United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

 

 

 

 APPEARANCES:

Dolores G. Wolfe, Trial Attorney; Sheryl L. Vieyra, Senior Trial Attorney; U.S. Department of Labor, Dallas, TX; Madeleine T. Le, Counsel for Occupational Safety and Health; James E. Culp, Regional Solicitor; M. Patricia Smith, Solicitor of Labor; U.S. Department of Labor, Washington, D.C.

For Complainant

 

Mark S. Dreux and Valerie N. Webb, Attorneys; Arent Fox L.L.P., Washington, DC

For Respondent

 

ORDER

Before: ROGERS, Chairman; ATTWOOD, Commissioner.

BY THE COMMISSION:

In November 2008, the Occupational Safety and Health Administration (“OSHA”) inspected the Tyler, Texas facility of Delek Refining, Ltd. (“Delek”) following an explosion and fire. In May 2009, OSHA issued Delek two citations, one serious and one willful, alleging violations of the process safety management (“PSM”) standard. During discovery, the Secretary issued Process Safety and Reliability Group, Inc. (“PSRG”) a subpoena duces tecum requesting a May 4, 2008 report (“Report”) marked “draft,” that Delek claims was prepared by PSRG to assist Delek’s counsel in the “analysis of the technical issues associated with compliance with the [PSM] standard.” Delek filed a motion to quash the subpoena on August 25, 2010, claiming that the Report was protected from disclosure under the attorney-client privilege. Administrative Law Judge Stephen J. Simko, Jr. denied Delek’s motion to quash on September 28, 2010, and denied Delek’s subsequent motion for reconsideration on December 10, 2010. Delek petitioned the Commission for interlocutory review of the judge’s order on December 20, 2010, renewing its argument that the attorney-client privilege protects the Report from disclosure. See Commission Rule 73(a)(2), 29 C.F.R. § 2200.73(a)(2). The Commission granted Delek’s petition on January 19, 2011, and stayed the judge’s orders sua sponte during the pendency of the interlocutory review. Both parties have filed briefs with the Commission in support of their positions on this issue.

The application of the attorney-client privilege to a document prepared by a third party such as PSRG is a question of first impression for the Commission. In addition, under the particular circumstances of this case, it cannot be determined whether any part of the Report is privileged without viewing its contents. Accordingly, we direct the judge to review the Report in camera and reconsider, in accordance with the principles discussed below, the extent to which the attorney-client privilege may be applicable. See Seibel Modern Mfg. & Welding Corp., 15 BNA OSHC 1218, 1228 n. 15, 1991 CCH OSHD ¶ 29,442, p. 39,685 n.15 (No. 88–821, 1991) (holding that ordinarily, a Commission judge resolves factual issues first).

Discussion

The attorney-client privilege protects “[c]onfidential disclosures by a client to an attorney made in order to obtain legal assistance.” Fisher v. United States, 435 U.S. 391, 403 (1976). The burden of proving that the privilege applies rests on the party claiming its protection. See In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447, 450 (6th Cir. 1983); In re Horowitz, 482 F.2d 72, 82 (2d Cir. 1973). A number of courts have recognized that the attorney-client privilege can extend to communications between a client and a third party hired by the client’s attorney in certain circumstances. See, e.g., United States v. Kovel, 296 F.2d 918 (2d Cir. 1961).

Here, Delek seeks to apply the attorney-client privilege to PSRG’s third party report. In his order denying Delek’s motion to quash the Secretary’s subpoena, the judge relied primarily on FTC v. TRW, Inc., 628 F.2d 207 (D.C. Cir. 1980), and Kovel, the latter being the seminal case on whether the attorney-client privilege can apply to a document created by a third party. Specifically, the judge explained that the attorney-client privilege only extends to the report of a third party when the report collects and translates client information into usable form. See TRW, 628 F.2d at 212; Kovel, 296 F.2d at 922. He determined that the Report in this case was “far more complex than merely collecting and translating into a usable form information obtained from the client” and therefore, the privilege did not apply.

We note, however, that complexity is not a factor the Kovel court or other courts that have addressed the third party report issue have considered when determining whether the attorney-client privilege applies. Although the privilege can apply to simple, ministerial acts—such as an attorney’s secretary relaying a message from a client to the attorney, or the translation of a client’s statement from one language to another—it is not limited to those actions. Rather, the privilege applies to third party communications where the following three prerequisites are met.

The first prerequisite is that the client must have provided information to the third party, rather than the third party providing its own information. Thus, the privilege will not apply where the attorney consults the third party to obtain information the client did not have, see United States v. Ackert, 169 F.3d 136, 139-40 (2d Cir. 1999), or employs the third party to gather data through studies and observations of the physical conditions at a client’s site, rather than through client confidences, see Occidental Chem. Corp. v. OHM Remediation Servs. Corp., 175 F.R.D. 431, 437 (W.D.N.Y. 1997) (citing United States Postal Serv. v. Phelps Dodge Refining Corp., 852 F. Supp. 156, 162 (E.D.N.Y. 1994)).

The second prerequisite is that the client must have sought legal advice as opposed to some other kind of advice or information. See United States v. Adlman, 68 F.3d 1495, 1500 (2d Cir. 1995) (holding that the privilege does not extend to a third party where the client was really seeking accounting advice, not legal advice); United States v. Bornstein, 977 F.2d 112, 117 (4th Cir. 1992) (explaining that the key inquiry is whether the primary purpose of third party accounting services was to allow the attorney to give legal advice); Kovel, 296 F.2d at 922 (“What is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer.”).

Finally, the third prerequisite is that in order to provide that legal advice, the attorney needed the services of the third party—often described in terms of a need for the third party to “translate” technical or complex information. See Kovel, 296 F.2d at 921-22 (privilege applies only if the third party’s services were “necessary, or at least highly useful, for the effective consultation between the client and the lawyer”); Cote, 456 F.2d at 144 (describing test as “whether the [third party’s] services are a necessary aid to the rendering of effective legal services to the client”); see also United States v. ChevronTexaco Corp., 241 F. Supp. 2d 1065, 1072 (N.D. Cal. 2002) (finding that third party assistance must be “necessary to effectuate the client’s consultation”). Indeed, the Second Circuit has described the third party’s role as that of a “translator or interpreter” who serves to “improve the comprehension of the communications between attorney and client.” Ackert, 169 F.3d at 139-40.

In sum, whether Delek has demonstrated that the privilege applies in the instant case depends on (1) whether PSRG obtained the information addressed in the Report from Delek or, instead, gathered it itself, (2) whether Delek sought legal advice (such as advice regarding an issue of regulatory interpretation) rather than technical advice, and (3) whether Delek’s attorneys needed PSRG to “improve” their comprehension of information provided by Delek so they could effectively provide legal advice to their client. After reviewing the Report in camera and making these determinations, the judge must assess whether the record establishes that the attorney-client privilege protects the Report in its entirety, in part, or not at all. If the judge finds that the record is insufficient to make the requisite determinations, the privilege cannot apply. See TRW, 628 F.2d at 213 (holding that where the proponent of the privilege has not provided the court “with sufficient facts to state with reasonable certainty that the privilege applies, the burden is not met”). Accordingly, we direct the judge to reconsider this issue in a manner consistent with this opinion.

SO ORDERED.

 

__/s/______________________________

Thomasina V. Rogers

Chairman

 

 

__/s/______________________________

Cynthia L. Attwood

Dated:July 11, 2011Commissioner

 

 

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building - Room 2R90, 100 Alabama Street, S.W.

Atlanta, Georgia 30303-3104

 

 

ORDER

 

              After further review of all cases cited by both parties and additional legal arguments, respondent’s motion for reconsideration and its motion for stay are DENIED.

 

              SO ORDERED:

 

                                                                                                                   __/s/________________________________

Date:                                                                                                         December 10, 2010                                                                    Judge Stephen J. Simko, Jr.

                                                                                                                   1924 Building, Suite 2R90

                                                                                                                   100 Alabama Street, S.W.

                                                                                                                   Atlanta, Georgia 30303-3104

                                                                                                                   Phone (404) 562-1640 Fax (404) 562-1650

 

 

This order has been sent to:

 

For the Secretary of Labor:

U.S. Department of Labor

Office of Solicitor

525 Griffin Street, Room 501

Dallas, TX 75202-5001

Attn: Dolores G. Wolfe, Esq.

 

For the Employer:

Mark S. Dreux, Esq.

Arent Fox

1050 Connecticut Avenue, NW

Washington, DC 20036

 

For the Affected Employee:

Richard Wixon, President

Kim Nibarger

Safety & Health Specialist

The United Steelworkers

Local Union 202, District 13

Five Gateway Center, Room 902

60 Boulevard of the Allies

Pittsburgh, PA 15222