filed: January 6, 1993; As Amended February 12, 1993.
On Petition for Review of a Final Order of the Occupational Safety & Health Review Commission. (OSHRC Nos. 87-1849 & 88-337).
Before: Stapleton, Scirica and Nygaard, Circuit Judges.
This petition for review raises several issues regarding the application of the attorney work product doctrine to a dispute between the Occupational Health and Safety Administration and a private employer. Specifically, we must decide the extent to which the OSHA records access rule, 29 C.F.R. § 1910.20 (1991), incorporates the work product doctrine and whether under the facts here the employer properly invoked the doctrine to refuse OSHA's request for the production of a consultant's report. The Secretary of Labor cited the employer for violating the records access rule by withholding the report, and an Administrative Law Judge upheld the citations. The Occupational Safety and Health Review Commission vacated the citations, upholding the employer's claim of work product.
In reviewing the Commission's decision, we must determine the scope of work product protection provided in the records access rule, including the point in a dispute where the protection attaches and the showing OSHA must make to overcome a claim of work product. Because we agree with the Commission's determination that the work product doctrine applies to document requests made under the records access rule, and because we find that substantial evidence supports the Commission's factual finding that the report OSHA requested here was protected work product, we will affirm.
In March 1987, a bartender at Bally's Park Place Hotel & Casino in Atlantic City, New Jersey, telephoned OSHA's regional office in Camden, New Jersey, to complain about skin, eye, and throat irritations apparently resulting from chemical emissions in her work station. These problems were traced to a dishwasher located at the service bar where she worked. The emissions consisted of iodine, a chemical contained in a compound known as "Mikroklene" that was used in the dishwasher's cold water rinse cycle.
OSHA's Acting Area Director responded to the employee's complaint by telling her that the agency was backlogged and could not conduct an inspection for a month or two. When the employee requested a speedier response, the Acting Area Director suggested handling the matter informally. The employee agreed to this course of action.
An exchange of letters between OSHA and Bally's followed. On March 10, 1987, OSHA wrote Bally's, notifying the company of the employee's complaint and directing it to "investigate the alleged condition(s) and make the necessary correction(s) and/or modification(s)" within thirty days. The letter stated further that "if we do not receive a response from you indicating that appropriate action has been taken, an inspection may be conducted." On March 16, Bally's Director of Labor Relations, Richard Tartaglio, wrote OSHA, stating that Bally's investigation revealed an adequate air flow in the bar service area and suggesting that the iodine odor resulted from improper dilution of Mikroklene by the bar porters. OSHA wrote Tartaglio again on April 3, advising him that "your response still leaves the condition in open status [since] the complainant has stated that the irritating condition still exists."
Upon receipt of this letter, Tartaglio reported the entire matter to Bally's General Counsel, Dennis Venuti. Venuti reviewed the correspondence and concluded that Bally's risked claims from the affected employees, from their union, and from OSHA. As he testified before the Administrative Law Judge, "I reached the Conclusion . . . that I had to, at this point, start the process of preparing a defense against such claims." Accordingly, Venuti decided that Bally's should retain a technical expert to test the emissions from the dishwasher. In an internal memorandum dated April 17, Venuti directed Tartaglio to hire such an expert to prepare a report for Venuti's exclusive use. On April 20, Bally's took the dishwasher out of regular service. On May 4 and 5, the consulting firm of J.C. Anderson Associates conducted air sampling tests on the dishwasher. The firm prepared a report of the test results and gave the report only to Venuti.
Following the consultant's submission of the report, OSHA and Venuti initiated another exchange of communications. On May 29, an OSHA representative telephoned Venuti to request a copy of the report. Venuti refused, claiming that the report was protected by the attorney-client privilege and the work product doctrine.*fn1 OSHA then wrote Bally's on June 2, stating that "unless the complainant disputes your statements [regarding correction of the iodine problem] and provides us with additional information in the next few days, you may consider this matter closed." The letter also asserted OSHA's and the employees' right to a copy of the report under the records access rule, 29 C.F.R. § 1910.20 (1991), and stated that "if upon request, you refuse to provide the results to employees or their representatives OSHA would be required to take appropriate action." Three days later, the bar employees' union also wrote Bally's to request a copy of the report. Bally's denied both requests on the ground that the report constituted work product. The complaining employee has since brought a personal injury action against Bally's in New Jersey state court based on the dishwasher emissions.
On July 27, OSHA served Bally's with a subpoena duces tecum demanding the report. Through outside counsel it retained to handle this matter, Bally's responded by letter on August 17, setting forth its opposition to the subpoena. OSHA then abandoned its efforts to enforce the subpoena. Instead, on October 26, OSHA issued a citation to Bally's for willfully violating the records access rule by refusing to provide the agency with a copy of the report. On January 20, 1988, OSHA issued a second citation alleging that Bally's had willfully violated a separate provision of the records access rule by denying the union a copy of the report.
Bally's contested the citations before the Occupational Safety and Health Review Commission, again asserting its claim of work product. The case was assigned to an Administrative Law Judge, who sustained the citations following a hearing and an examination of the contested report in camera. In upholding the citations, the ALJ determined that the report did not qualify as work product because it contained purely technical information which required no legal interpretation. The ALJ then ruled that, even assuming the report constituted work product, OSHA and the union were entitled to the report. He based this determination on his finding that they had demonstrated a "substantial need" for the report because Bally's had taken the dishwasher out of service following the tests, thus denying OSHA and the employees the opportunity to test the machine themselves. The ALJ also ruled that OSHA could not be faulted for failing to conduct its own test because OSHA had reasonably relied upon Bally's to share the test results. Bally's petitioned the Commission for review.*fn2
The Commission reversed the ALJ's decision in all respects and vacated the citations. In upholding Bally's claim, the Commission determined that the work product doctrine applies to document requests made under OSHA's records access rule. It also ruled that the applicable standard for work product in this context is found in Fed. R. Civ. P. 26(b)(3), which provides that:
[A] party may obtain discovery of documents and tangible things . . . prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's 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 the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.
The Commission then determined that the requested report fell within the ambit of Rule 26(b)(3), since it was (1) a "document," (2) "prepared in anticipation of litigation," and (3) prepared by a "party's representative," Bally's consultant, for that "party's representative," Bally's attorney. The Commission also rejected the ALJ's Conclusion that the doctrine did not apply to "purely technical" or "factual" information, a limitation not imposed by the rule.
The Commission then determined that OSHA failed to make a sufficient showing to overcome the qualified protection of the work product doctrine. Under Rule 26(b)(3), a party can obtain discovery of otherwise protected work product by demonstrating that it has "substantial need" of the requested materials and that it "is unable without undue hardship to obtain the substantial equivalent of these materials by other means." Applying this two-part test, the Commission found that, even assuming OSHA had "substantial need" of the report, the agency had failed to establish that it could not obtain "substantially equivalent" materials without "undue hardship." In this regard, the Commission made several factual findings. It found that since there was no evidence that Bally's precluded OSHA from conducting its own test on the dishwasher, OSHA could in fact have done so. The Commission rejected OSHA's claim that it could not have tested the dishwasher because Bally's had removed it from regular service, noting that OSHA could have requested Bally's to retrieve the dishwasher for this purpose. It is undisputed that OSHA did not explore this possibility with Bally's. The Commission also found that, given Bally's consistent assertion of work product, OSHA could not establish that it "reasonably relied" on Bally's to share the report with it.
Acting on behalf of OSHA, the Secretary of Labor filed a timely petition for review from the Commission's decision.
We have jurisdiction over the Secretary's appeal under section 11(b) of the Occupational Safety and Health Act ("OSH Act"), 29 U.S.C. § 660(b) (1988). On appeal, the Secretary disputes both the Commission's determination that the substantive standards of Fed. R. Civ. P. 26(b)(3) govern Bally's claim of work product and its factual findings that the report was work product and that the Secretary failed to overcome the qualified protection afforded by that rule.
Different standards of review govern our consideration of these issues. We review the Commission's interpretation of the records access rule to determine whether it was made "in accordance with law." 5 U.S.C. § 706(2)(A) (1988). Our review here is plenary. Dole v. East Penn Mfg. Co., 894 F.2d 640, 643 (3d Cir. 1990). Our review of the Commission's decisions that the report was work product and that the Secretary had failed to make a sufficient showing to overcome the qualified protection of the work product doctrine is more limited. Under the OSH Act, "the findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive." 29 U.S.C. § 660(a) (1988); see Martin v. OSHRC, 113 L. Ed. 2d 117, 111 S. Ct. 1171, 1178 (1991).
The OSH Act authorizes the Secretary of Labor to prescribe rules requiring employers to make available certain records. 29 U.S.C. § 657(c)(1). Pursuant to this authority, the Secretary has promulgated the records access rule. 29 C.F.R. § 1910.20. This rule requires employers to make available to OSHA and to its employees two types of records which the employers have voluntarily generated -- "medical records," such as the results of employees' medical examinations, and ...