FEDERATED METALS, INC.

OSHRC Docket Nos. 79-2255; 79-3647

Occupational Safety and Health Review Commission

May 29, 1981

[*1]

Before: CLEARY and COTTINE, Commissioners.

COUNSEL:

Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor

Robert D. Moran, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Seymour Fier is before the Commission for review pursuant to section 12(j), 29 U.S.C. 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). Judge Fier dismissed the Secretary of Labor's ("the Secretary") case for the Secretary's failure to present evidence at the hearing and vacated four citations issued to Respondent, Federated Metals, Inc. ("Federated Metals" or "the company"). In his petition for discretionary review, the Secretary contends that Judge Fier abused his discretion because the Secretary's inability to present evidence was caused by Federated Metals' improper refusal to allow discovery by the Secretary. n1 For the following reasons, we set aside the judge's decision and remand for further proceedings.

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n1 The Secretary's petition for discretionary review was granted by Commissioner Cleary, who directed review on the issue of "[w]hether the administrative law judge erred in granting Respondent's motion to vacate the citations and penalties."

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After an extensive inspection of the company's metal reclaiming facility in Newark, New Jersey, Federated Metals received and contested four citations n2 alleging noncompliance with several health standards. The citations alleged noncompliance with standards prohibiting employee exposure to excessive levels of lead, copper, and noise and requiring implementation of administrative or engineering controls to reduce these hazardous exposures. n3 The citations also alleged noncompliance with standards concerning respirators, monitoring for lead, and clothing, equipment, and housekeeping for protection against lead. n4

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n2 The inspection was conducted between October 6, 1978, and April 9, 1979. The four citations were issued in pairs on April 19, 1979, and June 20, 1979. Federated Metals contested the respective pairs on April 30, 1979, and July 3, 1979. The resulting two cases were docketed by the Commission as Nos. 79-2255 and 79-3647.

n3 The Secretary alleged noncompliance with 29 C.F.R. 1910.1000(b)(1) and (e) concerning exposure to lead in the automatic casting machine area and kettle #1 area (Docket No. 79-2255, serious citation) and as to the castomatic operator in the casting department, the old and new slugomatic operators in the kettle department, and seven employees in the furnaco room (Docket No. 79-3647, serious citation). The Secretary alleged noncompliance with 29 C.F.R. 1910.1000(a)(2) and (e) concerning exposure to copper in the continuous casting operation (Docket No. 79-2255, other than serious citation item 4). Noncompliance with 29 C.F.R. 1910.95(b)(1) concerning noise was alleged also respecting the continuous casting operation (Docket No. 79-2255, other than serious citation item 1).

n4 The Secretary alleged noncompliance with 29 C.F.R. 1910.134(b)(1) concerning procedures for selection and use of respirators throughout the plant (Docket No. 79-2255, other than serious citation item 2). The Secretary also alleged noncompliance with 29 C.F.R. 1910.1025(f)(3)(i) concerning the fitting of respirators for all employees working with lead throughout the plant (Docket No. 79-2255, other than serious citation item 5).

The Secretary alleged noncompliance with 29 C.F.R. 1910.1025(g)(2)(vi) in that Federated Metals did not issue warnings about lead hazards to persons laundering the protective clothing worn by employees working with lead throughout the plant (Docket No. 79-2255, other than serious citation item 10). The Secretary also alleged noncompliance throughout the plant with 29 C.F.R. 1910.1025(g)(2)(vii), requiring closed containers for lead-contaminated protective clothing (Docket No. 79-2255, other than serious citation item 11).

The Secretary alleged noncompliance with 29 C.F.R. 1910.1025(h)(2)(ii) in that Federated Metals manually swept rather than vacuumed accumulations of lead throughout the plant (Docket No. 79-2255, other than serious citation item 12). Noncompliance with 29 C.F.R. 1910.1025(d)(2), in that Federated Metals failed to determine "if any employee may be exposed to lead at or above the action level" defined in 29 C.F.R. 1910.1025(b), was alleged as to all employees exposed to lead throughout the plant (Docket No. 79-3647, other than serious citation item 1).

Other instances of noncompliance with 29 C.F.R. 1910.134 and 1910.1025 were alleged in the other than serious citations in the two cases. The Secretary amended the complaints to withdraw these items. See note 9 infra.

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The Secretary duly filed complaints n5 in these two cases arising out of the four contested citations. Proceedings concerning the sufficiency of the complaints took four months to resolve. Thereafter, Federated Metals filed its answers to the complaints and the cases were assigned to Judge Fier. n6

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n5 The Secretary asked for and was granted extensions of the time in which to file his complaints and they were filed within the allotted times. The complaint in Docket No. 79-2255 was filed on July 2, 1979. The complaint in Docket No. 79-3647 was filed on August 16, 1979.

n6 Docket No. 79-2255 was assigned to Judge Fier on October 29, 1979, and Docket No. 79-3647 was assigned on November 13, 1979. Federated Metals filed its answers in the respective cases on October 12, 1979, and December 14, 1979.

Shortly after the Secretary filed his complaints in both cases, Federated Metals filed motions to strike the complaints for lack of particularity. The Secretary filed responses to the motions in both cases and the motions were denied by Assistant Chief Administrative Law judge Irving Sommer. After the motions were denied, Federated Metals filed motions for more definite statements of the allegations in both cases and, again, the Secretary filed responses to the motions in both cases. With the exception that the Secretary was ordered to particularize the dates of the alleged violations in Docket No. 79-3647, these motions were denied by Chief Administrative Law Judge Paul A. Tenney. The Secretary filed the more particular allegations required by Chief Judge Tenney.

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II

After receiving the assignments, Judge Fier issued an order scheduling the cases for a hearing in less than two months. n7 At this time, Federated Metals had begun discovery n8 but the Secretary had not. Approximately three weeks after the judge's order scheduling the hearing, the Secretary filed interrogatories and extensive requests for production of documents. The Secretary also filed motions under Federal Rule 37(a), note 13 infra, for orders compelling Federated Metals to permit the Secretary's experts to conduct a discovery inspection of the company's facility. n9 Further, at this time, the Secretary filed motions in both cases to postpone the hearing to permit completion of discovery. Judge Fier postponed the hearing three weeks and ordered the requested discovery inspection. n10

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n7 The order, dated November 20, 1979, scheduled the hearing for January 15-18, 1980.

n8 All Commission proceedings are governed by the Federal Rules of Civil Procedure ("Federal Rules") unless the Commission has adopted a different rule. Section 12(g) of the Act, 29 U.S.C. 661(f); Commission Rule 2(b), 29 C.F.R. 2200.2(b); see Quality Stamping Prod. Co., 79 OSAHRC 28/F11, 7 BNA OSHC 1285, 1979 CCH OSHD P23,520 (No. 78-235, 1979).

Immediately after the complaints were filed, Federated Metals filed extensive requests for documents. The Secretary produced all relevant documents except portions which he claimed were work product. See Rule 26(b)(3) of the Federal Rules. Upon Federal Metals' motion in Docket No. 79-2255 pursuant to Rule 37(a) of the Federal Rules, see note 13 infra, to compel production of the withheld portions, Chief Administrative Law Judge Paul A. Tenney examined the withheld portions in camera and upheld the Secretary's claim of privilege. This claim was also later upheld in Docket No. 79-3647.

Federated Metals filed interrogatories on October 22, 1979, in Docket No. 77-2255 and on November 20, 1979, in Docket No. 79-3647. The Secretary filed answers in Docket No. 79-2255 but objected in Docket No. 79-3647 that Federated Metals had already received the requested information through the documents which the company had requested and received. The protective order under Rule 26(c) of the Federal Rules which the Secretary accordingly sought was granted by Judge Fier on December 19, 1979.

Federated Metals also filed a request for admissions in both cases on December 10, 1979, which the Secretary answered.

n9 The Secretary also filed motions to amend the complaints, see note 3 supra. The motions were granted. The interrogatories and document production requests were filed on December 12, 1979, in both cases. The motions to compel the discovery inspection were filed in both cases on December 17, 1979.

n10 His order, dated December 17, 1979, rescheduled the hearing for February 4-8, 1980. The order was stated to be "peremptory against both sides."

The discovery inspection was granted on December 17, 1979, in Docket No. 79-2255. Federated Metals then requested Judge Fier to certify an interlocutory appeal of his order, to which the Secretary filed an opposition. Judge Fier denied the request on January 9, 1980. On this date, he also granted the discovery inspection in Docket No. 79-3647.

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About two weeks before the rescheduled hearing, the Secretary asked for a second postponement in both cases. The Secretary indicated that his expert could not make the discovery inspection any earlier than the week before the scheduled hearing and therefore the Secretary could not be prepared for trial. Judge Fier granted the request, postponing the hearing six weeks. n11

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n11 His order, dated January 25, 1980, rescheduled the hearing for March 17-21, 1980. The order was again stated to be "peremptory on both sides."

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At the same time that he requested the postponement, the Secretary filed motions for orders compelling Federated Metals to answer the Secretary's interrogatories and to produce the documents requested by the Secretary. Federated Metals had not filed any answers or objections to the interrogatories and had not filed any response to the document production requests during the five-to-six week period that had elapsed since [*6] the Secretary served these discovery requests in both casos. n12 The Secretary's motions to compel the responses were filed under Federal Rule 37(a), which provides that "[i]f . . . a fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested, the discovering party may move for an order compelling an answer . . . or an order compelling inspection in accordance with the request." n13 Judge Fier granted the Secretary's motions.

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n12 The Federal Rules provide that answers or objections to interrogatories and responses to document production requests "shall" be filed within 30 days of service of interrogatories or document production requests. Rules 33(a) and 34(b).

n13 Rule 37(a) is a part of Rule 37 of the Federal Rules which pertains as a whole to the sanctions for failure to make discovery. Rule 37(a) provides, in pertinent part, the following:

(a) Motion for Order Compelling Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:

* * *

(2) Motion. If a deponent fails to answer a question propounded or submitted under Rules 30 or 31, or a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. . . .

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About one week after the judge granted the motions, and more than seven weeks after the Secretary's interrogatories and document production requests were filed in these cases, Federated Metals for the first time filed numerous objections. Federated Metals declined to produce most of the documents requested. for example, the company claimed that the Secretary's request for "[a]ll documents pertaining to the costs of installing engineering controls for the purpose of reducing noise levels, exposure to noise, or the time of employee exposure to noise on the premises at the cited locations" requested irrelevant information: "[t]he details of Respondent's income, expenditures and other financial data are not material to whether it failed to comply with the Act. . . ." n41

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n14 Federated Metals additionally claimed that the Secretary's requests were overly broad and unduly burdensome, and asserted that some of the requested documents were not discoverable because they were work product or contained trade secrets.

The discovery of trial preparation materials is governed by Rule 26(b)(3) of the Federal Rules. The Act provides that appropriate orders shall be fashioned to protect the confidentiality of trade secrets. Sedtion 15 of the Act, 29 U.S.C. 664; see Rule 11 of the Commission Rules of Procedure, 29 C.F.R. 2200.11.

[*8]

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Federated Metal's objections to a substantial number of the interrogatories were similar. For example, the company objected to an interrogatory about the nature, activity, and dollar volume of the company's business on the grounds that the details of income, expenditures, and other financial data were immaterial. To the Secretary's request that Federated Metals "[d]escribe, in detail, the steps respondent has taken to determine whether feasible (technologically and economically) administrative or engineering controls and available to reduce lead or copper levels at the cited locations . . .," Federated Metals responded that "[w]hat has happened since the inspection is not relevant to whether Respondent was in violation between October 6, 1978 and April 9, 1979." Federated Metals gave this answer to six similar questions.

At the same time that the Secretary received Federated Metals' objections to the interrogatories and document production requests, the Secretary's expert conducted his discovery inspection of Federated Metals' facility, found that the furnace room was not in operation, and was therefore [*9] unable to complete his discovery inspection. n15 The date of the discovery inspection was chosen by agreement of the parties but the Secretary did not know that any operations would be closed down on that date. Because the Secretary learned subsequent to the discovery inspection that the furnace room would not be in operation until two weeks before the scheduled hearing and his expert would be unavailable for a second discovery inspection until after the hearing had begun, n16 the Secretary filed another motion to postpone the hearing. The motion was filed two weeks before the hearing was scheduled to begin. n17

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n15 See notes 3 and 4 supra describing the allegations relating to or including the furnace room.

n16 According to the Secretary, the expert made his discovery inspection on February 6, 1980. The furn be room would not be in operation until March 4, 1980. The Secretary's expert could not return for a second discovery inspection until March 20, 1980. As indicated, note 11 supra, the hearing was scheduled to begin on March 17, 1980.

n17 The Secretary's motion was filed on March 3, 1980.

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Also, about three weeks before the scheduled hearing, the Secretary filed a motion in both cases under Rule 37(b) n18 of the Federal Rules for a default judgment against Federated Metals for its failure to comply with Judge Fier's orders compelling the company to answer the Secretary's interrogatories and produce the documents requested by the Secretary. In the alternative, the Secretary asked that Judge Fier stay the proceedings until Federated Metals complied with the judge's orders. The Secretary contended that Federated Metals' answers to the interrogatories were "so evasive and inadequate as to amount to a failure to comply with Judge Fier's Orders," and that Federated Metals made no substantive response to 31 out of 37 questions. For example, the Secretary noted that, to avoid making a substantive response to several questions, Federated Metals read into the questions a time period that was not mentioned in the questions in any way. n19

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n18 This rule sets forth sanctions for a party's failure to comply with a discovery order. In pertinent part, it provides the following:

(2) Sanctions by Court in Which Action Is Pending. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;

(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;

(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination. . . .

n19 The Secretary also contended that Federated Metals' objections to the document production requests -- overbreadth, irrelevancy, disclosure of trade secrets, and work product -- were all without foundation. For example, the Secretary argued:

Prior studies and measurements (and the results of same) concerning lead, copper and noise levels . . . are or may be evidence of Respondent's knowledge of the violations alleged. In addition, although Respondent implicitly concedes that any studies conducted by or for Respondent during the period of the OSHA inspection are relevant, Respondent does not respond even to this portion of the Requests.

The Secretary also argued that if Federated Metals was concerned about disclosure of trade secrets, Federated Metals should have applied for a protective order under Rule 26(c) of the Federal Rules and Rule 11 of the Commission Rules, see note 14 supra. However, Federated Metals did not do so.

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Federated Metals filed a reply to the Secretary's motion for discovery sanctions. The company claimed that its responses to the Secretary's discovery were delayed because "the data was widely spread and not all relevant. . . ." The company also claimed that the responses finally forthcoming were made in "a good faith effort to keep these cases moving as required by Judge Fier. . . ." Referring to the Secretary's document production requests for all studies, all writings, and all documents pertaining to the costs of engineering controls, Federated Metals stated that "[t]hese are illustrations of respondent's problem when it considers such requests in the light of the organization of respondent's parent in 1899 and the absorption of respondent in the early 1930's." Referring to the Secretary's interrogatories, Federated Metals argued that the Secretary's discovery is limited to the period of the initial inspection and that Federated Metals properly read this time limitation into various questions.

III

Judge Fier denied the Secretary's hearing postponement request shortly after receiving it. A few days [*12] later, the judge denied the Secretary's motion for discovery sanctions. He gave no reasons for either action. n20 The Secretary thereafter renewed his postponement request. The Secretary emphasized that he would be unable to present his case concerning lead and noise because of Federated Metals' failure to schedule the discovery inspection at a time when the furnace room would be in operation; the company's failure to allow the Secretary's other, proper discovery; and Judge Fier's failure to sanction Federated Metals' noncompliance with the orders compelling discovery. Judge Fier did not rule on this motion and he held the hearing as scheduled. When the Secretary declined to present any part of his case, n21 Federated Metals moved for a default judgment in its favor. Judge Fier granted this motion.

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n20 In denying the motion for discovery sanctions, Judge Fier only noted that Federated Metals opposed the Secretary's motion and stated, "[a]fter consideration of the moving and reply papers, the motion for judgment by default is denied."

n21 The Secretary did not explicitly claim at the hearing that the preparation of his whole case had been prejudiced by the lack of discovery. However, the Secretary stated that the lack of opportunity to inspect the furnace room operation severely hampered preparation with respect to lead and that the lack of financial data compromised preparation with respect to noise. The Secretary stated that other portions of the case were still under study to determine the extent of the difficulties of proof, and the Secretary suggested that he might be required to withdraw the allegations with respect to copper. See notes 3 and 4 supra describing the allegations relating to the various areas of the plant.

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Judge Fier's decision shows that his principal concern was with the continuing postponement of the hearing. He noted that when he had rescheduled the hearings, he notified the parties that there would be no further postponements. See notes 10 and 11 supra. He also noted that both parties engaged in extensive discovery and pretrial proceedings "bordering on an abuse." However, he faulted the Secretary, characterizing his action as "cavalier," because the Secretary had the burden of proof but was unready to proceed by the last scheduled hearing date. Judge Fier considered that his "admonitions" were not heeded and that allowing the Secretary to delay any further would "deprive the Respondent of its right to a speedy trial and would result in an abuse of the judicial function." Accordingly, Judge Fier vacated the citations. It is this order that is before the Commission for review.

IV

In their arguments, the parties correctly acknowledge that this dismissal under Rule 41(b) n22 of the Federal Rules should be upheld unless the judge abused his discretion. n23 Federated Metals argues that Judge [*14] Fier's exercise of discretion should be upheld because the record as a whole "demonstrates numerous delays and other dilatory action initiated by the Secretary." n24 The Secretary argues that Judge Fier's ruling was an abuse of discretion because the inability of the Secretary to present his case at the hearing was the fault of Federated Metals. n25

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n22 Rule 41(b) in pertinent part provides the following:

(b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. . . . Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

n23 See Duquesne Light Co., 80 OSAHRC 32/B7, 8 BNA OSHC 1218, 1980 CCH OSHD P24,384 (No. 78-5034, 1980).

n24 For the proposition that the whole record must be considered, Federated Metals relies on Link v. Wabash R.R. Co., 370 U.S. 626 (1962), Dyotherm Corp. v. Turbo Mach. Co., 392 F.2d 146 (3rd Cir. 1968), and Davis v. Operation Amigo, Inc., 378 F.2d 101 (10th Cir. 1967).

Among other things, Federated Metals notes that the Secretary sought all of the extensions of time and hearing postponements in these cases and contends that the Secretary's inability to present his case at the finally scheduled hearing was caused by his failure to initiate discovery early in the proceedings and pursue discovery diligently with the object of completing it before the initially scheduled hearing. Thus, Federated Metals emphasizes that the Secretary began discovery only one month before the initially scheduled hearing, allowed his expert to delay the discovery inspection until immediately before the second scheduled hearing, and delayed in informing Judge Fier of the expert's inability to complete the discovery inspection until immediately before the finally scheduled hearing. Federated Metals also emphasizes that, when the Secretary asked for a postponement of the last scheduled hearing, he indicated only that some portions of his case could not be presented. However, at the hearing, the Secretary did not present any of his case.

The company also argues that, in contrast to the Secretary, the company proceeded diligently to prepare for the scheduled hearings and that any delay in which Federated Metals participated was ultimately the fault of the Secretary. However, Federated Metals has not argued that the Secretary's alleged dilatoriness in any way prejudiced the company's defense.

n25 The Secretary refers to Foxboro Co. v. Fischer & Porter Co., 29 F.R.D. 522 (E.D. Pa. 1961), wherein the court stated that "the motion [to dismiss under Federal Rule 41(b)] comes with poor grace from the party who largely instigated the delay. Having instigated the delay, defendant should not be permitted to profit from it. . . ." 29 F.R.D. at 523. Similarly, the court in U.S. v. Inter-American Shipping Corp., 455 F.2d 938 (5th Cir. 1972), stated that "[i]f the dismissal is viewed as resulting from the defendant's failure to obey the order to answer . . ., it penalizes the party not at fault and is therefore improper." 455 F.2d at 940. See, e.g., Fidelity Philadelphia Treat Co. v. Pioche Mines Consol., Inc., 587 F.2d 27 (9th Cir. 1978); Scarver v. Allen, 457 F.2d 308 (7th Cir., 1972); Davis v. Romney, 53 F.R.D. 247 (E.D. Pa. 1971).

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The Secretary argues that essential discovery n26 was unjustifiably withheld by Federated Metals and that Judge Fier improperly allowed this evasion. The Secretary contends that Federated Metals had waived the objections which it presented for the first time after Judge Fier compelled the company, under Federal Rule 37(a), note 13 supra, to answer the Secretary's interrogatories and respond to the Secretary's document production requests. n27 Accordingly, the Secretary contends that Judge Fier was required to sanction Federated Metals under Federal Rule 37(b), note 18 supra, and therefore the judge should at least have stayed the proceedings until the company answered the interrogatories and produced the requested documents. According to the Secretary, by instead denying the Secretary's motion for sanctions, Judge Fier wrongly upheld tardily presented and meritless objections. This clearly improper ruling was an abuse of discretion and, the Secretary argues since it jeopardized his case, the ultimate ruling dismissing the Secretary was also clearly an abuse of discretion.

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n26 The Secretary argues that he could not carry his substantial burden of proof in these cases involving lead, copper, and noise without discovery and points out that the Commission has recognized the need for discovery in such cases. See Ralston Purina Co., 79 OSAHRC 81/E6, 7 BNA OSHC 1730, 1979 CCH OSHD P23,065 (No. 78-145, 1979); KLI, Inc., 77 OSAHRC 202/A2, 6 BNA OSHC 1097, 1977-78 CCH OSHD P22,350 (No. 13490, 1978); Reynolds Metals Co., 78 OSAHRC 51/D4, 3 BNA OSHC 1749, 1975-76 CCH OSHD P20,214 (No. 4385, 1975).

n27 The Secretary argues that Federated Metals waived its objections by failing to present them within 30 days of service of the interrogatories and document production requests as required by Federal Rules 33(a) and 34(b), see note 12 supra. In support, the Secretary cites Perry v. Golub, 74 F.R.D. 360 (N.D. Ala. 1976), and Davis v. Romney, note 25 supra. See also 8 WRIGHT AND MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2173, 2182, 2216, and 2291.

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The Secretary also [*17] argues that, when the parties were scheduling the Secretary's expert's discovery inspection, Federated Metals was required to inform the Secretary that the furnace room would not be in operation. Federated Metals' failure to do so resulted in the inability of the Secretary to complete the inspection before the last scheduled hearing and therefore, Judge Fier should have postponed the hearing once more. The Secretary contends that, since it was imperative that the Secretary prepare his expert to give evidence supporting his case, Judge Fier's failure to postpone the hearing was an abuse of discretion, as was the ensuing dismissal ruling.

V

The Secretary's burden of proof in these cases involving numerous instances of alleged noncompliance with standards for noise, lead, copper, and respiratory protection is a heavy one. n28 Obviously, extensive discovery is necessary and critical, particularly to prepare expert testimony, for "[w]ithout expert testimony, it is doubtful that the Secretary can show the feasibility of engineering controls." Ralston Purina Co., 79 OSAHRC 81/E6, 7 BNA OSHC 1730, 1731, 1979 CCH OSHD P23,897 at p. 28,977 (No. 78-145, 1979). See cases cited in [*18] note 26 supra. Accordingly both parties engaged in extensive and complicated discovery.

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n28 See notes 3 and 4 supra. See generally Samson Paper Bag Co., 80 OSAHRC 60/A2, 8 BNA OSHC 1515, 1980 CCH OSHD P24,554 (No. 76-222, 1980); Continental Can Co., 76 OSAHRC 109/A2, 4 BNA OSHC 1541, 1976-77 CCH OSHD P21,009 (No. 3973, 1976); GAF Corp., 81 OSAHRC    , 9 BNA OSHC 1451, 1981 CCH OSHD P25,281 (No. 77-1811, 1981); Deering Milliken, Inc., 78 OSAHRC 101/A2, 6 BNA OSHC 2143, 1978 CCH OSHD P23,191 (No. 12597, 1978), aff'd, 630 F.2d 1094 (5th Cir. 1980).

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A substantial amount of time -- three to four months before Federated Metals filed answers and the cases were assigned to Judge Fier -- was taken up with Federated Metals' repeated particularity challenges, see note 6 supra, to which the Secretary filed various responses. During this time, also, the Secretary was required to respond to Federated Metals' extensive document production requests and the ensuing motions, see note [*19] 8 supra. Considering this paper blizzard, it is understandable that the Secretary had not yet begun his discovery. Nevertheless, about one week after receiving the assignment of the second of these two cases, Judge Fier scheduled a hearing in less than two months, see notes 6 and 7 supra. Within a reasonable time thereafter, the Secretary informed Judge Fier that some postponement would be needed to complete discovery, and the ensuing three-month protraction of the proceedings was clearly only for this purpose, not for administrative convenience or to compensate for earlier, unwarranted delay.

Only where there is a "clear record of delay or contumacious conduct" should an action be dismissed for failure to prosecute. Reizakis v. Loy, 490 F.2d 1132, 1135 (4th Cir. 1974), citing and quoting Durham v. Florida East Coast Railway Co., 385 F.2d 366, 368 (5th Cir. 1967). n29 Dismissal is justified where there is a "drawn-out history of the litigation" which demonstrates that the prosecuting party has been "deliberately proceeding in a dilatory fashion." Link v. Wabash Railroad Co., 370 U.S. 626, 633 (1962). However, in this case, where less than one year elapsed [*20] from the issuance of the citations to the last scheduled hearing, see notes 2 and 11 supra, and both parties have been active, this total lapse of time is certainly "not so long drawn out as to indicate a desire not to prosecute." Flaksa v. Little River Marine Construction Co., 389 F.2d 885, 889 (5th Cir. 1968), cert. denied, 392 U.S. 928 (1968). Moreover, the moderate protraction for discovery only was clearly justified. See McCombs v. Pittsburgh-Des Moines Steel Co., 426 F.2d 264 (10th Cir. 1970); Davis v. Operation Amigo, Inc., 378 F.2d 101 (10th Cir. 1967) Ralston Purina Co., supra. See generally SEC v. Everest Management Corp., 466 F.Supp. 167 (S.D.N.Y. 1979); 9 WRIGHT AND MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2370.

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n29 See also Boazman v. Economics Laboratory, Inc., 537 F.2d 210 (5th Cir. 1976); Coon v. Charles W. Bliven & Co., 534 F.2d 44 (5th Cir. 1976); Meeker v. Rizley, 324 F.2d 269 (10th Cir. 1963).

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Our discussion up to [*21] this point indicates that, if the Secretary has not been dilatory and requires more time to complete discovery, dismissal for failure to proceed at the hearing is error. However, more is involved in these cases. As the Secretary argues, his failure to proceed resulted from evasion of proper discovery by Federated Metals.

In these cases, the Secretary served interrogatories and requests for documents which concerned, among other things, the feasibility of engineering controls for noise. Federated Metals never answered a substantial number of these important interrogatories and never produced many documents. Instead, more than seven weeks after the discovery requests were served and after Judge Fier issued orders compelling answers and documents, the company interposed objections for the first time. This course of conduct is prohibited by the Federal Rules.

Federal Rule 37(d) n30 states that if a party fails to "serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or . . . serve a written response to a request for inspection submitted under Rule 34, after proper service of the request," the court may impose the sanctions [*22] set forth in Federal Rule 37(b), such as "rendering a judgment by default against the disobedient party" or "staying further proceedings until the order [for discovery] is obeyed," see Federal Rule 37(b)(2)(C), note 18 supra. Rule 37(d) further states that "[t]he failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 26(c)." (Emphasis added). The rule thus indicates that, by failing to present its objections to interrogatories or requests for documents within 30 days after their service, see note 12 supra, a party waives its objections and cannot thereafter expect the objections to be considered. As the court stated in Davis v. Romney, 53 F.R.D. 247 (E.D.Pa. 1971):

Regardless of how outrageous or how embarrassing the questions may be, the defendants have long since lost their opportunity to object to the questions. If they feel that the questions are unfair they have no one but themselves to blame for being required to answer them now. If discovery rules are to have "any effect or meaning, [*23] the failure to serve such objections within the time prescribed . . . should be considered a waiver of such objections." Bohlin v. Brass Rail, Inc., 20 F.R.D. 224 (S.D.N.Y. 1957).

53 F.R.D. at 248. See also 8 WRIGHT AND MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2173, 2182, 2216, and 2291. In these cases, Federated Metals waived the objections it presented for the first time in response to Judge Fier's order compelling the discovery. Judge Fier therefore erred in denying the Secretary's subsequent motion for sanctions. Judge Fier should at least have stayed the proceedings until Federated Metals obeyed the judge's orders compelling discovery. Judge Fier's failure to sanction Federated Metals left the Secretary without sufficient evidence to establish his allegations about noise and therefore, as the Secretary argued to Judge Fier immediately before the hearing, the Secretary could not present his case in this respect.

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n30 Rule 37(d) provides the following:

(d) Failure of Party To Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1) to appear before the officer who is to take his deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applies for a protective order as provided by Rule 26(c).

[*24]

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Moreover, the Secretary was unable to present evidence supporting a substantial portion of his case on lead and respiratory protection because his expert could not complete the discovery inspection of Federated Metals' facility. This was largely the company's fault, for the company did not tell the Secretary that the furnace room would not be in operation on the day the expert made his discovery inspection. Thereafter, the furnace room was not in operation until two weeks before the last scheduled hearing but, during that period, the Secretary's expert was unavailable.

Because Judge Fier had issued orders compelling Federated Metals to allow this discovery to which Federated Metals had not objected, n31 the company was obliged to permit inspection of all operations concerned in these cases. Moreover, the company, not the Secretary, was better able to know of any problems with these operations that could prevent completion of the discovery inspection. Accordingly we conclude that Federated Metals should have informed the Secretary about the furnace room prior to the inspection and that, by failing [*25] to do so, Federated Metals contributed substantially to the failure to proceed which prompted Judge Fier to dismiss the Secretary's case.

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n31 When Judge Fier issued his order in Docket No. 79-2255, it appears that Federated Metals may not have had a full opportunity to object to the discovery: the Secretary did not serve a request under Federal Rule 34 and allow 30 days for a response, see note 12 supra, and Judge Fier granted the Secretary's motion to compel the discovery under Federal Rule 37(a) without allowing ten days for a response as required by Commission Rule 37, 29 C.F.R. 2200.37. But, although deprived of these opportunities to raise objections to the inspection prior to the judge's order compelling it, Federated Metals did not thereafter make any objections to the inspection. The company only objected to the lack of a Rule 34 request filed in writing and the lack of time under Commission Rule 37 for a response. Moreover, Federated Metals only asked the judge to certify an interlocutory appeal. It did not ask him to reconsider ordering the inspection. Since Federated Metals had never waived its objections to the inspection before the judge's order, the company could have raised them. Its failure to do so was a waiver.

In Docket No. 79-3647, there was adequate time for a response to the Secretary's motion before Judge Fier granted it. See notes 9 and 10 supra. Again, Federated Metals raised no objection to the inspection taking place. Accordingly, it is clear that the company waived this type of objection.

[*26]

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A dismissal under Federal Rule 41(b) is a sanction against the prosecuting party. Therefore, it is not properly employed where, as here, the prosecuting party's failure to proceed is largely the defending party's fault. Fidelity Philadelphia Trust Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27 (9th Cir. 1978); United States v. Inter-American Shipping Corp., 455 F.2d 938 (5th Cir. 1972); Davis v. Romney, supra. As was stated in Davis v. Romney, "[w]e shall not permit [the defendants] to ignore the interrogatories and then two months after their answers became due absolve themselves by filing a Motion to Dismiss." 53 F.R.D. at 249. Furthermore,

Although the discretion to dismiss the action for want of prosecution is exercised largely as a part of the general policy of the courts to expedite litigation, it also inures to the benefit of the defendant who thereby defeats a claim asserted against him by the plaintiff. In the present case, the parties are equally in default and it would be unfair if defendant should reap the benefit of plaintiff's neglect when his own has been [*27] just as great.

Tinnerman Products, Inc. v. George K. Garrett Co., 22 F.R.D. 56, 57 (E.D.Pa. 1958). Accordingly, we hold that Judge Fier abused his discretion in dismissing the Secretary's case and we set aside his decision.

We accordingly remand these cases for further proceedings consistent with this decision. Specifically, Judge Fier's order denying the Secretary's motion under Federal Rule 37(b) for a dismissal or stay of proceedings is set aside. The hearing is to be stayed until Federated Metals complies with Judge Fier's orders compelling answers to the Secretary's interrogatories and the production of the documents requested by the Secretary. Furthermore, any additional postponement of the hearing that is reasonably necessary should be granted to permit the Secretary to complete his discovery inspection. SO ORDERED.