Perez et al v. Clearwater Paper Corporation

Filing 21

MEMORANDUM DECISION AND ORDER. If Clearwater continues to refuse to produce the underlying documents, the parties may again contact Court staff to set up briefing schedule on the issue of whether the probative value of the requested documents outweighs the potential burden to Clearwater to produce the information. IT IS SO ORDERED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

THOMAS E. PEREZ, Secretary of
Labor, United States Department of
Labor,

Case No. 3:13-CV-00461-BLW
MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.
CLEARWATER PAPER
CORPORATION,
Defendant.

This is a whistleblower case brought under Section 11(c) of the Occupational
Safety and Health Act of 1970 (“Section 11(c)”). The Government alleges that
Clearwater retaliated against the complainant Anthony Tenny, who worked for
Clearwater as a saw filer in a sawmill located in Lewiston Idaho. They claim that
Clearwater terminated Tenny because he complained that red cedar dust at the mill
presented health, combustibility, and operational hazards.
Specifically, the Government contends that Tenny complained to Clearwater in
April and May 2010 about excessive sawdust in the air at mill, and then contacted OSHA
regarding his concerns in May 2010, which prompted OSHA to conduct an inspection of
MEMORANDUM DECISION AND ORDER - 1

the sawmill facility on May 28, 2010. In retaliation for engaging in this protected activity,
the Government alleges, Tenny was suspended (and drug tested) on June 21, 2010, and
terminated on June 25, 2010.
The Government brought this enforcement action as a result of OSHA’s
investigation. In discovery, the Government made requests for production; those requests
and the Defendant’s answers included the following:
“Request for Production No. 6: Please provide records sufficient to show every
occasion cedar was cut or processed at the Sawmill between January 1, 2010 and July 1,
2010.”
“Response: Defendant objects to Request No. 6 on the grounds that it calls for
production of documents that are not relevant or material to any issue in this action nor
reasonably calculated to lead to the discovery of admissible evidence.”
“Request for Production No. 13: Please provide records relating to every
malfunction, all maintenance, all repair, and any replacement of the ventilation control
for dust or exhaust system in the Lewiston Sawmill between January 2009 and November
2011.”
“Response: Defendant objects to Request No. 12 insofar as it is not reasonably
limited with respect to time, on the grounds said request is overly broad.” “Defendant
further objects to Request No. 12 on the grounds that it calls for the production of
documents that are not relevant or material to any issue in this action nor reasonably
calculated to lead to the discovery of admissible evidence. Subject to and without
MEMORANDUM DECISION AND ORDER - 2

waiving the foregoing objections, Defendant agrees to produce documents responsive to
Request No. 13.”
After the parties failed to resolve their current discovery disputes through the meet
and confer process and an informal mediation with the Court, the parties filed
simultaneous opening briefs. At issue here is whether the requested documents are
relevant to the Government’s whistleblower claim.
LEGAL STANDARD
The Court may order the “discovery of any matter relevant to the subject matter
involved in the action.” Fed .R.Civ.P. 26(b)(1). Relevant evidence is any evidence
tending to make the existence of any consequential fact “more probable or less probable
than it would be without the evidence.” Federal Rule of Evidence 401. Although viewed
in light of Rule 401, “the question of relevancy is to be more loosely construed at the
discovery stage than at the trial....” See 8 Wright, Miller, and Marcus, Federal Practice &
Procedure, § 2008 at p. 125 (2010). That the evidence might be inadmissible does not
preclude discovery so long as the request “appears reasonably calculated to lead to the
discovery of admissible evidence.” Fed.R. Civ.P. 26(b)(1).
ANALYSIS
The Government cites several reasons in support of its argument that the sawmill
maintenance records are relevant. First, the Government maintains that, although
Clearwater has stipulated that an employee complaining about dust could constitute
protected activity, it specifically denies that Tenny complained to Clearwater regarding
MEMORANDUM DECISION AND ORDER - 3

the dust (and has not stipulated or otherwise admitted that Tenny made a safety and
health complaint to OSHA). Clearwater also apparently denies that it believed Tenny
engaged in protected activity. To prove its case, the Government must show that Tenny
actually participated in protected activity, or Clearwater believed he did. The
Government reasons that a factfinder may be more inclined to believe that Tenny
complained to his supervisor about dust if the Government can show that dangerous
levels of dust were actually present at the sawmill.
Second, the Government argues that the requested documents are relevant to
Clearwater’s anticipated defense that its status as a V.P.P. facility shows an aggressive
approach to safety and a welcoming or neutral environment toward safety complaints.
The Government seeks the maintenance records because it believes the records will show
that Clearwater was lax about safety. Such evidence, the Government argues, would tend
to refute Clearwater’s anticipated assertions that it cared about safety and therefore would
not have retaliated against Tenny for reporting safety concerns.
Finally, Clearwater apparently intends to argue that Tenny blew small things out
of proportion, made exaggerated claims, and made the complaint to OSHA in the context
of a campaign to undermine the mill’s management. The Government expects the
requested records to show that Mr. Tenny’s safety complaint was not exaggerated or
meant for any improper purpose, but that it, in fact, was based on a serious safety
concern. Therefore, according to the Government, the requested records are relevant to
refute any claim to the contrary.
MEMORANDUM DECISION AND ORDER - 4

The Court ag
T
grees that re
equested re
ecords may be relevant to the claim and
t
ms
defenses in this mat
s
tter. It will therefore order Clearw
water’s 30(b
b)(6) depon to answ
nent
wer
the follo
owing categ
gory of ques
stions, to wh Clearw
hich
water object because it said the
ted
e
underlyi docume were no relevant:
ing
ents
ot
a. Policies an practices concernin the use, r
nd
s
ng
retention, de
eletion, stor
rage, and
destruction of produc
d
ction recor
rds includi
ing those pertaining to the
g
fu
ulfillment of orders fro custome product
o
om
ers,
ducts, and
tion of cut wood prod
what work was complet on a dai basis at the saw mill;
w
w
ted
ily
b. Policies and practic concern
a
ces
ning the ret
tention, deletion, stor
rage, and
destruction of saw mill equip
d
m
pment main
ntenance s
schedules, sawmill
eq
quipment maintenance records, and requests for mainte
m
e
a
s
enance and or repair
of sawmill equipment.
e
If Clearwate continues to refuse to produce t underlyi docume because
f
er
s
o
the
ing
ents
their pro
oduction wo
ould be too burdensom the parties may aga contact C
me,
ain
Court staff t
to
set up a briefing sch
hedule on th issue of whether the probative value of th requested
he
e
he
d
documen outweig the pote
nts
ghs
ential burden to Clearw
n
water to produce the information.
IT IS SO OR
T
RDERED.

DAT
ary
TED: Janua 15, 2015

__________
__________
_____
___
B. L
Lynn Winm
mill
Chief Judge
ited
District Cou
urt
Uni States D

MEMORA
ANDUM DECIS
SION AND ORDER - 5
R