“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 10833 WHEELING-PITTSBURGH STEEL CORPORATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0August 5, 1976DECISIONBefore: 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) ofthe Commission?s Rules of Procedure (29 CFR ? 2200.75(c)). The subject of theappeal is Judge Duvall?s denial of the respondent?s motion to quash thecomplainant?s subpoena of certain photographs pertaining to the violationsalleged in the complaint.On September 24, 1974, an inspection ofthe respondent?s plant in Mingo Junction, Ohio, was conducted by a complianceofficer (CSHO) of the Department of Labor. He was accompanied on the?walkaround? by the respondent?s safety officer, two other representatives forrespondent as well as two employee representatives. During the inspection, theCSHO photographed each condition or situation that appeared to be in violationof the Act. The respondent?s safety officer took duplicate photographs of eachalleged violation. Based on the results of the inspection, the Secretary ofLabor issued a citation and notification of proposed penalty. A timely noticeof 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 malfunctionedresulting in the loss of the photographic evidence. Discussions with the CSHOand the employees? representative, however, revealed the existence of duplicatephotographs in respondent?s possession. Complainant?s counsel subpoenaed theduplicate photographs for use as evidence at the hearing. The respondent movedto quash complainant?s subpoena. At the hearing on February 4, 1975, afterlistening to arguments from both parties, Judge Duvall denied the motion toquash. The Judge based his decision on Rule 26(b)(3) of the Federal Rules ofCivil Procedure.[1]The respondent has presented a number ofarguments in support of its position that Judge Duvall erred in not grantingits motion to quash complainant?s subpoena. To begin with, the respondentcontends that the complainant has failed to make the necessary showing of?substantial need? and inability to obtain materials which are the ?substantialequivalent? as required by Rule 26(b)(3) of the Federal Rules of CivilProcedure.Materials prepared for litigation whichare in the possession of an opponent?s attorney will be subject to discovery ifthey are (1) relevant, (2) unpriviledged, (3) essential to the preparation ofone?s and, (4) otherwise unobtainable or a substantial equivalent cannot beobtained 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 scenesat issue and that cannot be retaken due to a probability that the scene haschanged, have traditionally been held to satisfy the requirement of the FederalRules of Civil Procedure and Hickman v. Taylor. They therefore arediscoverable. Boston Insurance Co., 34 F.R.D. 463 (D.Del. 1964); Helversonv. 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, 9F.R.D. 598 (W.D. Mo. 1949). After reviewing the record, we conclude that thephotographs at issue come within the rule and the cited precedents. We rejectthe respondent?s contention, and find that the complainant has satisfied therequirements necessary to order production of the materials requested.The respondent next argues that thephotographs sought by the complainant are a privileged communication betweenattorney and client. The privilege that inures to certain communicationsbetween an attorney and his client is a narrow one, and it should be strictlyconstrued against those who invoke it. Goldinger v. Boron Oil Co., 60F.R.D. 562 (W.D. Pa. 1973). The Federal District Court for Massachusetts in UnitedStates 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) theasserted holder of the privilege is or sought to become a client; (2) theperson to whom the communication was made (a) is a member of the bar of acourt, or his subordinate and (b) in connection with this communication isacting as a lawyer; (3) the communication relates to a fact of which theattorney was informed (a) by his client (b) without the presence ofstrangers (c) for the purpose of securing primarily either (i) an opinionon law or (ii) legal services or (iii) assistance in some legal proceeding, andnot (d) for the purpose of committing a crime or tort; and (4) the privilegehas been (a) claimed and (b) not waived by the client (emphasis added).?This test was quoted with approval and applied in Birdv. Penn Central Co., 61 F.R.D. 43, 46 (E.D. Pa. 1973) and PhiladelphiaHousing Authority v. American Radiator & Standard Sanitary Corp., 294F. Supp. 1148, 1150 (E.D. Pa. 1969).In this case, while there is some questionas to whether the photographs themselves qualify as a ?communication,? it issufficient for us to note that the respondent?s agent took the photographswhile in the company of no less than five other persons or ?strangers.?Therefore, the confidentiality of the communication being destroyed, theattorney-client privilege may not properly be invoked.The respondent?s final contention, thatthe photographs are attorney?s ?work product? privileged from discovery, isalso without merit. The ?work product? doctrine finds its basis in Hickman v.Taylor, supra. The Supreme Court held, essentially, that the work done by anattorney in the preparation of a case for litigation?that is, the workreflected ?in interviews, statements, memoranda, correspondence, briefs, mentalimpressions, personal beliefs, and countless other tangible and intangibleways??should be privileged from ?unnecessary intrusion by opposing parties andtheir counsel (emphasis added).? The essence of this doctrine is expressed inRule 26(b)(3) Fed. R. Civ. P.:In ordering discovery of such materialswhen the required showing has been made, the court shall protect againstdisclosure of the mental impressions, conclusions, opinions, or legal theoriesof an attorney or other representative of a party concerning the litigation.?We have already found that complainant hasmade the ?required showing.? Furthermore, the photographs at issue fail to comewithin the categories of ?mental impressions, conclusions, opinions, or legaltheories 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 notproperly part of the ?work product? of the lawyer.?Moreover, section 8(e) of the Act (29U.S.C. ? 657(e)) provides representatives of both the employer and theemployees with the opportunity to accompany the CSHO during the inspection ?forthe purpose of aiding such inspection? (emphasis added). The disclosure ofduplicate photographs by respondent to the Secretary is fully consistent withthe essential purpose of this section.In addition, were the situation reversedand respondent was seeking disclosure of certain relevant photographs in theSecretary?s possession, such would be both discoverable by the employer andavailable under the Freedom of Information Act. 5 U.S.C. ? 552; see FrazeeConstruction Co., No. 1343, 4 OSAHRC 188, BNA 1 OSHC 1270, CCH OSHD para.16,409 (1973).Accordingly we affirm Judge Duvall?sdenial of respondent?s motion to quash the complainant?s subpoena, and remandthe case for further proceedings consistent with this opinion.?FOR THE COMMISSION:?William S. McLaughlinExecutive SecretaryDATED: AUG 5, 1976?BARNAKO, Chairman, Concurring:I concur with Commissioner Cleary thatJudge Duvall properly denied Respondent?s motion to quash the Secretary?ssubpoena. I do so reluctantly, however, because I am struck by the element ofunfairness that results. Although the Secretary was unable to produce even a singlephotograph of his own for use in proving his case against Respondent, he isallowed to capitalize on Respondent?s diligence in order to accomplish thatsame 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 clearlydictates the legal conclusion in this case. The photographs do not fall withinthe attorney-client privilege and do not represent the work product of anattorney. Because the photographs were taken in the presence of strangers, theelement of confidentiality required to establish the attorney-client privilegeis absent. Also, the photographs cannot be regarded as attorney work productbecause 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 themajority opinion, however, these photographs would also have been discoverableif they were in the hands of the Secretary and sought by Respondent. TheSecretary will be bound by the same rules he invokes on his own behalf.Similarly discoverable would be other material in the Secretary?s possessionsuch as the non-privileged reports and memoranda leading to a determination thatan alleged violation had occurred and that a citation should issue.?MORAN, Commissioner, Concurring:I agree that Judge Duvall properly deniedrespondent?s motion to quash complainant?s subpoena. I also agree withCommissioner Cleary?s conclusion that the photographs are not protected by theattorney-client privilege.Although it is appropriate for theCommission to rely on Rule 26(b)(3) of the Federal Rules of Civil Procedure todetermine whether a subpoena should be quashed under Commission Rule 55(b),[2] I consider it unnecessaryto do so in the instant case because there is no basis for concluding that therequested photographs were prepared in anticipation of litigation. Such anassumption is highly speculative and not supported by the record. There isnothing to indicate that these photographs were anything other than recordsmade and kept in the regular course of business. Respondent duplicated thephotographs taken by the inspector as the result of advice given by its counselthat this process be followed as a regular practice whenever its facilitieswere 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 appropriatefor the Commission to apologize for its action in following the law in thiscase as Chairman Barnako does in his concurring opinion.\u00a0[1] Under Commission Rule 2(b), theFederal Rules of Civil Procedure apply in the absence of a specific Commissionrule.[2] 29 C.F.R. ?2200.55(b). The rule provides for quashing a subpoena under two specifiedconditions or ?for any other reason sufficient in law? which indicates that thesubpoena is invalid.”