that the Secretary could locate a qualifiedFederal expert in noise control who, as a Federal employee, would be subject tothe sanctions of 18 U.S.C. ? 1905 for the unlawful disclosure of confidentialinformation.[3]The case was then remanded for further proceedings.??????????? Following the remand the Judge entered on order grantingthe Secretary?s motion for entry upon Reynolds? land but limiting entry to aFederal employee. Pursuant to the Commission decision in Reynolds I and theJudge?s order, the Secretary conducted a search of 29 Federal agencies for aqualified noise expert and reported to Judge Mitchell that he could find noavailable Federal expert equivalent in education and experience to the averageoutside expert he had previously used. The Secretary thereupon moved that theJudge permit the use of outside experts to conduct the discovery inspection.The Judge refused to vacate his previous order limiting entry to a Federalemployee and dismissed the case upon the Secretary?s statement that he wastherefore unable to proceed. The Secretary thereafter petitioned for review andreview was granted.??????????? In his brief on review of the Judge?s order dismissingthe citation and complaint the Secretary concedes that Judge Mitchell was boundby Reynolds I and had no alternative but to dismiss the case upon theSecretary?s contention that he was unable to proceed under the terms of thatdecision. However, the thrust of the Secretary?s contentions have now shiftedfrom the question of his right to inspect to the issue of the manner ofinspection where trade secrets have been alleged. While out questioning thelegitimacy of Reynolds? proprietary interest claim, the Secretary now contendsthat any restriction on discovery cannot be based upon a mere unsupportedassertion that trade secrets exist. He argues that Reynolds, as the partyrequesting discovery limitations on the grounds of trade secrets, has theburden of establishing their existence. And in order to meet this burden theSecretary contends that Reynolds must introduce specific facts which establish thatthe information sought actually involves trade secrets. Furthermore, he arguesthat the Commission erred in requiring the Secretary to show good cause as towhy he should not be limited to using a Federal expert to conduct theinspection. The Secretary contends that, assuming trade secrets are intertwinedwith information sought in discovery, the trade secrets privilege must yieldif, on balance, the Commission determines that the competing interests at stakein the litigation do not justify the withholding of information. The protectionof workers from excessive noise, the Secretary asserts, outweighs Reynolds?interest in protecting its trade secrets, and the use of the best availableexpert to conduct the discovery inspection is essential to enable the Secretaryto prove a complex noise case and thereby secure abatement of a noiseviolation. In any event, the Secretary argues that even if trade secrets existthat warrant protection, the proper safeguard is an order binding an outsideexpert to confidentiality, not a Federal employee restriction. Finally, theSecretary contends that, even if ? 15 of the Act[4] authorized the Commissionto impose a Federal employee restriction, such a restriction is unreasonable inthis case because a survey of Federal agencies indicate a qualified Federalnoise expert is unavailable.??????????? Based on the foregoing arguments, the Secretary requeststhat the case be remanded in order for Reynolds to make a proper showing on itstrade secrets claim and, if sustained, for the Judge to then issue anappropriate order allowing the discovery inspection to be conducted by anoutside expert but binding the outside expert to confidentiality.??????????? In its review brief urging affirmance Reynolds arguesthat the only issue is whether, following the Secretary?s refusal to proceed,the Judge abused his discretion by dismissing the case. In Reynolds? view it isthe law of the case that the Secretary must use a Federal employee to conductany discovery inspection. Therefore, according to Reynolds, when the Secretarystated he could not proceed under this limitation, the Judge properly dismissedthe case. Reynolds also contends that the Secretary cannot now dispute theexistence of trade secrets because he failed to raise the issue of theirexistence either before the Judge or when the case was on interlocutory reviewbefore the Commission. Reynolds argues that, in any event, in Reynolds I theCommission made the required factual findings, including that Reynolds hadtrade secrets to protect, and properly balanced the competing interests of theparties. Finally, Reynolds alleges that the Secretary did not make a bona fideattempt to locate a qualified Federal noise expert and therefore did notestablish that he was unable to locate such an expert. Reynolds thereforerequests that if a second remand is ordered the Commission require theSecretary to prove that he is unable to obtain a qualified Federal employee.??????????? I note initially that the parties disagree as to theissues before the Commission. The Secretary argues that the Commission erred asa matter of law in imposing a Federal employee restriction, but that, assumingsuch a restriction can ever be proper, it is unjustified in this case becauseReynolds has not proven the existence of valid trade secrets and because adiligent search has revealed that a qualified federal expert is unavailable.Reynolds argues that these issues can no longer be litigated and that the onlyissue is whether the Judge correctly dismissed the complaint upon theSecretary?s refusal to proceed in accordance with Reynolds I.??????????? In Reynolds I the Commission held that, as amatter of law, the Secretary is limited to the use of a Federal employee toconduct a discovery inspection if inspection by an outside expert wouldendanger the employer?s trade secrets and if the Secretary failed to show goodcause why it was necessary to use an outside expert. That holding is the law ofthe case and I therefore reject the Secretary?s argument that limiting him tothe use of a Federal employee to conduct a discovery inspection can never beproper.??????????? However, contrary to Reynolds? contentions, there are twoas yet unresolved issues in this case. The first is whether Reynolds hasestablished the existence of trade secrets.??????????? When Reynolds I was decided, Reynolds had placedin the record the affidavit that it had trade secrets a discovery inspectionmight reveal, and the Act places on the Commission the duty of protecting tradesecrets from disclosure. Supra note 4. Therefore, having decided that theSecretary had the right to a discovery inspection, the Commission could notignore the issue presented by Reynolds? claim of trade secrets. Since theSecretary did not question the existence of trade secrets at the time of ReynoldsI, we issued a protective order based on the record as it existed at thattime.??????????? I agree with the Secretary that, as the party seeking tolimit discovery on trade secret grounds, Reynolds has the burden ofestablishing their existence. Fed. R. Civ. P. 26(c).[5] See, e.g., Davis v.Romney, 55 F.R.D. 337, 340 (E.D. Pa. 1972). However, I reject theSecretary?s argument that an affidavit, without more, is an insufficient basisupon which to find that Reynolds possesses trade secrets. Placing this matterin proper perspective, I emphasize that at issue here is a dispute over apre-hearing discovery motion. And at least at this preliminary stage of thecase, it is entirely proper to rely on an uncontroverted affidavit to establishthe existence of trade secrets for purposes of a discovery limitation underRule 26(c). Fed. R. Civ. P. 44(e). See Israel Aircraft Industries, Ltd. v.Standard Precision, 559 F.2d 203 (2nd Cir. 1977); Covey Oil Co. v.Continental Oil Co., 340 F.2d 993 (10th Cir. 1965). Consequently, I wouldnormally find that, based on the record as it now exists, Reynolds possessesthe necessary trade secrets and that any objection as to their existence isuntimely because the Secretary failed to raise the argument prior to ourdecision in Reynolds I.??????????? However, this case is unique both in its proceduralhistory and in its establishment of new legal principles. In the beginning, thequestion of trade a secrets was secondary to the Secretary?s right to obtaindiscovery inspections. However our decision in Reynolds I brought thetrade secrets issue to the forefront. By placing on the Secretary the duty offinding qualified Federal experts in order to protect trade secrets, we gavethe issue of trade secrets added significance. As a result of that decision,the Secretary may not be able to rely upon orders of confidentiality to protecttrade secrets. Moreover, instead of using private experts, he must find Federalexperts. Although I expressed the limitation in terms of being ?confident? theSecretary could locate a qualified Federal expert, the Secretary claims such atask is impossible. Yet failure in this regard may lead to dismissal. Hencewhether trade secrets actually exist may become crucial to the ability of theSecretary to proceed. Accordingly, our decision in Reynolds I placed the entireissue of trade secrets in a different context. Because the effect trade secretshave on a discovery inspection was an issue of first impression before theCommission and the parties did not fully address the issue prior to ReynoldsI, I hold that the parties should have the opportunity to relitigate thetrade secrets issue and will remand for a hearing on whether Reynolds has therequisite trade secrets. Cf. Grossman Steel and Aluminum Co., 76 OSAHRC54\/D9, 4 BNA OSHC 1185, 1975?76 CCH OSHD para. 20,690 (No. 12775, 1976); Anning-JohnsonCo., 76 OSAHRC 54\/A2, 4 BNA OSHC 1193, 1975?76 CCH OSHD para. 20,690 (No.3694, 1976).??????????? The second issue yet to be resolved involves the Federalemployee restriction. Again, Reynolds contends that our earlier decision is unequivocalin requiring that the Secretary use only Federal employees to conduct thediscovery inspection. As noted above, however, I expressed that limitation interms of being ?confident? the Secretary could locate a qualified Federalexpert. Thus, our decision did not go so far as to preclude the Secretary fromshowing good cause why a nonfederal employee must be used, i.e. that aqualified Federal expert was unavailable.??????????? Even accepting Reynolds? position that Reynolds Iunequivocally required a Federal employee to conduct the discovery inspection,I would nevertheless be constrained to also reconsider the discovery limitationissue in light of the intervening circumstance of the Secretary?s allegedinability to locate a Federal expert. See Brennan v. OSAHRC (John J.Gordon), 492 F.2d 1027 (2nd Cir. 1974); Faircrest Site Opposition Committeev. Levi, 418 F. Supp. 1099 (N.D. Ohio 1976); cf. Placid Oil Co. v. FPC,483 F.2d 880 (5th Cir. 1973), Bookman v. U.S., 453 F.2d 1263 (Ct. Cl.1972).??????????? Accordingly, I am remanding to the Judge for factualfindings on the threshold question of whether Reynolds has trade secrets whicha discovery inspection would endanger, and on the secondary question of whetherthe Secretary has shown good cause for using a nonfederal expert. On the issueof whether Reynolds has the requisite trade secrets, the burden is uponReynolds to establish their existence. If the Judge, after making specificfactual findings on the matter, finds that Reynolds has not shown that tradesecrets exist, the Secretary is to be granted permission to conduct discoveryusing any expert he chooses. The second question therefore need not be reached.??????????? If the Judge finds that trade secrets do exist, and afterallowing for the introduction of additional evidence, he is to make specificfactual findings on whether the Secretary has established good cause for theuse of a nonfederal expert. If the Secretary shows good cause, he shall bepermitted to use any expert of his choice. If he is unable to establish good cause,the Secretary shall be limited to using a Federal employee to conduct anydiscovery inspection.??????????? Also, in the event the Judge finds that trade secretsexist, he is to protect that confidentiality by issuing any such additionalorders as may be appropriate, in accordance with our earlier decision in thiscase and Rule 11 of the Commission?s Rules of Procedure.??????????? Accordingly, the case is remanded for further proceedingsconsistent with this decision.?FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: JUN 14, 1978?CLEARY, Chairman,CONCURRING:This case demonstrateswhy Reynolds I should be reexamined in the near future. Nevertheless, Iconcur in the result because Reynolds I is controlling here.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 4385 REYNOLDS METALS CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 July 6, 1976?ORDERDISMISSING COMPLAINT AND VACATING CITATION??????????? An aluminum can manufacturing plantat Hayward, California, owned by Reynolds Metals Company (Respondent) wasinspected by a Compliance Safety and Health Officer on behalf of the Secretaryof Labor (Complainant) on July 31, 1973. As a result of that inspection aCitation for Nonserious Violation of the safety and health standard codified at29 CFR 1910.95(b)(1) was issued to Respondent on August 3, 1973. The Citationalleged that feasible engineering or administrative controls had not beenutilized to the extent necessary to reduce exposure to noise in five (5)specific areas of the plant to the acceptable intensity and time durations setforth in the cited standard.??????????? Complainant subsequently sought, andon April 2, 1974 was DENIED, an order permitting entry to Respondent?s plantfor the purpose of discovery in connection with the Citation. Complainantsought to use an outside expert to make this requested discovery inspection. OnApril 17, 1974 the Review Commission granted Complainant?s Petition forInterlocutory Appeal and Stay of Proceedings with respect to the April 2ndOrder.??????????? In an Order dated December 10, 1975the Commission remanded the case to this Judge for further proceedings. Complainant?sPetition for Reconsideration of the December 10th Order was denied by theCommission on January 16, 1976. The December 10th Remand Order grantedComplainant?s request for discovery but limited performance of the discoveryinspection to an expert who was a federal employee.??????????? The following chronology summarizesthe proceedings subsequent to the remand of the case:??????????? 1. January-March 1976?Severaltelephone pre-trial conferences were held to arrange mechanics of identifyingthe expert and setting the dates for his inspection of the plant. During theseconferences Complainant indicated considerable difficulty in finding an expertin federal employment who had acceptable qualifications.??????????? 2. March 15?Entered an OrderGranting Complainant?s Motion for Order Requiring Respondent to Permit Entry,etc., with the discovery inspection to be made on March 31 and April 1, 1976.This Order required that the discovery inspection be performed by an expertfrom federal employment and limited the scope of the inspection to thatrequested in Complainant?s original 1973 request.??????????? 3. In late March Complainant advisedthat it was unable to locate an acceptably qualified expert in federal employeeranks. Following this advice, Complainant did not make the ordered March31st-April 1st discovery inspection.??????????? 4. April 14th?Trial Noticed for May4th in San Francisco.??????????? 5. April 19th?Complainant filed aMotion to Vacate the Order of March 15th.??????????? 6. April 22nd?Trial scheduled forMay 4th postponed to on or about June 1st.??????????? 7. May 4th?Entered Order DenyingMotion to Vacate Order of March 15th.??????????? 8. May 13th?Trial Noticed for June2nd in San Francisco.??????????? 9. May 18th?Complainant filed adocument captioned ?Statement of Position? stating in effect that, ?Complainantcannot proceed.? The scheduled June 2nd trial was postponed pending a ruling onComplainant?s Statement of Position.??????????? 10. June 2nd?Issued Order to ShowCause why the Citation and Complaint should not be Dismissed for failure andrefusal of Complainant to proceed to Trial.??????????? 11. June 16th?Complainant filed aMemorandum of Points and Authorities in Response to the Order to Show Cause. Inthis document Complainant asserts that it has been denied the opportunity toprove an essential element of its case, ?Feasibility?, by denial of theopportunity to use an expert from private industry. This argument is based onthe further assertion that there is no available qualified noise expert in theranks of federal employees. Complainant seeks a dismissal without prejudice.??????????? 12. June 28th?Respondent filed aReply to Complainant?s Memorandum of Points and Authorities in Response toOrder to Show Cause. In this Memorandum Respondent seeks to have this Actiondismissed with prejudice.??????????? The foregoing chronology clearlydemonstrates the fact that Complainant has refused to proceed to trial.Complainant did not perform the discovery inspection at the time ordered for itand affirmatively states that it cannot to forward without being permitteddiscovery by an expert from private industry. Under these circumstances thecase must be Dismissed. The circumstances, as a whole, do not justify an orderother than DISMISSAL. There is no valid reason to make the order either with orwithout prejudice.??????????? Accordingly, because Complainant hasfailed and refused to proceed to trail in this matter as outlined above, it is??????????? ORDERED that:??????????? 1. The complaint herein be, and thesame hereby is, DISMISSED; and that??????????? 2. The Citation herein be, and thesame hereby is, VACATED.\u00a0Dated this 6th dayof July, 1976.?JERRY W. MITCHELLJudge\u00a0\u00a0[1] Section1910.95(b)(1) states:When employees aresubjected to sound exceeding those listed in Table G?16, feasibleadministrative or engineering controls shall be utilized. If such controls failto reduce sound levels within the levels of Table G?16, personal protectiveequipment shall be provided and used to reduce sound levels within the levelsof the table.TableG?16 entitled ?Permissible Noise Exposures? includes the following:\u00a0 Duration per day, hours \u00a0 Sound level dBA slow response \u00a0 8 \u00a0 90 \u00a0 6 \u00a0 92 \u00a0 4 \u00a0 95 \u00a0 3 \u00a0 97 \u00a0 2 \u00a0 100 \u00a0 1 1\/2 102 \u00a0 1 \u00a0 105 \u00a0 1\/2 \u00a0 110 \u00a0 1\/4 \u00a0 115 \u00a0 \u00a0[2] The Commission?sRules of Procedure do not cover discovery by entry upon land, and the discoveryrules of the Federal Rules of Civil Procedure therefore apply. 29 C.F.R. ?2200.2(b). See Reynolds Metals Co., 3 BNA OSHC at 1750. Fed. R. Civ. P.34, in pertinent part, states:(a) Scope. Any party may serve onany other party a request. . . to permit entry upon designated land or otherproperty in possession or control of the party upon whom the request is servedfor the purpose of inspection and measuring, surveying, photographing, testing,or sampling the property or any designated object or operation thereon . . .Fed.R. Civ. P. 37, in pertinent part, states:(a) Motion for Order CompellingDiscovery . . . . (2) Motion. . . . if a party, in response to a request forinspection submitted under Rule 34, fails to respond that inspection will bepermitted as requested, the discovering party may move for . . . an ordercompelling inspection in accordance with the request.[3] 18 U.S.C. ? 1905provides for criminal sanctions for any Federal employee who makes unauthorizeddisclosures of trade secrets of which he learns in the course of hisemployment.[4] Section 15 of theAct provides, in part:. . . In any such proceeding whichcontains or which might reveal a trade secret the Secretary, the Commission, orthe court shall issue such orders as may be appropriate to protect theconfidentiality of trade secrets.Rule11 of the Commission?s Rules of Procedure, 29 C.F.R. ? 2200.11(a), in essenceparallels ?\u00a015 of the Act. Rule 26(c) of the Federal Rules of CivilProcedure, infra note 6, provides the court with authority to order, undercertain circumstances, that discovery be conducted with no one present exceptpersons designated by the court. Fed. R. Civ. P. 26(c)(5). This rule applies tothe Commission?s proceedings. Supra note 2.[5] Fed. R. Civ. P.26(c), in part, states:Protective Orders. Upon motion by aparty or by the person from whom discovery is sought, and for good cause shown,the court in which the action is pending . . ., the court in the district wherethe deposition is to be taken may make any order which justice requires toprotect a party or person from annoyance, embarrassment, oppression, or undueburden or expense, including one or more of the following: . . . (7) that atrade secret or other confidential research, development, or commercialinformation not be disclosed or be disclosed only in a designated way: . . ..”