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REICH v. HERCULES

April 5, 1994

ROBERT B. REICH, Secretary of Labor, United States Department of Labor, Petitioner,
v.
HERCULES, INC., Respondent.


Dennis M. Cavanaugh, U.S.M.J. Hon. William G. Bassler


The opinion of the court was delivered by: DENNIS M. CAVANAUGH

REPORT & RECOMMENDATION

DENNIS M. CAVANAUGH, U.S. Magistrate Judge:

 This matter comes before the Court on the petition of Robert B. Reich, Secretary of Labor, United States Department of Labor ("The Secretary"), to enforce an administrative subpoena duces tecum served upon Respondent Hercules, Inc. ("Hercules") pursuant to Section 8(b) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 657(b) ("OSHA"). The matter was referred to me for the within Report and Recommendation by the Honorable William G. Bassler, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), Fed.R.Civ.P 72, and New Jersey Local Rule 40A.2. For the reasons discussed below, the undersigned recommends that the Secretary's petition be granted in part and denied in part.

 BACKGROUND

 Hercules is an international corporation which manufactures various products. Hercules maintains a plant in Kenvil, New Jersey, where explosives and smokeless powders are produced. In June 1989, an explosion occurred at the Kenvil Plant. An OSHA investigation resulted in citations being issued against Hercules in November 1989. A stipulated settlement was reached between the parties in October 1991. In March 1993, the Secretary commenced a new inspection, which included a follow-up inspection to see whether Hercules has abated its previous violations.

 In June 1993, the Secretary issued an administrative subpoena to Hercules seeking any safety audits conducted by Hercules with regard to, inter alia, Hercules' storage facilities, machine shops, and glaze barrel operations during the years 1987 through 1992. *fn1" Hercules has opposed this subpoena on the grounds that the materials sought are confidential and privileged. This action resulted. Hercules has turned over the purportedly privileged materials to this Court for in camera review.

 DISCUSSION

 Under Section 8(b) of OSHA, the Secretary has the authority to subpoena witnesses and documents in connection with an agency investigation. While OSHA itself does not provide specific subpoena enforcement standards, an administrative subpoena issued pursuant to an agency investigation is judicially enforceable if three conditions are met: (1) the inquiry is within the scope of the agency's authority; (2) the subpoena is not too indefinite; and (3) the information sought is reasonably relevant to the agency inquiry. United States v. Morton Salt Co., 338 U.S. 632, 652, 94 L. Ed. 401, 70 S. Ct. 357 (1950) (citing Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 90 L. Ed. 614, 66 S. Ct. 494 (1946)). Here, there is no dispute that the Secretary's subpoena satisfies these requirements. Hercules instead claims that the subpoenaed documents are protected by three privileges: the self-critical analysis privilege, the attorney-client privilege, and the attorney work-product doctrine. I will address each argument in turn. *fn2"

 Self-Critical Analysis Privilege

 The privilege of self-critical analysis is designed to encourage parties to engage in candid self-evaluation without fear that such criticism will later be used against them. The privilege finds its roots in the case of Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249 (D.D.C. 1970), aff'd 156 U.S. App. D.C. 199, 479 F.2d 920 (D.C. Cir. 1973), a malpractice action in which the minutes and reports from a hospital medical review committee's investigation of a patient's death were found to be privileged. The court reasoned that confidentiality would facilitate the free flow of information necessary to effectively investigate the matter, that to require disclosure would stifle that free flow of information, and that there was an "overwhelming" public interest in allowing the hospital committee to proceed on a confidential basis. Hercules argues that the materials sought by the Secretary deserve this protection, and to require disclosure would defeat the public's interest in having companies like Hercules voluntarily work to enhance safety in their operations. Although this argument does have some appeal, it does not succeed here.

 While the privilege has been recognized in the context of private litigation, it has regularly been rejected in cases where documents are sought by a governmental agency. See, e.g., Federal Trade Commission v. TRW, Inc., 202 U.S. App. D.C. 207, 628 F.2d 207 (D.C. Cir. 1980); Emerson Electric Co. v. Schlesinger, 609 F.2d 898 (8th Cir. 1979); United States v. Noall, 587 F.2d 123 (2d Cir. 1978), cert. denied 441 U.S. 923, 60 L. Ed. 2d 396, 99 S. Ct. 2031 (1979); Reynolds Metals Co. v. Rumsfeld, 564 F.2d 663 (4th Cir. 1977), cert. denied 435 U.S. 995, 56 L. Ed. 2d 84, 98 S. Ct. 1646 (1978); United States v. Dexter Corp., 132 F.R.D. 8 (D.Conn. 1990). As the Court of Appeals for the District of Columbia noted, "this conclusion makes sense in light of the roots of the privilege in the public interest, and the strong public interest in having administrative investigations proceed expeditiously and without impediment." 628 F.2d at 210; see also U.S. v. Dexter, 132 F.R.D. at 9-10 ("a court should take cognizance, in an action brought by the United States to enforce duly enacted laws, of Congress's role in declaring what is in the public interest. . . . Application of the 'self-critical' privilege in this action would effectively impede the Administrator's ability to enforce the Clean Water Act, and would be contrary to public policy"). Here, the public interest is served by allowing the Secretary to proceed freely in his investigation of potential OSHA violations.

 In addition, courts have distinguished application of the privilege during discovery, where the court has broad discretion under the Federal Rules of Civil Procedure, from situations where enforcement of an administrative subpoena is sought. See FTC v. TRW, supra; U.S. v. Noall, supra. In those cases, the particular administrative agency was granted broad powers of investigation and subpoena by Congress, and those grants were given appropriate deference by the courts. Likewise, Congress here has given the Secretary extremely broad investigatory and subpoena power, see Martin v. Hammermill Paper, 796 F. Supp. 1474, 1475 (S.D.Ala. 1992), and it is not this Court's place to second-guess Congress, id. (citing Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 866, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984)).

 Therefore, I find that the self-critical analysis privilege cannot protect the materials sought ...


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