“OSHA’s Confidentiality Provisions May Not Preclude Consultant Depositions”

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By:Daivy P. Dambreville, The Legal Intelligencer

June 16, 2016

In an effort to comply with the regulations established by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA), employers can request from the agency a voluntary inspection to determine whether they are in compliance. These voluntary inspections are often conducted on behalf of OSHA by third-party consultants that receive federal grant money. Following an inspection, the consultants draft written reports detailing their findings and recommendations. Under OSHA’s regulations, these written reports are deemed confidential and may only be disclosed to the employer for whom it was prepared. According to OSHA, the disclosure of the written reports—to parties other than the employer—would adversely affect the operation of its consultation program, and breach the confidentiality of commercial information held by the employer.

Yet, in a recently decided case, a plaintiff successfully sought to depose a consultant regarding the findings of a voluntary inspection, after an employer disclosed the written report during discovery. As a matter of first impression, the Superior Court of Pennsylvania was tasked with determining whether allowing the deposition of a consultant would violate OSHA’s confidentiality provisions.

In Price v. Simakas, 133 A.3d 751, 753 (Pa. Super. Ct. 2016), Tracy Price sustained injuries while working on the premises of her employer. According to the decision, the injuries occurred when Price’s hair became tangled in a polymer mixing machine that she was unable to power off. Price subsequently brought legal action against Simakas Co. Inc. and others, alleging that her employer contracted with the defendants to conduct a voluntary OSHA inspection, and that the defendants were negligent in their duties. Of note, a week prior to the accident, the Indiana University of Pennsylvania and its employees (consultants) conducted the voluntary inspections at the employer’s facility.

While in litigation, the defendants disclosed the consultants’ written reports in discovery. The defendants’ expert thereafter reviewed the reports and described the inspection as “wall-to-wall,” which did not cite any violations concerning the mixing machine. Price later noticed the deposition of the consultants. In response, the consultants filed a motion to quash the subpoenas asserting that OSHA regulations prohibit them from testifying about a voluntary inspection. The trial court denied the consultants’ motion, and the issue was appealed.

On appeal, the Superior Court was tasked—in part—with determining whether the confidentiality language in 29 C.F.R. Section 1908.6(g) and (h) precluded the depositions of the consultants.

Confidentiality Provisions

Under 29 C.F.R. Section 1908.6(g)(1) and (2), “A written report shall be prepared for each visit that results in substantive findings or recommendations, and shall be sent to the employer. … Because the consultant’s written report contains information considered confidential, and because disclosure of such reports would adversely affect the operation of the OSHA consultation program, the state shall not disclose the consultant’s written report except to the employer for whom it was prepared.”

Under 29 C.F.R. Section 1908.6(h), “The consultant shall preserve the confidentiality of information obtained as the result of a consultative visit which contains or might reveal a trade secret of the employer. … Disclosure of information which identifies employers who have requested the services of a consultant would adversely affect the operation of the OSHA consultation program as well as breach the confidentiality of commercial information not customarily disclosed by the employer.”

Consultants May Testify

Relying on the confidentiality language in these provisions, the consultants argued that they could not be compelled to provide oral testimony regarding the voluntary inspection.

In an effort to narrow the issues in dispute, the Superior Court noted that the defendants disclosed the consultants’ written reports during discovery without objection. As such, the only relevant issue is whether OSHA regulations precluded the consultants from providing oral testimony. Ultimately, the Superior Court found that precluding the depositions of the consultants could not serve the confidentiality interests described in the federal regulations as there was no argument set forth that the consultants were privy to any trade secrets, and precluding the depositions would not protect the confidentiality interests described in the regulations.

To sum up, the Superior Court has reasoned that, while OSHA’s confidentiality provisions assure that consultants may not disclose the written reports prepared in connection with a voluntary inspection, consultants are not precluded from providing oral testimony where an employer discloses written reports without objection during the discovery period. Given this recent decision, it appears that the disclosure of a written report by an employer eliminates, at least in part, an employer’s confidentiality protections under OSHA regulation. •

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