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United States Court of Appeals for the Fifth Circuit
April 25, 1972
[*304] RONEY, C. J.:
The Secretary of Labor brought suit against defendant under § 17 of the Fair Labor Standards Act for violation of the minimum wage, overtime and record keeping provisions of the Act. The district court dismissed the action when the Secretary, relying on the so-called "informer's privilege," refused to produce certain statements which had been taken from employees of the defendant. Finding that under the circumstances of this case the Secretary was entitled to assert the informer's privilege, we reverse and remand.
Defendant has for many years been engaged in the business of inspecting and certifying chemical and petroleum cargoes which are carried on seagoing vessels. The Secretary contends that the inspectors who perform this work are subject to the minimum wage, overtime and record keeping provisions of the Act. Defendant's position is that these employees are "administrative" or "executive" personnel and exempt under § 13(a)(1) of the Act.
Prior to filing the complaint, the Secretary conducted an extensive investigation of defendant's [**2] activities. In the course of this investigation a number of employees were interviewed and gave written statements to Department of Labor investigators. Defendant first sought to obtain copies of these statements by means of interrogatories. The Secretary furnished considerable information, including the names of the employees alleged to be underpaid, the periods in question, the hours worked, the rates paid, the estimated amounts of underpayment, the investigators, the investigations made, and the violations found, but declined to produce the actual written statements, giving confidentiality and privilege as the reasons.
Defendant then filed a motion to produce under Rule 34 of the Federal Rules of Civil Procedure. This motion was granted. The court ordered the Secretary to produce statements taken by his investigators from defendant's former employees and from any present employees for whom a claim is being asserted. As to the present employees, however, the order did not require the Secretary to produce during discovery any information concerning informers whose identity had not already been disclosed to defendant and did not require him to produce any statements taken [**3] after plaintiff's legal counsel became involved. 1
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459 F.2d 303 *; 1972 U.S. App. LEXIS 9913 **; 68 Lab. Cas. (CCH) P32,671; 15 Fed. R. Serv. 2d (Callaghan) 1487
James D. Hodgson, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant v. Charles Martin Inspectors of Petroleum, Inc., Defendant-Appellee
Disposition: [**1] Reversed and remanded
former employee, informers, employees, present employee, retaliation, district court, interrogatories, investigators, witnesses, pretrial
Civil Procedure, Discovery, Privileged Communications, General Overview, Evidence, Government Privileges, Official Information Privilege, Informer Privilege, Privileges, Labor & Employment Law, Retaliation, Statutory Application, Fair Labor Standards Act, Wage & Hour Laws, Remedies, Conditions & Terms, Duration of Employment, Business & Corporate Compliance, Administrative Proceedings, Investigative Authority