• Do I Have to Give Them That? A Primer on Documents
  • October 9, 2003 | Author: Mark N. Savit
  • Law Firm: Patton Boggs LLP - Washington Office
  • As lawyers who counsel clients on MSHA (and OSHA) matters every day, one of the questions most frequently posed to us is whether certain documents must be given to MSHA immediately upon request. While we've talked about documents in general in this column more than once in the last year or so, a recent spate of requests for advice in this area, prompts us to revisit it. Luckily, there is a general rule you can follow; unluckily, it gets a little complicated in the details.

    The general rule is that MSHA does not have the authority to demand that documents be produced immediately upon request unless the Mine Act or the regulations promulgated under it require that those documents: 1) be maintained; and 2) be made available to them. Under this general rule, for instance, you would have to make available to an MSHA inspector all records of workplace examinations conducted under 30 C.F.R. § 56/57.18002 or records of mobile equipment inspections conducted under 30 C.F. R. § 56.57.14100 or records of boiler inspections conducted under 30 C.F.R. § 56/57.13030. The corollary to the general rule is that MSHA does not have the authority to demand that any other documents be made available upon demand. In other words, under the corollary, you need not produce production records, maintenance records or personnel files, for instance, unless you consent to do so.

    The reasoning behind these rules is fairly simple. First of all, MSHA can hardly cite you for failing to produce a document that you are not required to keep in the first place. There is no MSHA requirement that anyone keep maintenance, production or personnel records (although there are numerous legal and business reasons to do so). Thus, a company that keeps such records should not be put at a regulatory disadvantage as against a company that does not. Also, although MSHA has extremely broad authority to inspect mines without a warrant, the Supreme Court has held that that authority is not unlimited and that operators have a right to protect their privacy interests. Allowing MSHA free reign to require that all documents be made available to them would infringe on that privacy interest and could render the Mine Act's warrantless inspection provisions unconstitutional.

    Of course there are exceptions. For instance, the Mine Safety and Health Review Commission has held that the home telephone number of an eyewitness to a fatal accident must be turned over to MSHA upon request. On the other hand, MSHA, after reviewing legal authorities cited by the operator, recently vacated that citation for a refusal to provide various documents (including an electricians' log) in connection with an investigation into a fatal electrocution accident.

    Three problems commonly arise that make this much more complicated than it seems based on the general rule:

    Problem 1

    If you formally challenge a citation or penalty, there is a pretrial process called "discovery" in which each side is required to produce any requested documents to the other side. In other words, even if the MSHA inspector could not get documents from during and inspection, MSHA's lawyers can very likely get them during a citation challenge. This, of course, raises the question: "If MSHA's going to get my documents eventually, why refuse to turn them over now?"

    Problem 2

    Some of the documents that you don't have to give MSHA may contain information favorable to your position, while others may contain information unfavorable to your position. Should you turn over some, but not all? If so, how do you explain the partial response?

    Problem 3

    MSHA has been known to: a) threaten companies with the issuance of subpoenas; or b) issue citations for "impeding an investigation" if an operator fails to turn over requested documents even though there is no requirement that they be turned over. What risk, then, is incurred by refusing MSHA's request in the face of such a threat?

    See, I told you it was complicated.

    There are several approaches to these problems, which may differ depending on what's at stake.

    First, before you decide whether or not to produce the documents, you must carefully review the documents to determine the consequences of their production. If all of the information contained in the documents is favorable, you may wish to provide them. If not, you may wish to explore other options. In no case should you destroy, alter, hide, amend, bend, spindle, mutilate, or in any way change the documents once they have been requested. Should you decide to produce them, pay close attention to the guidelines below:

    Second, it is very important that you confirm the exact nature and scope of the document request. Often MSHA does not understand the document system at your mine so it is important not only to make sure that you understand exactly which documents they want, but also what the date ranges are for such documents. If at all possible, MSHA's document request should be in writing. Written confirmation will prove extremely useful in resolving any confusion that might arise about the scope of the original request and what was produced (or not).

    Third, make sure you copy everything that was produced and retain the copy for your records. We also often find it helpful to number the pages consecutively in order to make it easier to refer to various documents down the road.

    We strongly recommend that counsel be involved in any decision to withhold all or part of the documents requested. Given the potential twists and turns that could arise from a refusal to produce documents, it is best to have objective counsel to evaluate potential advantages and disadvantages of any course of action. This is particularly true where legal privileges shield the documents from production.

    Documents often form the basis for either defense or offense in legal proceedings. And their potential importance in future litigation not only requires care in their creation and management, but also that care be exercised before a decision is made to provide or withhold them.