Cal/OSHA Discovery: Tools, Tactics, and Practice Pointers

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Karen Tynan: Hello, everyone, and thank you for joining us for the Ogletree Deakins podcast. My name is Karen Tynan and I’m a shareholder in the Sacramento, California office, and chair of the Workplace Safety Practice Group. Here with me today is Kevin Bland, my colleague and Orange County shareholder. We’re talking about Cal/OSHA discovery today. What do you think of that, Kev?

Kevin Bland: Oh, I love discovery. No. I think it’s a good topic because it’s a very misunderstood subject.

Karen Tynan: Yes, because it’s different than other states, it’s different than fed OSHA discovery and it’s different than civil discovery. And a lot of clients and employers get a little disappointed or confused, so I actually think this is one of our most important podcasts we’ve done in a long time.

Kevin Bland: Oh, I agree. And I do think we have to segment it into two what I want to call portions of discovery. You have discovery during an inspection and then you have discovery once you’ve gotten citations, right, Karen?

Karen Tynan: Right. Well, during an inspection, it’s a document request and witness interviews, and you could have some subpoenaed depositions. And then after your citations are appealed, there’s really discovery process, but it’s very different from fed OSHA and from other states. And so, during your investigation, there’s the standard document request and witness interviews, and those go along in a fairly formulaic way, wouldn’t you say?

Kevin Bland: I would. The reason I bring up those topics in this is because they give you three days to respond on their document request and put all the stuff and there’s a lot of confusion. That is not statutory, it’s arbitrary. So, people panic, “I got to get all these documents together in three days.” You don’t.

Karen Tynan: Right.

Kevin Bland: No matter what they say.

Karen Tynan: Right.

Kevin Bland: And so don’t panic when you get the three day-

Karen Tynan: Extensions are the norm.

Kevin Bland: Yeah. And even if they say, “No, I’m not granting you an extension,” it doesn’t matter.

Karen Tynan: What’s the inspector going to do? He’s got to run to court and get a motion to compel.

Kevin Bland: Right. Well, they have to subpoena it, actually.

Karen Tynan: Yeah.

Kevin Bland: And if they subpoena it, how long do you have to respond to the subpoena?

Karen Tynan: 10 days. 10 days or more.

Kevin Bland: Yeah. Well, for documents it’s 30 days.

Karen Tynan: Yeah.

Kevin Bland: And for witnesses or whatever. You actually have some teeth in things that protect you with a subpoena so it’s not a bad thing, but I’m getting ahead of myself.

Karen Tynan: So, in Cal/OSHA, different from civil, we have discovery that happens during an appeal, Kevin, and I want to talk to you about one of the tools. It’s document production, demanding documents. Can you tell me some of your strategies around demanding documents from Cal/OSHA? And some people just say, “I’m ordering the file.”

Kevin Bland: Yeah.

Karen Tynan: That’s the old way people used to say it. But tell me what you demand in your initial document production from Cal/OSHA from the division?

Kevin Bland: Oh, and I’m glad you asked that because this is an issue. As soon as the appeal is filed, we simultaneously send our first discovery request for production of documents and witness. Now, I know you do the same thing.

Karen Tynan: Yes, exactly.

Kevin Bland: We don’t just ask for the file.

Karen Tynan: Right.

Kevin Bland: What do we ask for? We ask for all notes, all emails, all that standard stuff which would be in the file.

Karen Tynan: Right.

Kevin Bland: But in addition to that, we ask for, “Okay, what’s the training?”

Karen Tynan: Right, the inspector’s training.

Kevin Bland: The inspector’s training or any person from the division that they intend to proffer to testify at trial. And when we ask for the training, we don’t just ask for that letter that says, “Hey, they’ve had all their mandated training.” And this always slays because me if we send a letter back to them in response to a violation for lack of training, we just send a letter to them that said, “Hey, they’ve had all their training,” what would happen?

Karen Tynan: They’d have a stroke.

Kevin Bland: Yeah, yeah, and we couldn’t defend this in a case.

Karen Tynan: Right.

Kevin Bland: So, we ask for the PowerPoints from the training, we ask for the outlines. We ask for who was the trainer, what was their experience?

Karen Tynan: Right.

Kevin Bland: All the things they ask of us.

Karen Tynan: Which is fair, right?

Kevin Bland: To me, that’s fair. In addition to that, this is another one that we ask for. Think about this. How many times have you been in trial and they ask, “What’s the basis of classifying this for a series?”

Karen Tynan: Right.

Kevin Bland: What’s the standard answer, Karen, from the inspector on the stand under oath?

Karen Tynan: That based on his experience, he testifies that it was likely that, let’s say a fall case, that a person falling from six feet would suffer a serious injury.

Kevin Bland: Yeah. And then the follow-up question you would ask is, “What did you base that? How do you know that?” And then what do they do? They start telling them, “Well, I had these 12 cases that were just like this case,” right? Okay. Well, if you don’t have those cases, how can you cross-examine them?

Karen Tynan: Right, exactly.

Kevin Bland: So, it’s a long way to get to I also ask if they are going to rely on any previous cases, I want the files for those.

Karen Tynan: Exactly.

Kevin Bland: Yeah. Now, getting them is another story. We won’t get into that.

Karen Tynan: Sometimes you get a tussle.

Kevin Bland: Yeah.

Karen Tynan: You talking about asking for, quote-unquote, “other files, other inspections.” I think this is a very good practice pointer and for employers to understand that if you have a repeat or you are involved in a citation for a multi-employer work site, you are not just interested in the documents from that one inspection, right, Kev?

Kevin Bland: Oh, exactly, and I’m glad you brought up multi-employer. So, let’s say you are the subcontractor and another subcontractor left the guardrail down, and they inspected them and the general contractor.

Karen Tynan: Right.

Kevin Bland: What files are you asking for? Because they’re doing three investigations on the site.

Karen Tynan: With different numbers.

Kevin Bland: With different numbers. Ask for all three. Is there information they’re getting from the other that helps you or hurts you?

Karen Tynan: Right.

Kevin Bland: Whatever, you’re entitled to all of those.

Karen Tynan: Witness interview notes, things like that. So, I like the practice pointer around making sure you’ve asked for all the inspection files related to your inspection, especially if your multi-employer or if it’s a repeat, you need to get that file from the previous inspection that’s based on a repeat. Is that fair enough?

Kevin Bland: No, exactly. And that’s another one, when it’s a repeat.

Karen Tynan: Right.

Kevin Bland: Trying to get that original file and they’ll say, “Well, it was your case.” Not meaning yours, Kevin Bland or Karen Tynan, but your client’s case.

Karen Tynan: Right.

Kevin Bland: Well, they may not have ever appealed it.

Karen Tynan: Right.

Kevin Bland: I’ve had that happen where they’ve got it, “I’m just going to pay the 5,000,” and then all of a sudden…so, you’re entitled to those, right?

Karen Tynan: Absolutely.

Kevin Bland: So, that is a common ask. So, this is when we take over, and I know you’ve had this, a case that has been handled by someone else or by the employer themselves. They say, “Oh, I’ve already got the file,” or “I already know what’s going on.” Well, what did you ask for?

Karen Tynan: Yeah, they asked for the file.

Kevin Bland: Yes.

Karen Tynan: And maybe they don’t have the emails between the inspector and another employer. Or something I got recently in a file, Kevin, was text messages. I demanded the text messages between the inspector and a witness. Because I knew the inspector had been texting with a witness and a little suspicious of the content of those texts, so I wanted to make sure I got those.
Now, that’s the document demands. We talked about how we send that out right away. So, the same day the appeal gets filed, the document request is customized absolutely for each case because we may have to get that repeat file or we’re interested in training documents around a particular citation. Or if it involves a serious accident related, if someone was injured, we also need to ask for the medical evidence, right?

Kevin Bland: Yeah, exactly.

Karen Tynan: So, there’s a lot that goes into the document requests. And you also mentioned the demand for the witness list also as another first demand we make. And it’s not just, “Whose your witness, Mr. Cal/OSHA or Mrs. Cal/OSHA?” It’s very specific about witnesses, experts, whose going to testify. It’s structured, that witness demand is structured to make sure we know who has critical information.

Kevin Bland: And while we’re on the thing of witness, sometimes they’ll send us a discovery request and ask for witnesses.

Karen Tynan: Yeah.

Kevin Bland: And there may be some we have, but I always put a little caveat in the bottom, “And we reserve the right to call any of them you’ve listed already in this document.”

Karen Tynan: Yes, for sure. And then I’ll share another practice pointer. On my witness list, and I’ve never had it challenged, I’m going to knock on wood here, Kevin. I always put the person most knowledgeable regarding the citations as a little relief valve for me in case someone comes out of the woodwork for me. And do you know, no one has ever challenged that?

Kevin Bland: Really? That’s great.

Karen Tynan: Maybe I should be careful about saying it in a podcast.

Kevin Bland: Yeah. But I’m glad you did because I’m going to steal that idea. I haven’t been doing that. So, I like it, I like it, I like it. I like it.

Karen Tynan: So, we also have the ability during an appeal in our discovery to issue subpoenas. It’s not something I do frequently, Kev. I might do it for training records. Let’s say we had someone…you know how framers jump around, right?

Kevin Bland: Yeah, yeah.

Karen Tynan: But what if we wanted, this framer says, “You know what, I had heat illness training last year at my other employer. I came over here, yes, I had heat illness training,” but maybe we need to know what training we had. Or that he’d been trained on, or some worker had been trained on a roto-hammer, or on–

Kevin Bland: Skill saw, ladders.

Karen Tynan: Right.

Kevin Bland: Because their ladder training at ABC Framing is no different than XYZ training.

Karen Tynan: For sure.

Kevin Bland: So, sometimes when they do their new hire packet it’ll say, “What is your previous training in this one?”

Karen Tynan: Yes.

Kevin Bland: Because otherwise, they may work for three different framers in a 12-month period, not because they’re bad employees and not because they’re bad employers-

Karen Tynan: Because the nature.

Kevin Bland: Because the nature, right. You get these five houses down, then the next five aren’t going to start for three more weeks. They go to work for another one in between and back vice versa. And if you had to retrain a 20-year experienced carpenter every time they come back, yeah.

Karen Tynan: So, I’ve issued subpoenas for training records, where I want to…or you know how you’ll get a guy out of the union hall, and he’s trained? Let’s say he’s an operator or we get our journeyman lineman. Well, I may need to issue a subpoena to the IBEW.

Kevin Bland: Right.

Karen Tynan: Or somewhere else, the Operators Union, and say, “I need this guy’s training records.” And that’s where I see the most. And sometimes we will have to issue subpoenas for, say medical records or phone records. Let’s say we need something about when something was called in.

Kevin Bland: Yeah.

Karen Tynan: Things like that. It’s not used as much as I would say people would think, like in civil litigation, but it is a tool we can use.

Kevin Bland: Yeah. No, I agree. And we don’t see it very often.
Now, besides document requests, the other tool we have…by the way, when I talk about this tool, that’s the last of the tools you have in discovery in our arena.

Karen Tynan: Right.

Kevin Bland: Is depositions. Now, just as a trend, I find you take more depositions in your cases than I do, just for whatever reason. Maybe it’s the complexity of the cases that you have.

Karen Tynan: They’re just different ways to skin the cat.

Kevin Bland: Yeah, yeah. And I will, on occasion. But you take more. Why is it? What is it that you like about the deposition?

Karen Tynan: I like, in a deposition of an inspector that I think maybe hasn’t done a great investigation, I like to use the deposition as reality check for both the inspector and the district manager, and possibly legal counsel, that this is not the person they want to hang their hat with, so to speak.

Kevin Bland: Yeah.

Karen Tynan: And certainly, if I think the inspector did an amazing job, do I want his sworn testimony about how phenomenal it was? No!

Kevin Bland: Right.

Karen Tynan: But I tend to use it as a way to get towards settlement if I’m trying to get a good deal. Also, sometimes I’ll depose the inspector if I see it’s a highly unusual case where I think maybe the inspector doesn’t have knowledge about a particular machine, or electricity. We end up with these induction cases.

Kevin Bland: Right, right, right.

Karen Tynan: Or contact cases. I went to an engineering school for college for my undergrad. I never took electrical engineering, but I worked on ships. You were an ironworker, you and I both had careers before law school. I feel like I’m pretty decent at understanding engineering concepts. But to understand electricity is very difficult and I find inspectors in electrical cases cannot explain induction, static, contact, any kind of device was.

Kevin Bland: Well, just the term conductor.

Karen Tynan: Right.

Kevin Bland: We had this in a trial; I know we’re going to talk about trials on another podcast.

Karen Tynan: Yeah.

Kevin Bland: And they were literally trying to figure out, “We mean the wire that’s going from one pole to the next is the conductor in this one.”

Karen Tynan: And especially if you have an issue around grounding in electrical cases.

Kevin Bland: Yes.

Karen Tynan: Where maybe your grounding failed or your grounding wasn’t done properly.

Kevin Bland: Or it was done right and they’re claiming it was done wrong. That’s more what happens.

Karen Tynan: Yes, 100%, Kev.

Kevin Bland: Yeah, yeah.

Karen Tynan: And I can tell you this, Kevin. When I’ve asked a Cal/OSHA inspector to explain the concept of grounding, it was the biggest word salad I ever heard. And I thought, “Well, okay, if that’s what you’re going to say at trial, I love it!”

Kevin Bland: Yeah, exactly. Exactly. That’s interesting, it’s a little off, but this is where the deposition I think [inaudible 00:15:03]. Sometimes the citation is based on somebody got hurt, so you did something wrong.

Karen Tynan: Yes.

Kevin Bland: Not on facts that support the actual alleged violation.

Karen Tynan: The specificity.

Kevin Bland: Yes.

Karen Tynan: And I do think you need to be cautious in deposing inspectors because some … Let’s say an employer or a client says, “I want to depose that inspector and beat the crap out of him and get some good testimony.” Well, the flip side is you’re putting some of your cards on the table, Kev.

Kevin Bland: Yeah.

Karen Tynan: And I know that that can be a concern of yours and it’s certainly something I think about. So, you’re basically giving a dry run of what you might do a trial.

Kevin Bland: No, exactly. And that’s been the sign they’re not taking some, just like the same reasons, you described. An example was one, there was a trench and you could see the guy standing in it, it was five-foot tall and went to his knee.

Karen Tynan: Right.

Kevin Bland: And they gave us a failure to put shoring up.

Karen Tynan: There you go.

Kevin Bland: And I’m like, “Okay, this is right for this because you sold a picture and it’s not giving anything away in the trial strategy.”

Karen Tynan: Yes.

Kevin Bland: And then other, I think the other big one is the technical issues a lot of times that come up with depositions. So, I think at the end of the day, it is a good tool to use but think about it carefully before you use that tool because there’s pros and cons to it.

Karen Tynan: Definitely pros and cons, and it’s not the same as, say a civil case. Where in a civil case, you’re going to say, “Well, we’re going to end up deposing the plaintiff, and their supervisor and the other witnesses.” It is a more thoughtful decision in a Cal/OSHA appeal.

Kevin Bland: Yeah. And to me, the reason for that is, and these are two tools we don’t have that you have in those examples, fed OSHA and civil cases, is request for admissions and interrogators.

Karen Tynan: Right.

Kevin Bland: Before you ever take that deposition, you have all the requests for admissions, you have all the sworn interrogatory responses. Which for those that aren’t attorneys, interrogatory is you ask them questions they have to answer and swear to.

Karen Tynan: Yes.

Kevin Bland: And then you can come up with inconsistencies from the deposition or delve into things that you think are BS in there. And so that’s why you–

Karen Tynan: Exactly.

Kevin Bland: –see it used so much more at fed OSHA and so much more in civil, and other states that have more discovery tools at their disposal.

Karen Tynan: Right, like Washington up in L&I, right?

Kevin Bland: Yeah.

Karen Tynan: I tend to depose more inspectors up there. So, for employers, think about what Kevin just said. In fed OSHA cases and in some other states, you do have special interrogatories and requests for admissions. Those are very specific discovery tools that you can use to get answers. We do not have those in California at all. And sometimes you’ll see, like Kevin will see a dabbler, maybe somebody that’s doing their one-off Cal/OSHA case. Or if a worker’s comp attorney has party status.

Kevin Bland: Yeah.

Karen Tynan: I’ve had them send my client interrogatories and then I send them a lovely little note back. “Thank you so much, we won’t be answering these.”

Kevin Bland: Oh, yeah, yeah. Well, and same thing. Cal/OSHA has tried to say, “Hey, can you answer these five questions in an investigation?” No, we don’t do interrogatories. You can interview or you can ask for documents, that’s it.

Karen Tynan: For sure. And I like how you said that, Kevin, because I’ve seen inspectors take a document request and turn it into an interrogatory. Where, in their document requests, they’ll check the box, “IIPP, heat illness plan, training documents for Mr. Kevin Bland, Kevin Bland’s discipline records.” Then it’ll say, “Who is Kevin Bland’s boss? How long has Kevin Bland worked there? What PPE was Kevin Bland wearing that day?”

Kevin Bland: Right.

Karen Tynan: And I’m thinking, “Dude.”

Kevin Bland: Exactly, exactly.

Karen Tynan: So, then we just nicely respond, “Thank you so much, those are not document requests. Those appear to be interrogatories, and we won’t be doing that.”

Kevin Bland: Exactly, exactly. So, if Cal/OSHA doesn’t respond to our discovery request, real quick, Karen. What do we do? How can we do that?

Karen Tynan: Right.

Kevin Bland: How can we make them respond?

Karen Tynan: Well, we follow, similar to civil cases or anything else, you try to, quote-unquote, “meet and confer.” You follow up, give them a little tickle. They’ve got 30 days to send you a response to your request for documents. And around day 35, I’ll follow up and give them a tickle, as we say in the legal profession. If I don’t get anything, I’ll give them one more tickle and then it’s a motion to compel. And even though it is somewhat informal with our administrative law judges, the administrative law judges will issue an order. You can have a dispute about a category of documents, things like that. Or sometimes, the district manager might say, “You know what, the file has medical documents in it. Can we get a protective order before I send them?”

Kevin Bland: Yeah.

Karen Tynan: Absolutely.

Kevin Bland: Yeah, no issue there.

Karen Tynan: For sure. So, we do have some mechanisms to make sure we’re getting these documents and getting this information. And so, it’s important for employers to understand, yes, we have these tools, we have a way to get these documents, we have a way to get sworn testimony. It’s much more narrow than other scenarios, but we can use it very effectively in our case.

Kevin Bland: No, I agree. And one last practice pointer and we’ll wrap this thing up. This is dealing with inspection. When they send the document request, I always send objections, along with the documents they’re entitled to, to reserve our rights. Because remember, that becomes a public document. And any other case that may exist in the future or concurrently, you are not protected if you just send all your documents in without reserving your rights with objections on the document request.

Karen Tynan: And we mark things confidential.

Kevin Bland: We do too, yeah. We are we.

Karen Tynan: Yes, yes. Kevin and Karen do this, too. We make sure we mark trade secrets, confidential documents. It’s important to follow that best practice. So, thanks for listening to our podcast about Cal/OSHA discovery today. We’ve got great blog articles on ogletree.com. We’ve got an awesome practice page for the Workplace Safety Practice Group. We also, Kevin and I, post a lot on LinkedIn, try to keep everybody updated. We also put on some great webinars. So, thanks for listening.

Kevin Bland: Stay safe out there.

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