What Is “Discoverable” in Litigation? Documents, Email, and Communications to OSHA - A Valuable Lesson to Texas Employers

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An appeal by an oil and natural gas company that wound its way to the Texas Supreme Court provides a valuable lesson to employers about communications with OSHA, particularly when those employers are engaged in civil litigation arising from workplace accidents.

Though the case has since been settled privately by the parties, a ruling from the Fifth Circuit Court of Appeals shows that employers can be compelled to produce records of communications and reports made to OSHA and other government entities about an underlying injury-causing or fatal incident.

About the Case: In Re Pioneer

The appeal stems from a ruling out of the Fifth District Court of Appeals in Dallas, In re: Pioneer Natural Resources USA, Inc., Relator.

In that case, the Fifth District Court of Appeals heard a mandamus proceeding arising from a wrongful death and survival action filed by the estate and surviving family members of a man who, along with a coworker, was killed while performing work on a heater treater on one of Pioneer’s well sites. The decedents were not employed by Pioneer.

As alleged in the underlying trial court proceeding, the plaintiffs claim the fatal incident occurred when oil ignited on the heater treater after one of Pioneer’s employees failed to properly “lock out / tag” and “bleed off” the heater treater as required by OSHA standards:

Under OSHA Standard 1910.147, employers responsible for work involving equipment where unexpected energization, start-up of the equipment, or release of stored energy, can potentially harm employees are required to created programs and procedures for appropriate lock out or tag out devices, and to otherwise disable equipment so as to prevent injury.

Following Pioneer’s objection to discovery requests made by the plaintiffs, the trial court, in April 2020, overruled some of Pioneer’s objections while sustaining others, thereby granting and denying in part the plaintiffs’ motion to compel. In response, Pioneer moved to seek relief from portions of the trial court order, arguing that the trial court abused its discretion when ordering Pioneer to produce:

  1. Hiring, disciplinary, and employment files of employees at the accident side on date of the accident;
  2. Information regarding training provided to the Pioneer employee alleged to have failed to lock out / tag and bleed off the heater treater; and
  3. Communications between Pioneer and government entities, including OSHA, about the incident.

Though Pioneer prevailed in its arguments to vacate the trial court’s order for production of documents related to hiring / disciplinary / employment and training of the alleged at-fault employee, it suffered a major blow by losing its bid for relief from the production of communications with government entities about the incident.

In its Opinion, the Fifth Circuit ruled that the trial court did not abuse its discretion by compelling Pioneer to produce communications with government entities, including OSHA, about the accident. As noted in the Court’s opinion:

These requests are narrowly tailored to the incident made the basis of this suit and, by their nature, are necessarily limited in time. Thus, they request information that is both relevant to the suit and is likely to lead to the discovery of admissible evidence.

Pioneer initially appealed the Fifth Circuit’s ruling to the Texas Supreme Court, but has since filed a Notice of Settlement. Regardless, there is precedential value in this ruling: Other courts in Texas may be guided by the Fifth Circuit Court’s opinion going forward. As a result, the case provides a valuable lesson to any employer – all communications with OSHA or other regulators following a workplace accident should be handled with the utmost care.

Be Mindful of What You Put in Writing

Following any workplace catastrophe or incident resulting in employee injuries or deaths, employers must be aware that any communications – especially those in writing – can be discoverable and expose an employer to personal injury litigation and liability.

“Be aware of what you put in writing to OSHA,” advises OSHA defense expert Ian McNeill. “Don’t include admissions of liability in letters, e-mails, or even text messages. These may well be discoverable documents in the event that a workplace accident leads to a civil lawsuit.”

At Hendershot Cowart P.C., our OSHA law team has extensive experience representing employers following workplace accidents, and we counsel clients closely in how communications should be handled. Given the risks of concurrent litigation and significant liability exposure, and the potential for courts to compel the production of all related communications, we take great care in how we communicate with OSHA and other regulators.

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