On February 8, 2012, the E.D. Wisconsin issued a decision in Solis v. Milk Specialties, Case No. 11-MC-72, finding that an internal “five year strat plan” for combustible dust hazards and an associated “Dust Report” were not privileged and therefore must be produced to the Occupational Safety and Health Administration (OSHA) in an ongoing OSHA dust hazard inspection. Milk Specialties had been inspected by OSHA and cited for dust hazards. Following the resolution of that citation, Milk Specialties undertook a company wide analysis of dust issues and drafted a “five year strat plan” and a “Dust Report”. The analysis was undertaken and the documents were drafted by the Vice President of Environmental, Safety & Health at the request of in-house counsel “in anticipation of litigation.” Thereafter, OSHA opened a new inspection at a different Milk Specialties facility and subpoenaed these documents in that inspection. Milk Specialties refused to produce the documents under a claim of privilege.
The Court found that the documents were not protected under the attorney-client privilege or work product doctrine despite being prepared at the request of in-house counsel. The Court reasoned that the documents were not relevant to legal advice or analysis being rendered by in-house counsel. Rather, it was in the nature of business advice and, therefore, the documents fell outside the attorney-client privilege. Likewise, the Court found that the documents were not truly prepared in anticipation of litigation, even though in-house counsel had so stated on the face of the document, because there was no current or threatened litigation. Therefore, the documents were not protected by the work product doctrine.
Accordingly, employers should be aware that internal investigations undertaken to determine OSHA compliance obligations may not be afforded any privilege, even if done at the direction of in-house counsel.