FORTE BROTHERS, INC.  

OSHRC Docket No. 79-5655

Occupational Safety and Health Review Commission

October 31, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor, USDOL

Richard E. Simms and G. Chandler Beals, for the employer

OPINION:

DECISION

BY THE COMMISSION:

An interlocutory ruling of Administrative Law Judge Foster Furcolo is before us pursuant to former Commission Rule 75(c). n1 Judge Furcolo certified that a sua sponte discovery order issued by him raises an important question of law about which there is substantial ground for difference of opinion and immediate resolution of which would materially expedite the proceedings.

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n1 This appeal was certified under former rule 75(c) of the Commission's Rules of Procedure, 29 C.F.R. §   2200.75(c), which provides in pertinent part:

Rule 75 Interlocutory appeals; special; as of right.

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(c) Interlocutory appeal from a ruling of the judge shall be allowed as of right where the judge certifies that: (1) the ruling involves an important question of law concerning which there is substantial ground for difference of opinion; and (2) an immediate appeal from the ruling will materially expedite the proceedings.

Interlocutory appeals are now governed by a new rule 75 which became effective on January 1, 1980.   44 Fed. Reg. 70106, 70111 (1979), [to be codified in 29 C.F.R. §   2200.75].

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The order directed the Secretary of Labor ("Secretary") to make available to the Respondent, Forte Brothers, Inc., documents which the Secretary claimed were protected from discovery by the informer's privilege and the work product doctrine. The judge issued the order on his own motion after Respondent requested the documents pursuant to Rule 34 of the Federal Rules of Civil Procedure and the Secretary filed with Respondent objections to the request.

On appeal the parties argue the merits of the judge's order.   In addition, the Secretary contends that the judge erred in issuing the order sua sponte and without affording the Secretary an opportunity to present argument.

We agree with the Secretary that the judge erred in issuing the order sua sponte. Rule 34 of the Federal Rules of Civil Procedure provides for an extrajudicial discovery procedure whereby a party seeking production of documents may submit a request directly to the opposing party without leave of court. n2 The opposing party must then serve a response either agreeing to the request or specifying grounds for objection.   [*3]   n3 If the request is objected to, the discovering party may file a motion pursuant to Federal Rule of Civil Procedure 37(a) for a court order compelling production.   If the discovering party elects not to file a motion, the matter ends as it began, extrajudicially.   8 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE, §   2282 (1970).

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n2 The Federal Rules of Civil Procedure apply to Commission proceedings to the extent that the Commission has not adopted a different rule.   29 U.S.C. §   661(f); 29 C.F.R. §   2200.2(b).   Because the Commission has no rule governing discovery of documents, Rule 34 of the Federal Rules applies.   See Perini Corp., 77 OSAHRC 136/A2, 5 BNA OSHC 1596, 1976-77 CCH OSHD P21,967 (no. 11007, 1977).

n3 Rule 34 of the Federal Rules of Civil Procedure provides, in pertinent part, as follows:

Rule 34.   Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes.

(a) Scope.   Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on his behalf, to inspect and copy, any designated documents. . . .

(b) Procedure.   The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party.

The party upon whom the request is served shall serve a written response within 30 days after the service of the request. . . .   If objection is made to part of any item or category, the part shall be specified.   The party submitting the request may move for an order under Rule 37(a) with respect to any objection to or other failure to respond to the request or any part thereof. . . .

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In the instant case, Judge Furcolo ordered production of documents although Respondent had not sought judicial intervention under Rule 37(a).   Subsequent to the judge's order the Secretary stated that he is withdrawing his objections based on the work product doctrine. However, he continues to object to disclosing information that would tend to identify informers in the case.   Since this interlocutory appeal was certified, the Commission has dealt comprehensively with the question of disclosure of information regarding informers' identities, including informers' statements.   Massman-Johnson (Luling), 80 OSAHRC    , 8 BNA OSHC 1369, 1980 CCH OSHD P24,436 (No. 76-1484, 1980), pet. for review filed, No. 80-3413 (5th Cir. June 2, 1980).   From the present record, the issues raised by the parties may be resolved under the principles set forth in Massman-Johnson. Thus, we will remand the case to the judge at this time.   In the event of a proper motion by the Respondent to compel discovery, the judge may issue an appropriate order after notice and an opportunity for the parties to be [*5]   heard.

Accordingly, the judge's order is vacated, and the case remanded for further proceedings consistent with this opinion.

SO ORDERED.