150 F.R.D. 122 | N.D. Ill. | 1993
MEMORANDUM ORDER
Before this court is the motion of Robert Reich, Secretary of Labor, United States Department of Labor (“Department of Labor”) to quash a subpoena issued by the defendant Raychem Corporation to Ronald McCann, Aea Director for the United States Occupational Safety and Health Administration.
I. BACKGROUND
This case arises out of the January 11, 1992 fire which occurred at Culinary Foods, Inc.’s place of business located at 1240-46 W. George St. in Chicago, Illinois, and resulted in the death of Remigio Sagun, as well as extensive fire damage. Culinary Foods claims that the fire was the result of certain Raychem Corporation (“Raychem”) products which were installed at the location and asserts product liabilities claims against Ray-chem. Raychem, which was not immediately aware of the fire and consequently could not do its own investigation, has subpoenaed certain documents from the U.S. Occupational Safety and Health Administration (“OSHA”) which Raychem believes will be relevant to its defense and cross claims.
Through a previous request under the Freedom of Information Act, 5 U.S.C. § 552 et seq. (“FOIA”), OSHA had turned over a number of documents to Raychem while withholding certain documents based upon exemptions in the Freedom of Information
II. ANALYSIS
At the outset, it is important to distinguish between discovery under the Federal Rules of Civil Procedure and access to government information under the FOIA.
As a general notion, information available under the FOIA is likely available through discovery. However, information unavailable under the FOIA is not necessarily unavailable through the discovery process. As noted by Raychem, the fact that the information sought is exempt from disclosure under the FOIA does not necessarily mean that the information is exempt from discovery. Friedman v. Bache Halsey Stuart Shields Inc., 738 F.2d 1336, 1344 (D.C.Cir.1984); Pleasant Hill v. United States, 58 F.R.D. 97, 99 (W.D.Mo.1973). Thus, the Department of Labor cannot solely rely on FOIA exemptions to establish a privilege in discovery. Pleasant Hill, 58 F.R.D. at 101. In the FOIA context, a requesting party’s need for information is irrelevant. On the other hand, where a qualified privilege is asserted in the discovery context, the liti
However, the FOIA is not totally irrelevant to the discovery process. The FOIA exemptions reflect Congressional judgment that dissemination of sensitive government information should be given more cautious treatment. Although FOIA exemptions do not equate to discovery privileges, FOIA exemptions do roughly correspond to certain discovery privileges.
In light of this discussion, we now turn to the discovery privileges asserted by the Department of Labor. The Department of Labor claims that the documents which were originally withheld from the FOIA request are exempt from discovery based on the informant’s privilege and the work product doctrine and thus, the subpoena requesting this information should be quashed. Although FOIA exemptions carry some weight in the analysis of discovery privileges, the burden of establishing a privilege remains on the opponent to discovery, in this case the Department of Labor. We stress this point due to our experience with privilege assertions in other cases. Frequently, the discovery opponent relies upon descriptions of documents at issue in a privilege log, but does not, as it should, make a colorable attempt to meet its burden of establishing the applicability of the privilege it asserts to each of the documents it hopes to withhold from discovery. Allendate Mut. Ins. Co. v. Bull Data Systems, Inc., 145 F.R.D. 84 (N.D.Ill.1992). In order to invoke a privilege, the party asserting the privilege has the burden of establishing all of its elements. United States v. White, 950 F.2d 426, 430 (7th Cir.1991), citing United States v. Lawless, 709 F.2d 485, 487 (7th Cir.1983). A claim of privilege cannot be a blanket claim, but must be made and established on a document-by-document basis. Id. Accordingly, we address the assertions of the informant’s privilege and the work product doctrine.
A. Informant’s Privilege
The informant’s privilege is actually the Government’s privilege to withhold the identity of individuals who provide the Government with information of violations of law. Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957). The purpose of the informant’s privilege is the furtherance and protection of the public interest in law enforcement. Id. The privilege is applicable in civil as well as criminal cases. Dole v. Local 1942, International Brotherhood of Electric Workers, AFL-CIO, 870 F.2d 368, 372 (7th Cir.1989). By ensuring anonymity, citizens are encouraged to fulfill their social responsibilities of cooperating with law enforcement officials in detecting violations of law. Id. Fear of reprisal of any form is best diminished.by bestowing anonymity on the informant. Id. Furthermore, ensuring anonymity encourages citizens to cooperate with law enforcement officials. Id.
In the context of OSHA investigations, the informant’s privilege is likewise necessary. The Government’s task of enforcing safety and health regulations on the work site would be virtually impossible without the employee’s cooperation and information. Common sense notions recognizes the power
Because of the significant policy interests, the government need not make a threshold showing that retaliation is likely to occur in order to assert the privilege. Dole, 870 F.2d at 372. Rather, the privilege is granted as of right. Id. However, the informant’s privilege is not absolute. Roviaro, 353 U.S. at 60, 77 S.Ct. at 627. Only documents which tend to reveal the identity of an informer are protected under the privilege. Id. In addition, the privilege will yield “when the identification of the informant or of a communication is essential to a balanced measure of the issues and the fair administration of justice.” Dole, 870 F.2d at 372.
1. Witness Statements
In applying the “balance measure” test, we first address the privilege with respect to the 44 pages of witness statements.
While Raychem has expressed concern that certain employees who were present when the fire occurred on January 11, 1992, have since departed from Raychem and may no longer be available for questioning, we still find an absence of need sufficient to justify setting aside the privilege. These individuals are still subject to normal discovery means in any event, and as mentioned above, other sources are available to defendant to obtain substantially the same information as that contained in the statements of the employees.
In taking a balanced approach to Ray-chem’s efforts to obtain the employee statements, and the Department of Labor’s oppo
2. Other Documents
Of the remaining portion of the material which the Department of Labor claims is subject to the informant’s privilege, we find the Department of Labor has not met its burden of establishing the privilege. As previously noted, a discovery opponent often relies upon descriptions of documents in a privilege log and fails to make a colorable attempt to meet its burden of establishing the applicability of the privilege it asserts to each of the documents it hopes to withhold from discovery. This is exactly what the Department of Labor has done.
After receiving briefs from the Department of Labor that merely discuss the general law relevant to the claimed privileges, we asked that the court be “provided with a statement describing with specificity what materials are being withheld and which privilege is asserted regarding these specific materials.” (Court’s June 15, 1993, Letter to the Parties). We further stated, “The description must be sufficiently detailed to allow this court to determine whether the burden of establishing the privileges has been met with respect to each and all materials being withheld.” Id. As it turns out, the Department of Labor simply ignored the court’s request; its response to the court’s directions amounted to no more than the submission of a skeletal privileged log giving mainly 2 to 15 word descriptions of the documents with corresponding exemptions under the FOIA
We conclude that the Department of Labor has failed to meet its burden of establishing the informant’s privilege for two reasons. First, the Department of Labor has failed to show that the informant’s privilege is applicable to these documents. Based upon the filing, the Department of Labor has only established that it has already exerted these FOIA exemptions in the previous FOIA request, not that any of these documents will in any way disclose the identity of informants. Secondly, the exemptions cited are exactly that, FOIA exemptions. As previously discussed, the fact that information is exempt under the FOIA does not necessarily mean the information is not discoverable under the Federal Rules of Civil Procedure. Friedman, 738 F.2d at 1344. Although we will give some weight to the underlying policies of FOIA exemptions, this alone is not enough to establish a discovery privilege. If we were to find otherwise, we would be disregarding the litigant’s need for the requested material, and holding that FOIA exemptions are identical to discovery privileges.
B. WorA; Product Doctrine
The Department of Labor claims that certain documents are being withheld pursuant to the work product doctrine.
In the Department of Labor’s brief asserting the work product doctrine, the Department of Labor has cited a number of cases discussing the work product doctrine and the requirement that the documents be prepared in anticipation of litigation. However, despite adequate opportunity to do so, the Department of Labor has failed to appropriately apply the doctrine to the documents in question. We conclude that it has failed to establish that the requested documents were in fact prepared in anticipation of litigation. Again, we note that in response to our request for a specific description of documents sufficiently detailed to allow this court to determine whether the burden of establishing the privileges has been met with respect to each and all materials withheld, the Department of Labor submitted its skeletal privilege log giving only 2 to 15 word descriptions of the documents with the corresponding FOIA exemptions, and of the 40 distinct descriptions of documents, the exemption paralleling the work product doctrine was cited 37 times—no discovery privilege was discussed.
The Department of Labor has not established that the documents for which it
In determining whether a document is subject to the work product doctrine, the threshold determination is whether the document was prepared in anticipation of litigation. Binks Mfg. Co. v. Nat. Presto Industries Inc., 709 F.2d 1109, 1118 (7th Cir.1983). Because one of the general purposes of OSHA is to investigate work related deaths and injuries, no clear cut rule can be established for determining whether these investigations fall under the work product doctrine. That an investigation was conducted does not alone cloak the documents prepared by an attorney as work product. McLaughlin v. Miles Laboratories, Inc., 124 F.R.D. 629, 630 (N.D.Ind.1988) citing Binks, et al. Here, the issue is whether the Department of Labor was merely conducting a routine investigation or preparing for a lawsuit. There is no indication in any document filed by the Department of Labor that it was preparing for litigation. Although there was in fact a fire, there has been no showing by the Department of Labor of any specific safety violation which it was preparing to litigate. Without any indication that there was a violation, the document cannot be considered work product. In fact, many Department of Labor matters are not considered for litigation in any event until after an investigation reveals violations. Martin v. Albany Business Journal, Inc. 780 F.Supp. 927, 941-943 (N.D.N.Y.1992). And in OSHA cases, litigation is generally contemplated only after the employer refuses to recognize or correct safety violations.
If we were to grant the Department of Labor’s motion to quash subpoena upon what it has thus far filed with the court, this would be tantamount to holding that all Department of Labor investigative reports are prepared in anticipation of litigation and thus are insulated from discovery. This we decline to do.
The Department of Labor has had two separate opportunities to submit appropriate materials to properly invoke the work product privilege. It was unable to do so on each occasion—even after being given specific court directions on how to properly claim a discovery privilege (p. 126, supra). Accordingly, we find little merit to the Department of Labor’s motion to quash the subpoena with respect to the documents alleging work product privilege, and as such it will be denied.
III. CONCLUSION
Based on the foregoing, the motion to quash the subpoena is denied with respect to all documents except the 44 pages of witness statements. The Department of Labor is hereby ordered to turn over all other subpoenaed documents (with possible redaction as mentioned in footnote 10 supra,) less all witness statements.
. In the initial Freedom of Information request, the Department of Labor relied on the following exemptions to the Act to prevent disclosure of the documents now being subpoenaed:
(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;
(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; and
(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel.
5 U.S.C. § 552(b).
. The validity of similar regulations restricting disclosure of government information has been upheld. See e.g. United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951); Saunders v. Great Western Sugar Company, 396 F.2d 794 (10th Cir.1968); Reynolds Metals Company v. Crowther, 572 F.Supp. 288 (D.Mass.1982). However, Raychem does not challenge the validity of the regulations.
. We note that the Department of Labor has put a great deal of reliance on the FOIA exemptions in this case concerning discovery privileges.
. In EPA V. Mink, 410 U.S. 73, 86, 93 S.Ct. 827, 835, 35 L.Ed.2d 119 (1973) the court found that discovery rules can only be applied under FOIA by rough analogies. In addition, the Supreme Court has found that Exemption 5 of the FOIA encompasses the attorney work-product doctrine. See F.T.C. v. Grolier, Inc., 462 U.S. 19, 21 103 S.Ct. 2209, 2211, 76 L.Ed.2d 387 (1983) and NLRB v. Sears, Roebuck & Co,, 421 U.S. 132, 155, 95 S.Ct. 1504, 1518, 44 L.Ed.2d 29 (1975).
. Under the previous FOIA request, the Department of Labor cited the following exemptions with respect to the witness statements: 5, 7(B), 7(C), and 7(D). See footnote 1 supra, for the text of these exemptions.
. In Raychem’s argument concerning the delayed investigation, Raychem raises a concern over lost evidence. Apparently, a light fixture, which the Chicago Fire Department could not rule out as the cause of fire, has been lost.
. In light of footnote 5, it seems that Raychem has already proceeded along this route to obtain investigation information from other parties. In addition, we note that Raychem will have obvious concerns with the accuracy of Culinary’s investigation because Culinary, as plaintiff, has a vested interest in the results of the investigation. However, there is no reason to question the reliability and independence of the Chicago Fire Department investigation.
. Standard examples of the Department of Labor's description of the documents and the correlating exemptions include:
Diary log, 1 page 5, 7a and 7e
OSHA 200 log, 14 pages 5, 7a, 7b and 7c
Office memo, 1 page 5, 7a, 7b and 7c
. The Department of Labor has cited FOIA exemptions 7(C) and/or 7(D) 27 times. Although our reading of the FOIA exemptions leads us to believe that 7(D) is the only exemption paralleling the informant's privilege, the Department of Labor has filed a cross reference in which they state that exemption 7(C) protects "the identification of a confidential source or confidential information furnished by a confidential .source.” Thus, where 7(C) is cited, we assume the informant's privilege is being raised.
. In Information Disclosure in Civil Actions: The Freedom of Information Act and the Federal Discovery Rules, 49 Geo.Wash.L.Rev. 843, 853 (1981), Toran criticizes the Seventh Circuit ACLU v. Brown decision for this very reason. In rejecting disclosure of certain Army intelligence information, the Court stated that the primary factor in rejecting disclosure was the FOIA exemption. ACLU v. Brown, 609 F.2d at 283. Toran argues that this language suggests that the Seventh Circuit is "circumventing] the numerous decisions holding that an FOIA exemption does not amount to a discovery privilege.” Id. We do not believe that the Court’s language that the "balancing test ... must be combined with the FOIA” was merely lip service. We believe that the Court considered the needs of both parties and determined that, under the facts of that case, the balance of interests weighed in favor of the Government.
. In deference to our strong commitment to the policy consideration of the informant’s privilege, if any document may contain the name, address, job description or other related information which might reveal the identity of the employee, such information can be redacted from the documents to be produced.
. The Department of Labor had not raised the work product doctrine until it filed its response brief, thus forcing Raychem to file a surreply brief. We note that we have given due consideration to both briefs and question the reason for the delayed raising of the issue, especially in light of the substantial number of documents allegedly subject to the privilege.
. Rule 26(b)(3) provides that:
a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and 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. 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.
. As noted in footnote 3, exemption 5 of the FOIA encompasses the attorney work-product doctrine.