A federal court in Wisconsin has determined that background documents
underlying an Occupational Safety and Health Administration (OSH A) report
for an employer are discoverable in a RCRA lawsuit filed against a company that
allegedly contributed to groundwater pollution on the employer’s property.
Tilot Oil, LLC v. BP Prods. N. Am., Inc., No. 09-210 (E.D. Wis. 8/3/11). So ruling,
the court declined to recognize a new evidentiary privilege based on an OSH A
regulation providing that such material is confidential.

The plaintiff employer sued defendant under RCR A and in tort, alleging that
defendant was responsible for contaminated groundwater that allegedly migrated
to plaintiff’s property. During discovery, plaintiff produced an industrial hygiene
report prepared by a University of Wisconsin employee under a consultation
agreement with the state OSH A. Defendant sought all documents related to
the report, but plaintiff and the state refused to produce them citing OSH A
confidentiality regulations. Defendant filed a motion to compel production.
Plaintiff argued that OSH A regulations at 29 C.F.R. 1908.6(3), state that, because
disclosure would adversely affect OSH A’s consultation program and breach
the confidentiality of commercial information not ordinarily disclosed by an
employer, the state cannot disclose the information except to the employer.

Rejecting plaintiff’s argument, the court held that, while the regulations
require the consultant to keep reports and underlying materials confidential,
they do not discuss whether the employer may withhold such materials
during discovery. The court added that since the report itself had already
been produced, any concern over deterring employer participation in OSH A’s
program had been eliminated and any commercial information or trade secrets
that might normally be of concern had probably already been disclosed.