("Hercules"). Under Fed. R. Civ. P. 72(b) and Local Rule 40D.5, Hercules has filed a timely objection to the Report and Recommendation. This Court has conducted a de novo review.
For the following reasons, the Court shall adopt the Report and Recommendation as the findings of fact and conclusions of law of this Court.
Hercules manufactures explosives at its New Jersey plant. A 1989 investigation under the Occupational Safety and Health Act resulted in the Secretary issuing citations against Hercules. A settlement was reached between the Secretary and Hercules in 1991.
In March 1993, the Secretary commenced a new investigation of Hercules. In connection with this new investigation, the Secretary issued an administrative subpoena to Hercules under 29 U.S.C. § 657(b). This subpoena sought safety audit reports prepared by Hercules from 1987 through 1992. (The Secretary later modified his request to include reports prepared only from 1989 through 1992.) Hercules objected to the subpoena on the grounds of privilege, and the Secretary filed the present petition to compel compliance with the subpoena.
The Magistrate recommends that all safety audit reports which the Secretary seeks be turned over, except for one report, dated December 4, 1991 and entitled "Attorney Directed Kenvil Plant Inspection." The Magistrate concluded that this report was protected by attorney-client privilege.
Hercules makes two objections to the Report and Recommendation: (1) the Magistrate erred in rejecting its claim of "self-critical analysis" privilege; and (2) the Court should refrain from enforcing the subpoena because, while this petition was pending, the Secretary issued citations against Hercules. The Secretary and Hercules are contesting these citations before an administrative law judge, and the safety audit reports are the subject of discovery requests in the administrative litigation. Hercules contends that, in these circumstances, the subpoena enforcement proceeding is moot.
As to Hercules's "self-critical analysis" argument, the Court has conducted a de novo review of the issue, and the Court is in agreement with the Magistrate's rejection of this privilege. The Court shall therefore adopt the well-reasoned opinion of the Magistrate.
The Court also rejects Hercules's mootness argument. When an administrative agency issues a subpoena pursuant to broad statutory authorization, a supervening civil proceeding does not render the subpoena moot. See Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. Resolution Trust Corp., 303 U.S. App. D.C. 316, 5 F.3d 1508, 1517-18 (D.C. Cir. 1993); United States v. Frowein, 727 F.2d 227, 231-32 (2d Cir. 1984); In re Stanley Plating Co., Inc., 637 F. Supp. 71, 72-73 (D.Conn. 1986).
Even if there was substantive merit to Hercules's mootness argument, the Court would reject it as untimely. Although this Court must review the Report and Recommendation de novo, Hercules is not entitled as of right to present arguments to this Court which were not seasonably presented to the Magistrate. Paterson-Leitch Co., Inc. v. Massachusetts Municipal Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988). "It would be fundamentally unfair to permit a litigant to set its case in motion before the magistrate, wait to see which way the wind was blowing, and--having received an unfavorable recommendation-- shift gears before the district judge." Id. at 991.
In this case, neither of the parties has provided the Court with the exact date that the administrative litigation commenced, but the Court gleans from the Occupational Safety and Health Review Commission docket numbers that it commenced in 1993. Respondent's Objections at 2. As the Report and Recommendation was not filed until April 5, 1994, there was ample time for Hercules to inform the Magistrate of its argument that the subpoena enforcement proceeding was moot. Hercules was not entitled to hold this argument back while waiting to see if the Magistrate's decision would be favorable.
For the above reasons, the Court shall adopt the Magistrate's finding of fact and conclusions of law. An appropriate order follows.
Dated: MAY 6, 1994
WILLIAM G. BASSLER, U.S.D.J.
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