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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 525 U.S. 1070

## Text

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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APPENDIX

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1191%3A1. Public record. Not legal advice.