When legal advice of any kind is sought from an attorney acting in that capacity, communications relating to that purpose, made in confidence by the client, are permanently protected from disclosure by the client or the attorney unless the protection is waived. United States v. Rockwell International, 897 F.2d 1255, 1264 (3d Cir. 1990). The privilege promotes the broad public interest in the observance of law and administration of justice by encouraging full and frank communications between a party seeking informed legal advice and an attorney who can provide that advice. Westinghouse Electric Corp. v. Republic of the Philippines, 951 F.2d 1414, 1423 (3d Cir. 1991) (citations omitted).
Because the privilege obstructs the truth-finding process, however, it is construed narrowly. Id. "The privilege 'protects only those disclosures -- necessary to obtain informed legal advice -- which might not have been made absent the privilege.'" Id. at 1423-24 (quoting Fisher v. United States, 425 U.S. 391, 403, 48 L. Ed. 2d 39, 96 S. Ct. 1569 (1976)).
The bulk of the materials submitted by Hercules are not protected by the attorney-client privilege. Most, such as the reviews by Hercules' Nitroglycerin Board ("NGB") and Aerospace Propulsion Standards Board ("APSB"), were made in the regular course of business, for at least two years prior to the accident in 1989, for Hercules' own internal safety reasons. Hercules has submitted affidavits from its outside attorney and two in-house attorneys stating that, after the 1989 accident and OSHA investigation, they informed plant managers that future safety evaluations were to be directed to them and were to be considered confidential and privileged attorney-client communications or attorney work-product. They claim that all post-1989 safety evaluations were done at their behest and under their direction for purposes of litigation and settlement. The attorneys' instructions supposedly were meant to increase candor in the audits. However, the evidence does not support these claims.
Noticeably absent from Hercules' submissions are any affidavits from Hercules plant managers attesting to these instructions from counsel and how their evaluation procedure changed after 1989. In fact, the affidavit of Hercules' counsel even states that "[a] number of the audits would have been performed routinely by the Kenvil facility notwithstanding the OSHA inspection and not under the attorney client or work product privilege. However, I informed the plant that now because of the pending litigation they must be made confidential." Affidavit of Michael J. Connolly, Esq. at P 7. Here, Hercules seems to be arguing that by merely labelling these materials confidential and privileged, they magically become so. However, as noted above, the attorney-client privilege protects "only those disclosures . . . which might not have been made absent the privilege." Westinghouse, supra, at 1423-24.
I have reviewed the safety audits and I see no material differences in the reports from year to year. No evidence of intensified inspection procedures or increased candor in reporting is apparent. Indeed, audits performed both pre- and post-1989 state that the auditors were quite pleased with the candor and frankness of the plant's employees and managers. The evidence simply does not support Hercules' claim that the materials at issue are protected attorney-client communications. A different conclusion might be warranted if the NGB and APSB audits were begun solely at the request of Hercules' counsel for the purpose of advising Hercules. But this is not the case, and so the argument must fail.
One document, however, dated December 4, 1991 and entitled "Attorney Directed Kenvil Plant Inspection," warrants a different conclusion. This document clearly was prepared in confidence for the purpose of obtaining legal advice regarding OSHA compliance. As such, the Secretary may obtain this document only if he has a substantial need for the documents and cannot obtain the substantial equivalent by other means without undue hardship. This burden is not met here. The Secretary, through the NGB and APSB reports, on-site inspections, and interviews with Hercules employees, can obtain the substantial equivalent of information in this document without undue hardship, and therefore it should not be turned over.
Attorney Work-Product Doctrine
The attorney work-product doctrine protects from disclosure to an adversary the work-product of an attorney prepared during or in anticipation of litigation. For materials to be eligible under this protection, it must be reasonably clear based on the surrounding facts and the nature of the materials that they were in fact prepared or obtained because of pending or anticipated litigation. In re Grand Jury Proceedings, 604 F.2d 798, 803 (3d Cir. 1979).
As already discussed, Hercules has failed to show that the materials at issue here were prepared in a fashion other than the ordinary course of business. "The claimant must demonstrate that the communication would not have been made but for the client's need for legal advice or services." First Chicago International v. United Exchange Co., Ltd., 125 F.R.D. 55, 57 (S.D.N.Y. 1989). A party may not shield facts from discovery merely by combining them with an attorney's core work product. Bogosian v. Gulf Oil Corp., 738 F.2d 587, 595 (3d Cir. 1984). Likewise, it follows that an audit regularly performed by a party does not become attorney work-product simply because the party's attorney directs that future audits be turned over to him for his use. One can only imagine the abuses of discovery which would result from such a rule. Again, a different conclusion might result if these audits were begun at the direction of Hercules' attorney. Again, though, that is not the case and, again, Hercules' argument must fail.
For the reasons discussed above, it is the recommendation of the undersigned that the Secretary's petition be granted, with the exception of the December 4, 1991 document entitled "Attorney Directed Kenvil Plant Inspection."
Pursuant to Local Rule 40D.5, the parties have ten (10) days from the receipt of this Report and Recommendation to file and serve objections to it.
Dated: April 5, 1994
Dennis M. Cavanaugh, U.S.M.J.