Court Rules Papers Urging OSHA Compliance Are Not Privileged, Just ‘Smart Business'

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By David Schwartz  

Neither attorney-client privilege nor attorney work product doctrine protect strategic planning documents from disclosure to the Occupational Safety and Health Administration, despite claims by in-house counsel that it needed them in “anticipation of potential litigation,” a federal district court in Wisconsin ruled Feb. 8 (Solis v. Milk Specialties Co., E.D. Wis., No. 11-MC-72-JPS, 2/8/12).

At issue in the case before the U.S. District Court for the Eastern District of Wisconsin was Milk Specialties Co.'s refusal to turn over two documents to OSHA in response to an administrative subpoena issued by the secretary of labor. The document request arose from an OSHA inspection of the company's facility in Fond du Lac, Wis., following a report of a dust explosion that caused a fire.

The company asserted the attorney-client privilege and attorney work product doctrine when it refused to turn over its “Five Year Strat Plan” for combustible dust and a combustible dust review report, prepared by the company's vice president for environment, health, and safety.

The district court, which had original jurisdiction over the case when the company refused to comply, noted that in-house counsel for the company had requested that a company vice president prepare the documents in “anticipation of potential litigation.”

Legal Advice Is Protected

The court explained that the attorney-client privilege protects communications where legal advice of any kind is sought from an attorney. The work product doctrine states that a party need not turn over materials that are prepared in anticipation of litigation.

Milk Specialties' documents did not meet either criteria, the district court ruled. Both were “aimed at business advice and were not prepared in anticipation of litigation,” the court said, adding that the dust review report was a collection of technical diagrams related to various facilities owned by the company, as well as cost estimates for various equipment that could be installed at each facility.

The five year strategic plan, the court continued, was a type of extension of the dust review report. The plan contained a look back at steps taken during the first year, information that OSHA already knew, as well as a look ahead to what steps the company could take to meet or improve its compliance with standards of the National Fire Protection Association.

Factors Weighing Against Privilege

None of the material in these documents constituted legal advice, and the company had not carried its burden of showing that the documents were communications made to in-house counsel in the interests of obtaining legal advice.

The company asserted that the documents provided a basis for in-house counsel to offer advice on ways to mitigate additional litigation.

“That is simply smart business,” the court countered.

Two additional factors weighed against the company. The first of these was one of timing: In-house counsel requested the documents after one OSHA investigation had closed and before another began, and it was unlikely, in the court's view, that the company could have anticipated the events that led to the second investigation. The second factor is that it is harder for an employer to prove a legal privilege when, as in this case, that privilege involves in-house counsel, since such counsel are often involved in business matters as well as legal ones.

The court said that, in essence, the documents advocated the position that the company “can avoid legal trouble by complying with the law.” The fact that this position appeared in documents prepared at the request of in-house counsel did not qualify them as privileged from disclosure, the court ruled.

For More Information

The decision of the U.S. District Court for the Eastern District of Wisconsin in Solis v. Milk Specialties Co. is available at