Petition for Writ of Certiorari — Wyman-Gordon Forgings, Inc. v. McCorkle

Supeeme Ceurt,

FILED

BS 805 nev 16908

—_,

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

us

No.

W YMAN-GORDON FORGINCS, INC..,

AND WYMAN-GORDON COMPANY

Petitioners,

We

THE HONORABLE LAMAR MCCORKLE, et al.

Respondents.

Petition for a Writ of Certiorari to the

Texas Supreme Court

PETITION FOR A WRIT OF CERTIORARI

Of Counsel: DANIEL JOSEPH*

MICHAEL CONNELLY GEORGE SALEM

W. EARL TOUCHSTONE PAULA W. HINTON

MAYOR, DAY, CALDWELL MICHAEL CONVERSE

& KEETON, L.L.P. AKIN, GUMP, STRAUSS, HAUER

700 Louisiana & FELD, L.L.P.

Suite 1900 1333 New Hampshire Avenue, N.W.

Houston, Texas 77002 Suite 400

(713) 225-7000 Washington, D.C. 20036

(202) 887-4000

Counsel for Petitioners

November 6, 1998 * Counsel of Record

QUESTION PRESENTED

Where the federal Occupational Safety and Health

Administration had promised petitioner confidentiality of its

witness statements taken in investigating an industrial

accident, and those statements would accordingly be

privileged from discovery under federal law if sought from

OSHA, did the Texas Supreme Court err by allowing

respondents (plaintiffs in wrongful death actions) to obtain

those same statements in discovery from petitioner, thus

nullifying the federal privilege and depriving petitioner of the

benefit of OSHA's. promise of confidentiality?

il

PARTIES TO THE PROCEEDING BELOW

RELATORS/DEFENDANTS:

Wyman-Gordon Company

Wyman-Gordon Forgings, Inc.

DEFENDANT:

Cooper Cameron Corporation

RESPONDENT:

The Honorable Lamar McCorkle

REAL PARTIES IN INTEREST/PLAINTIFFS:

Melody Ann Nagy, Individually and as Adminstratrix of the

Estate of Steven Armand Nagy, Deceased, and as Next Friend

of Minors Nicholas Anthony Nagy and Jacob Armand Nagy;

and Louis John Nagy and Theresa Carrol Nagy

Jerene Terry, Individually and as Personal Representative of

the Estae of Donald Terry, Sr., Deceased; and Donald-Lewis

Terry, Jr.; Michael Joseph Terry; Lena Terry Davis; and

Audrey Terry

Mary Lightfoot, Individually and as Personal Representative

of the Estae of Amos Carroll Lightfoot, Deceased; and Mark

Lightfoot; Scott Lightfoot; and Rusty Lightfoot

Jimmy Galindo; Esther Galindo

Darrin Sweat; Shawna Sweat

Maria M. Uribe; Saul Uribe; and Enrique Uribe

ill

PARENT COMPANIES AND NONWHOLLY OWNED

SUBSIDIARIES OF PETITIONERS

Pursuant to this Court’s Rule 29.6 the nonwholly owned

subsidiaries of , Wyman-Gordon Company are: Wyman-

Gordon Composite Technologies; Inc.; Scaled Composites,

Inc.; Western Australian Specialty Alloys, Pty. Ltd.;

International Extruded Products, LLC: Wyman-Gordon

Titanium Castings, LLC; and WGK AVISMA Titanium. In

addition, Cooper Industries, Inc. owns 38 per cent of the

outstanding shares of Wyman-Gordon Company stock.

TABLE OF CONTENTS

Page

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REASONS WHY THE WRIT SHOULD BE

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APPENDIX

(iv)

Vv

TABLE OF AUTHORITIES

Cases Page

Canadian Imperial Bank of Commerce v. Boardwalk

Regency Corp., 108 F.R.D. 737 (D.N.J. 1986) .......... 10

Collins v. Shearson/American Express, Inc., 112

Fe UE SPE Mc RUMED: siiisidabeiniivccsstidsinsinidaipsniisinnseds 8

Eli Lilly & Co. v. Marshall, 850 S.W.2d 155 (Tex.

bg) ERR a Sie eR RITE ly COM ae TER et a RO 7,9

Friedman v. Bache Halsey Stuart Shields, Inc., 738

Sdn Se ne le BOD etait aicdeie cide a dace 6,7

Marshall v. Elward, 399 N.E.2d 1329 (Ill. 1980) ......7.8.9

Ross v. Bolton, 106 F.R.D. 22 (S.D.N.Y. 1985) ........... 6,7

In re Sealed Case, 856 F.2d 268 (D.C. Cir. 1988) ........ 6,7

United States v. Weber Aircraft Corp., 465 U.S. 792

RROD cnavidancdceceaigi nes acilbdcaseeiidieceaate ar eee 6,9

Statutes

Freedom of Information Act, 5 U.S.C. § 552 ................ 6,7

Occupational Safety and Health Act, 29 U.S.C.

a og Re RUIN TD oe CEC ATA CET SERRE TNT RE 2

OE iii ie tas eae 2

Miscellaneous:

OSHA Instruction CPL CPL 2.103 § II.A.4.e(5) ............. 3

OSHA Instruction CPL 2.45B(B)(7)(a) ...ccccceccceccccecceeee ee. 8

Texas Disciplinary Rules of Professional Conduct

ON SAMI NEE hi icinas chduet ei 6

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

No

W YMAN-GORDON FORGINGS, INC..

AND W YMAN-GORDON COMPANY

Petitioners.

V

THE HONORABLE LAMAR MCCORKLE, et al.

Respondents

Petition for a Writ of Certiorari to the

Texas Supreme Court

PETITION FOR A WRIT OF CERTIORARI

Wyman-Gordon Forgings, Inc. and the Wyman-

Gordon Company’ petition for a writ of certiorari to review

the judgment of the Texas Supreme Court in this case.

OPINIONS BELOW

The order and judgment of the Texas Supreme Court

(Pet. App. la), dated October 15, 1998, denying Wyman-

‘ Wyman-Gordon Forgings, Inc.. is a wholly owned subsidiary of Wyman-Gordon

Company. We will refer to the two as “petitioner” herein “Respondents”

generally refers herein to the plaintiffs in the wrongful death — personal injury

action who were “real parties in interest” in the state-court mandamus action of

which review is sought here

2

Gordon’s Petition for Writ of Mandamus is unreported. The

order of the Court of Appeals for the Fourteenth Judicial

District of Texas (Pet. App. 6a), dated May 7, 1998, denying

the Petition for Writ of Mandamus is unreported. The order

of the District Court for the 133rd Judicial District of Harris

County Texas (Pet. App. 2a), dated April 17, 1998, is

unreported.

JURISDICTION

The judgment of the Texas Supreme Court was

entered on October 15, 1998. No petition for rehearing was

submitted to the court. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1257.

STATEMENT

A. Statement of Facts

Following an industrial accident at the Cypress,

Texas, facility of petitioner Wyman-Gordon Forgings, Inc. on

December 22, 1996, in which eight of its employees were

killed and others injured, the Occupational Safety and Health

Administration (“OSHA”), an agency within the United

States Department of Labor, began an investigation into the

cause of the accident. Petitioner set out to cooperate and did

cooperate comprehensively with the investigation, making it

unnecessary for OSHA to use its extensive but comparatively

cumbersome investigatory powers of searches requiring

warrants, compelled production of documents, and compeiled

witness interviews and statements. See Hoeg Affid. {J 4-7

(Pet. App. 12a). Petitioner voluntarily permitted full avcess

to its facility to expedite the investigation into the cause of the

accident. It also provided all requested documents and aided

the inspectors’ review of those documents by pointing to the

relevant categories to request. Further, petitioner allowed

OSHA to conduct interviews of its employees and to take

sworn statements of other employees and managers of the

facility. Wyman-Gordon’s wide-ranging assistance assured

that OSHA could complete its investigation within the six-

3

month period required by the Occupational Safety and Health

Act, 29 U.S.C § 658(c). That investigation resulted in a

negotiated settlement under which OSHA imposed a $1.8

million civil penalty against Wyman-Gordon as well as

intensified monitoring and supervision by OSHA of Wyman-

Gordon’s operations for a two-year period, starting June 18,

1997.

Petitioner’s decision to cooperate with OSHA’s

investigation was secured, in large part, by an understanding

and express agreement with OSHA officials that the witness

statements sought by and provided to OSHA would be kept

confidential by OSHA. This confidentiality promise was

made in compliance with OSHA’s Field Inspection Manual.”

The promise of confidentiality was beneficial to OSHA’s

investigation because it induced Wyman-Gordon to provide a

level of cooperation that otherwise would have been

forthcoming only by way of a court order and then only as

necessary to comply with any such order. Petitioner’s

decision to maintain a cooperative attitude also served as a

signal to its employees to volunteer any _ information

necessary to the successful and swift completion of OSHA’s

investigation, even beyond that which might have been

specifically sought by the agency.” OSHA representatives

assured petitioner that petitioner's cooperation was

instrumental in allowing OSHA to complete its investigation

within the time set by statute. Hoeg Affid. 4 9 (Pet. App. 13a-

14a).

> OSHA Instruction CPL 2.103 § ILA.4.e(5) (Pet. App. 9a). The instruction

provides that the witness statement may be used only in OSHA proceedings, either

administrative or in court.

* Even as against OSHA's significant investigatory powers, it is possible for a

company to materially delay and impede an OSHA investigation by familiar

techniques of producing great volumes of documents and. while not resisting

interviews of employees, nonetheless refraining from volunteering which

documents are relevant and which employees have various kinds of information.

|

4

Petitioner agreed to facilitate the OSHA investigation,

even as it was certain that it would soon be facing wrongful

death and personal injury lawsuits based on the accident,

because it believed that information developed as part of

OSHA's investigation would be immune from discovery in

any future civil action. In deciding to give full cooperation to

the OSHA investigation, therefore, Wyman-Gordon relied on

the assurance that testimony in OSHA’s investigatory files

would not be used against it in subsequent litigation.

B. Procedural History

The present case arises out of the wrongful death and

personal injury lawsuit that was, as anticipated by petitioner,

brought in Texas state court by some of the survivors of the

employees killed and by some of the employees injured in the

Cypress plant accident. Melody Ann Nagy et al v. Wyman-

Gordon Company, et al, District Court of Harris County

(Tex.), 133d Judicial District, No. 97-52958. Some of the

plaintiffs in that suit, respondents here, have sought discovery

from petitioner of transcripts of the sworm statements of

Wyman-Gordon employees that were taken by OSHA’s

investigators, notwithstanding the fact that those statements

were taken and copies of those transcripts were provided to

petitioner by OSHA with the express assurance of OSHA that

they would remain confidential. Hoeg Affid. | 8 (Pet. App.

12a-13a). In fact the OSHA statements bear a “confidential”

stamp on their cover pages, and the OSHA examiner states on

the record in a number of the statements that they are

confidential. The employees who have given statements to

OSHA have been available to be deposed by the respondents

in the ordinary course of discovery.

After Wyman-Gordon objected to that discovery

request, arguing among other things that the material sought

by plaintiffs was subject to a federal investigative privilege,

the Harris County district court granted the plaintiffs’ motion

to compel production of the transcripts. The trial court’s

5

order was not accompanied by an opinion and did not

specifically address petitioner’ s investigative privilege claim.

Wyman-Gordon unsuccessfully sought review, by way of a

petition for mandamus, to the Texas Court of Appeals, and

then to the Texas Supreme Court, in both instances repeating

its argument that production of the statement transcripts

would undermine the integrity of a federal agency’s

investigation. The Texas Supreme Court by order dated

October 15, 1998, and without opinion, refused the writ of

mandamus. The Harris County trial court has Stayed its order

to allow petitioner to seek a writ of certiorari from this Court.

Pet. App. 7a.

REASONS WHY THE WRIT SHOULD BE GRANTED

The Texas state courts have erroneously disposed of

important issues of federal law concerning the confidentiality

of information obtained in the course of a federal

investigation. In so doing, Texas has decided an important

issue of federal law in a fashion that evades and effectively

destroys the federal evidentiary privilege possessed by OSHA

and denies petitioner the benefit of OSHA’s assurance of

confidentiality. There is no question that the materials here at

issue are privileged in the hands of OSHA. that such

investigatory privilege exists because without it agencies’

ability to investigate would be impaired, and that OSHA

promised confidentiality to petitioner in this case. The Texas

decision creates an important precedent because it establishes

a means to evade the privilege and to deny the protection of

promises of confidentiality made by a federal agency

conducting an investigation.

Further, respondents, plaintiffs in the Harris County

litigation, would suffer no cognizable loss of information

from reversal of the Texas Supreme Court’s decision. The

employees of petitioners who made the statements at issue to

OSHA have been available to be deposed -by counsel for

respondents in the discovery process of that state court

6

litigation.* Moreover, the procedure for taking the statements

did not allow for questions or objections by petitioner’s

counsel. The only reason why respondents would also seek

the statements taken by OSHA would be to take advantage of

the confidential, one-sided, and selective nature of the

communication between petitioner’s employees and the

OSHA investigators.”

1. A federal investigative privilege shields the

statement transcripts in petitioner's possession from discovery

in state court proceedings. Confidential information provided

to a federal government agency in the course of an official

investigation, such as the statements at issue, is subject to a

qualified privilege in order to encourage “frank and open

discussion and hence efficient governmental operations.”

United States v. Weber Aircraft Corp., 465 U.S. 792, 796

(1984).© The Court there observed that such a privilege “is

recognized because the government would not be able to

obtain the information but for its assurance of

7 Wyman-Gordon’s possession of transcripts of the statements of its employees,

which was complained of by respondents in the Texas courts as a kind of waiver

of confidentiality, is nothing of the sort. Wyman-Gordon counsel were entitled to

be present at the questioning of their employees who were managers or whose

testimony could subject the company to vicarious liability (Texas Disciplinary

Rules of Professional Conduct Rule 4.02(c)(1) and (2)). And even if Wyman

Gordon did not have copies of the transcripts of the OSHA interviews,

respondents’ counsel could not ask petitioner's employees in depositions what

questions had been asked by OSHA investigators and what their replies were

because that would just as surely breach the investigative privilege. See In re

Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988) (privilege may be asserted to

protect testimony about or other disclosure of the contents of investigative files).

* The transcripts “constitute opinion and analysis work because the witnesses

deposed as well as the questions asked reveal the nature and direction” of the

agency's investigation. Ross v. Bolton, 106 F.R.D. 22, 24 (S.D.N.Y. 1985) (finding

persuasive analogy between work product and investigative privileges).

: Although Weber Aircraft involved a claim under exemption 5 of the Freedom of

Information Act, 5 U.S.C. § 552 (b)(5), and the Court thus assumed for the

purposes of the case that the material sought by petitioners was privileged, the

Court nevertheless recognized the viability of asserting the privilege in civil

litigation. 465 U.S. at 802 n.20.

J

confidentiality.” Id. at 803 n.23. See Friedman v. Bache

Halsey Stuart Shields, Inc., 738 F.2d 1336. 1349 (D.C. Cir.

1984) (dissenting opinion) (federal courts have recognized a

number of governmental privileges, including a qualified

privilege for investigatory information, that limit civil

discovery). The investigative privilege applies to any

government agency’s conduct of a criminal, civil or

administrative investigation. In re Sealed Case, 856 F.2d 268

(D.C. Cir. 1988) (investigative privilege safeguards public

interest in integrity of civil and criminal investigations);

Marshall vy. Elward, 399 N.E.2d 1329 (Ill. 1980) (privilege

shields information obtained by OSHA in accident

investigation). See Ross v. Bolton, 106 F.R.D. 22 (S.D.N.Y.

1985) (discovery of transcripts of statements taken by NASD

as part of investigative effort denied. Owing to strong public

policy encouraging witness cooperation and in absence of

showing that information was not available from any other

source).

The Illinois Supreme Court has invoked _ the

investigative privilege to bar discovery directly from OSHA

in a case otherwise strikingly similar to the present. In

Marshall v. Elward, 399 N.E.2d 1329 (Ill. 1980), a workman

injured in an industrial accident sought to obtain an OSHA ~

investigative file, including- the statements of employee

witnesses that had been obtained by OSHA as part of its

formal investigation into the accident. for its use In a personal

injury lawsuit. The court held that the witness statements

were privileged from discovery because producing them

might interfere with OSHA’s enforcement proceedings. 399

N.E.2d at 1333. Cf. Eli Lilly & Co. v. Marshall, 850 §.W.2d

155 (Tex. 1993)(discovery of physician reports of drug

adverse reactions barred because federal regulation barred

their being made public).’

7 ; , ; ;

The existence of the exemption from disclosure under the Freedom of

Information Act for investigatory materials, 5 U.S.C. § 552(b\(7). supports this

8

While such a privilege is qualified rather than

absolute, where a party makes no showing of need for a

confidential document, the investigative privilege will bar

discovery. And where, as in the present case, the deponent

has been available for a civil deposition, the privilege should

protect the investigatory deposition from discovery. (Cf.

Collins v. Shearson/American Express, Inc., 112 F.R.D. 227

(D.D.C. 1986) (deposition transcript acquired by Commodity

Futures Trading Commission during investigation of potential

fraudulent commodities trading protected by investigative

privilege where party had opportunity to take deposition and

had acquired a copy of transcript from another source).

Moreover, under OSHA procedures, the identities of the

persons giving information to an OSHA investigation, along

with any information from which those identities could be

determined, are absolutely privileged and may not be revealed

in any circumstances. OSHA Instructions CPL 2.45

B(B)(7)(a). Pet. App. 10a. The Texas courts’ decision also

destroys the protection of this unconditional rule.

2. This Court should grant certiorari to resolve

the important question of whether the investigative privilege

can be avoided by obtaining the privileged material in

discovery not from the federal agency itself, but from the

person who supplied it to the agency under a promise of

confidentiality. In the present case the Texas courts have

ordered the production of materials from petitioners even

view even though not directly applicable (because that Act applies only to

information requests made to federal agencies). The statutory exemptions under

FOIA “reflect a congressional judgment that certain delineated categories of

documents” should not be routinely made available to the public. Friedman v.

Bache Halsey Stuart Shields, Inc., 738 F.2d at 1344 (in weighing discovery

requests for confidential government documents in the course of civil litigation,

courts must give weight to the policies underlying the statutory [exemptions]”).

The Illinois Supreme Court has also recognized the similarity between the formal

exemptions to the Freedom of Information Act and the common law investigatory

privilege. See Marshall, 399 N.E.2d at 1332 (acknowledging that FOIA

exemptions represent codification of common law privileges).

9

though the same materials would be privileged if sought from

OSHA. But what is privileged from disclosure in the hands

of OSHA should not be discoverable from the hands of those

who provided the privileged material to OSHA.® If left

undisturbed the decision below will provide the opportunity

to nullify the value of the promise of confidentiality that

OSHA made to petitioner and, indeed, to all others whose

cooperation is sought by federal agencies conducting

investigations. This will adversely affect the willingness of

such persons to cooperate and the ability of federal agencies

to maintain the confidentiality of their investigative materials.

The Texas Supreme Court holding in short provides a handy

means, useful wherever there is or can be private litigation on

the same or related subject matter as the agency investigation,

to eviscerate the rationale and effectiveness of this Court’s

holding in Weber Aircraft, the Illinois Supreme Court’s

decision in Marshall v. Elward and other decisions finding a

value in an investigative privilege. For that reason this Court

should review the decision.

When analogous issues have arisen, courts have held

that the material in the hands of the person who submitted it

to the agency must be protected from discovery just as it

would be in the hands of the investigating agency. While Eli

Lilly & Co. v. Marshall, supra, involved adverse drug reaction

reports from doctors required by federal regulation to be

submitted to and kept confidential by the Food and Drug

Administration (and thus did not involve an investigation or

the investigative privilege), the Texas Supreme Court did

recognize that allowing the plaintiffs in a private lawsuit to

obtain from the drug manufacturer information that could not

be obtained from the FDA would undermine the purposes

* We assert only that the privilege ought to apply to information in the hands of the

submitter that was generated at the request of the agency, not to previously created

information turned over to the agency. Petitioner did not abject to respondents’

discovery requests for previously created documents on the ground that such

documents had been turned over to OSHA

10

behind the regulations. Similarly, where the District of New

Jersey held that documents gathered by the New Jersey

Department of Gaming Enforcement were subject to an

investigative privilege arising under the confidentiality

provisions of the state Casino Control Act, that court held that

a witness who had made a statement as part of the

investigation could assert the privilege with respect to a copy

of his statement that was given to him by the investigating

agency. Canadian Imperial Bank of Commerce v. Boardwalk

Regency Corp., 108 F.R.D. 737 (D.N.J. 1986). The court ,

held that giving a copy of the statement to the witness did not

waive the confidentiality of the investigative privilege

because the state investigative agency’s regulations required

it to do so. The witness was then permitted to assert the

privilege to prevent undermining the effectiveness of the

investigative agency’s work and to avoid “chilling”

witnesses’ cooperation with future investigations. /d. at 740.

Finally, respondents, plaintiffs in the Harris County

litigation, would suffer no cognizable loss of information

from reversal of the Texas Supreme Court’s decision. The

employees of petitioners who gave the statements at issue to

OSHA have all been available to be deposed by counsel for

respondents in the discovery process of that personal injury

litigation. The only reason why respondents would also seek

the statements taken by OSHA would be to take advantage of

the confidential nature of the communication between

Wyman-Gordon and the OSHA investigators. This is not a

legitimate reason and should not be permitted.

—

i}

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

DANIEL JOSEPH*

GEORGE SALEM

PAULA W. HINTON

MICHAEL CONVERSE

AKIN, GUMP, STRAUSS, HAUER

& FELD, L.L.P.

1333 New Hampshire Avenue, N.W.

Suite 400

Washington, D.C. 20036

(202) 887-4000

- Counsel for Petitioners

Of Counsel:

MICHAEL CONNELLY

W. EARL TOUCHSTONE

MAYOR, DAY, CALDWELI

& KEETON, L.L.P.

700 Louisiana

Suite 1900

Houston, Texas 77002

(713) 225-7000

November 6, 1998 * Counsel of Record

APPENDIX

98-0477

la

THE SUPREME COURT OF TEXAS

Orders Pronounced October 15, 1998

*x* *

MISCELLANEOUS

IN RE WYMAN-GORDON FORGINGS,

INC. and WYMAN-GORDON COMPANY

motion for sanctions overruled

motion for expedited consideration dismissed

as moot

(Justice Hankinson not sitting)

2a

IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS

133*° JUDICIAL DISTRICT

No. 97-52958

MELODY ANN NaGy, Individually and as Administratrix of

the Estate of STEVEN ARMAND NAGY, DECEASED, and as Next

Friend of Minors NICHOLAS ANTHONY NAGY and JACOB

ARMAND Nay; and LouIs JOHN NAGY AND THERESA

CARROL NAGY

JERENE TERRY, Individually and as Personal Representative

of the Estate of DONALD TERRY, SR., DECEASED; and

DONALD LEWIS TERRY, JR.; MICHAEL JOSEPH TERRY; LENA

TERRY DAVIS; AND AUDREY TERRY MARY LIGHTFOOT,

INDIVIDUALLY and as Personal Representative of the Estate of

AMOS CARROLL LIGHTFOOT, DECEASED; and MARK

LIGHTFOOT: SCOTT LIGHTFOOT; and RUSTY LIGHTFOOT

Vv.

WYMAN-GORDON COMPANY, WYMAN-GORDON FORGINGS,

INC.. and COOPER CAMERON CORPORATION

ORDER

Plaintiffs’ Motion to Compel, Defendants’ Response,

and all evidence submitted at the oral hearing on these matters

were considered by the Court, along with authorities and oral

argument submitted. The Court rules as follows:

L. The Plaintiffs’ Motion to Compel concerning

Requests Nos. 4 and 5, generally seeking

information about a 1993 investigation at the

3a

Wyman-Gordon Grafton plant, is denied at this

time;

v4 The Plaintiffs’ Motion to Compel concerning

Request No. 6, seeking sworn staiements taken by

OSHA during its investigation, is granted;

3. The Plaintiffs’ Motion to Compel concerning

Request No. 3, seeking personnel files, is granted

in part and denied in part. Defendants are to

identify the confidential and private information,

create a privilege log describing that information,

and produce the file material which they do not

contend is confidential or private. Plaintiffs will

review the privilege log and determine whether

additional information will be sought and whether

an in Camera inspection will be necessary; and

4 If Defendants seek accelerated mandamus relief

within ten days of this Order, the Court will not

enforce paragraph 2 of this Order pending

resolution in the appellate courts.

SIGNED this 17th day of April, 1998.

/s/

JUDGE LAMAR McCORKLE

APPROVED:

MAyYorR. DAY, CALDWELL & KEETON, L.L.P.

By: /s/

MICHAEL CONNELLY

State Bar No. 04685000

W. Earl Touchstone

State Bar No. 20150500

700 Louisiana, Suite 1900

Houston, Texas 77002-2778

(713) 225-7000

(713) 225-7047 (Fax)

4a

AKIN, GUMP, STRAUSS, HAUER & FELD, LLP.

By: /s/

PAULA W. HINTON

State Bar No. 09710300

South Tower

711 Louisiana, Suite 1900

Houston, Texas 77002

(713) 220-5822

(713) 236-0822 (Fax)

Attorneys For Defendants

W YMAN-GORDON COMPANY and

W YMAN-GORDON FORGINGS, INU.

BURROW & PARROTT, L.L.P.

By: /s/

DAVID H. BURROW

1301 McKinney, Suite 3500

Houston, TX 77010-3092

(713) 222-6333

(713) 650-6333-FAX

ABRAHAM, WATKINS, NICHOLS & FRIEND

By: /s/

Nick C. NICHOLS

800 Commerce Street

Houston, TX 77002

(713) 222-7211

(713) 225-0827-FAX

Pe eT eT

Sa

MITHOFF & JACKS, L.L.P.

By: /s/

RICHARD W. MITHOFF

WILLIAM J. STRADLEY

3450 One Allen Center, Penthouse

500 Dallas

Houston, TX 77002

(713) 654-1122

(713) 739-8085-FAX

6a

Petition for Writ of Mandamus Denied and Opinion

filed May 7, 1998.

IN THE

Fourteenth Court Of Appeals

NO. 14-98-00454-CV

IN RE WYMAN-GORDON FORGINGS, INC. and WYMAN-

GORDON COMPANY, Relators

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

OPINION

On April 24, 1998, relators filed a petition for wnt of

mandamus in this Court. See TEX. Gov’t CODE ANN. §

real parties in interest filed their response.

After due consideration, we deny relator’s petition for

writ of mandamus.

PER CURIAM

Petition Denied and Opinion filed May 7, 1998.

Panel consists of Justices Lee, Anderson and Edelman

(Justice Lee not participating).

Do NoT PUBLISH — TEX. R. App. P. 47.3(B).

a

Ta

IN THE DISTRICT COURT OF HARRIS COUNTY TEXAS

133° JUDICIAL DISTRICT COURT

No. 97-52928

MELODY ANN NAGY, ef al.

VS.

W YMAN-GORDON COMPANY, ef al.

ORDER on Plaintiffs’ Request for Immediate

Release of Documents

On Plaintiffs’ request for the immediate release of sworn

statements taken from certain Wyman-Gordon employees by

OSHA following the explosion made the basis of this case,

the Court ORDERS as follows:

l. The Wyman-Gordon defendants shall deliver

to the Court on or before 10-19-98, marked

“Confidential, for Jn Camera Review,” a copy

of all sworn statements taken by OSHA in —

connection with the accident at the Cypress

plant on 12-22-96 which are in the possession

of the Wyman-Gordon defendants and their

counsel.

2. Those sworn statements shall be released to

the plaintiffs by the Court if no appeals are

taken as set out in this order.

3. The Wyman-Gordon defendants have until 10-

23-98 to file an accelerated motion for

rehearing with the Supreme Court of Texas.

4. The Wyman-Gordon defendants have until 11-

6-98 to file an accelerated application for wnt

8a

of certiorari to the Supreme Court of the

United States of America.

WN

If either of the appeals described above are

timely filed, the documents described above

shall be held by the Court and not released to

plaintiffs until the appeals are completed, or

until further order of this Court.

Signed this 16™ day of October, 1998.

/s/

Judge Presiding

Approved as to Form:

/s/ Michael Connally

Attorney for the

Wyman-Gordon Defendants

Approved as to Form:

/s/

Attorney for the Nagy Family

/s/

Attorney for [illegible] Family

9a

FIELD INSPECTION

REFERENCE MANUAL

U.S. Department of Labor

Occupational Safety

and Health Administration

OSHA Instruction CPL 2.103

A. 4. e. (5) Interview Statements. Interview statements of

(a)

employees or other individuals shall be

obtained whenever the CSHO determines that

such statements would be useful in

documenting adequately an apparent violation.

Interviews shall normally be reduced to

writing, and the individual shall be encouraged

to sign and date the statement. The CSHO

shall assure the individual that the statement

will be held confidential to the extent allowed

by law, but they may be used in court/hearings.

10a

OSHA Instruction CPL 2.45B

A. Policy and Procedures.

F Policy. OSHA’s policy regarding the disclosure of

documents in investigation and other files is governed by the

Freedom of Information Act (FOIA) as amended (5 U.S.C.

552) and the Department of Labor’s regulations in

implementation thereof (29 CFR 70). Specific guidelines for

the application of this policy to OSHA case file documents

are set forth in B.

B. Specific Guidelines.

2 Disclosure of Witnesses’ Statements. Witnesses’

statements may be disclosed when disclosure does not

interfere with enforcement proceedings, constitute an

unwarranted invasion of personal privacy or reveal a

confidential source.

a. The factual information contained in witness

statements is protected only to the degree that it may reveal

the identity of the person giving the information. To ensure

that the privacy of witnesses is maintained, all information

which may indicate their identities shall be deleted, both from

the statement and any attached or referenced materials.

b. Where there is a small number of witnesses (less than

8 as a rule), it is generally considered impossible to separate

disclosable and nondisclosable information and still maintain

the anonymity of the witnesses involved. For this reason, in

such circumstances, all the witness statements may be

withheld in full.

lla

IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS

133*° JUDICIAL DISTRICT

NO. 97-52958

MELODY ANN Nay, Individually And as Administratix of

the Estate of STEVEN ARMAND NAGY,

Deceased, et al.

W YMAN-GORDON COMPANY, ef al.

AFFIDAVIT OF MATTHEW L. HOEG

STATE OF TEXAS KNOW ALL MEN BY

COUNTY OF HARRIS THESE PRESENTS

THAT:

BEFORE ME, the undersigned authority, did

personally appear Matthew L. Hoeg, who deposed and stated

as follows:

l. "My name is Matthew L. Hoeg and | am over twenty-

one (21) years of age, and am fully competent to make this

Affidavit. I am an attorney licensed to practice law in and by

the State of Texas.

ya I am admitted to practice before all federal and state

courts in the State of Texas; various United States District

Courts outside of Texas; the United States Fifth Circuit Court

of Appeals; and the United States Ninth Circuit Court of

Appeals.

12

3. [ am a partner in “ay law firm of Mayor, Day,

Caldwell & Keeton, L.L.P., and I am in charge of the law

firm's Labor & Employment law practice.

4. On December 23, 1996, I began representing Wyman-

Gordon Forgings, Inc. with respect to the industrial accident

that occurred on December 22, 1996 at Wyman-Gordon

Forgings, Inc.'s Houston, Texas location. In this accident

eight men were killed and two others were injured. As a result

of the circumstances surrounding the accident and the

resulting deaths and injuries, we anticipated that litigation

would result.

5. As part of my duties, I served as the primary attorney

representing Wyman-Gordon Forgings, Inc. with respect to

the investigation by the United States Department of Labor,

Occupational Safety and Health Administration ("OSHA"). I

was also one of several attorneys involved in preparing the

defense of any claims by all persons injured or killed as a

result of the industrial accident of December 22, 1996.

6. During the course of OSHA's investigation, I met,

generally on a daily basis, with Mr. John Lawson, OSHA's

Assistant Area Director, and the investigator in charge of

OSHA's on-site investigation.

7 During the course of OSHA's investigation, Mr.

Lawson and I reached numerous agreements that were

designed to facilitate, and expedite, the separate, but

cooperative, investigations being conducted by OSHA and by

Wyman-Gordon Forgings, Inc. These agreements concerned,

inter alia, site access, control and operations; evidence

collection and retention; document production, usage, and

retention; and OSHA's access to, and obtaining swom

statements from, employees and agents of Wyman-Gordon

Forgings, Inc.

8. With respect to the issue of OSHA's access to, and

obtaining sworn statements from, employees and agents of

Wyman-Gordon Forgings, Inc., Mr. Lawson and I agreed that

Le eae eS

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Wyman-Gordon Forgings, Inc. and various related entities,

would make such employees available to OSHA investigators

during work hours, and that Wyman-Gordon Forgings, Inc.

would permit, and not object to, OSHA obtaining sworn

statements from these employees, in exchange for OSHA's

agreement to:

a. permit Wyman-Gordon Forgings, _ Inc.'s

counsel to attend the interview sessions of

management employees;

b. permit Wyman-Gordon Forgings, _ Inc.'s

counsel to attend the interview sessions of non-

management employees when specifically requested:

c. provide copies of all sworn statements to

W yman-Gordon Forgings, Inc.'s counsel for use in its

investigation of the accident, and in its preparation of

a defense to any resulting lawsuits that might be filed;

d. consider and treat the sworn statements, and all

information therein, as confidential and proprietary

information belonging to Wyman-Gordon Forgings,

Inc.;

¢. not disclose the sworn statements, or any

information therein, to any third parties; and

f. not use the sworn statements, or any

information therein, except in any proceeding initiated

under the Occupational Safety and Health Act (the

"Act”").

9. The agreements that Mr. Lawson and I made during

the course of OSHA's investigation, were precipitated, in part,

by OSHA's need to receive an extraordinary level of

assistance and cooperation from Wyman-Gordon Forgings,

Inc. to enable OSHA to accomplish its investigation within

the six-month time period mandated by the Act. Mr. Lawson

and other OSHA investigators, repeatedly acknowledged,

both during and after their on-site investigation, that Wyman-

Gordon Forgings, Inc.'s willingness to make such cooperative

l4a

agreements was instrumental in enabling OSHA to

accomplish its investigation within the statutorily prescribed

six-month time penod

Further, Affiant sayeth not

/s/

Matthew L. Hoeg

SWORN TO and SUBSCRIBED before me on this

the 11" day of March 1998, to certify which witness my hand

and official seal

(Seal) /s/ Bonnie Cutler

Notary Public in and for the

State of Texas