“SECRETARY OF LABOR,Complainant,v.GENERAL MOTORS CORPORATION,DELCO PRODUCTS DIVISION,Respondent.OSHRC Docket No. 78-5476_DECISION_Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:In this case, Administrative Law Judge David J. Knight vacated acitation item alleging that General Motors Corporation, Delco ProductsDivision violated the noise standard at 29 C.F.R. ? 1910.95(b)(1).[[1]] The judge decided that the Secretary of Labor failed to prove thefeasibility of engineering controls which the Secretary believed GeneralMotors should have implemented in its Delco Products facility inRochester, New York. The Secretary filed a petition for review in whichhe contended that his failure to prove feasibility was caused by hisinability to obtain a discovery inspection of General Motors’ facility. The Secretary argued that Judge Knight had abused his discretion when,several weeks prior to the hearing, the judge had denied the Secretary’smotion to compel the discovery inspection. The Secretary thereforeargued in his petition for review that the judge’s decision should bereversed and the case remanded.The Secretary’s petition for review was granted by Commissioner Cottinepursuant to 29 U.S.C. ? 661(i). For the following reasons, we concludethat the judge abused his discretion in denying the Secretary’sdiscovery and we remand the case for further proceedings consistent withthis opinion.IThe Secretary issued the citation in this case in late October 1978 andthe parties filed their pleadings in January 1979. The case was assignedto Judge Knight, who scheduled it for hearing on May 9, 1979.On April 11, 1979, the Secretary submitted a written request to GeneralMotors for a \”discovery inspection by an expert retained by complainantto examine cited areas to confirm the existence of feasibleadministrative or engineering controls.\” The request stated that theinspection could be at a \”mutually convenient time.\” On April 25, 1979,the Secretary asked the judge to postpone the scheduled hearing becauseof a trial scheduling conflict and the need for additional time fordiscovery. Judge Knight granted the request, rescheduling the hearingfor July 25, 1979. At this time the judge stated that no furthercontinuances would be allowed except \”for extraordinary reasons.\”General Motors did not file a written response to the Secretary’swritten request for the discovery inspection. On May 15, 1979, theSecretary filed a second request for entry at a \”mutually convenienttime.\” In this request the Secretary stated that the name of the expertwould be provided \”as soon as that person has been identified.\” On June22, 1979, the Secretary wrote to General Motors requesting a response tohis request for entry. The Secretary informed General Motors that hewould file an appropriate motion if a response was not received by June29, 1979. Because the Secretary did not receive a response to any ofhis requests, the Secretary filed a motion asking the judge to compelGeneral Motors to allow the requested discovery \”on the soonest mutuallyconvenient date.\” This motion was filed on July 2, 1979.On July 10, 1979, Judge Knight issued his order denying the motion tocompel. He reasoned that the Secretary had known of the need fordiscovery since April 1979, but waited until near the scheduled hearingdate to file the motion. The judge noted that, when he had rescheduledthe hearing, he had expressly prohibited further postponements.At the hearing on July 25, 1979, the Secretary renewed his motion tocompel but, when the judge reiterated his denial, the Secretarypresented the evidence which he had been able to prepare. At the closeof his evidence, the Secretary asked for a one-day postponement toobtain more evidence. Judge Knight denied this request as coming toolate. General Motors then moved to dismiss the Secretary’s case forinsufficient proof. When Judge Knight granted the motion, the hearingrecord was closed.In his petition presenting the contention that the judge abused hisdiscretion in denying the discovery inspection, the Secretary arguesthat he suffered substantial prejudice through denial of the discovery,that General Motors would not have been prejudiced if the discovery hadbeen allowed, and that there had been no undue delay in theproceedings. General Motors filed an opposition to the Secretary’spetition in which General Motors argues that the judge properlyexercised his authority to deny the discovery.IIIn Del Monte Corp., 81 OSAHRC 78\/A2, 9 BNA OSHC 2136, 1981 CCH OSHD ?25,586 (No. 11865, 1981), the Commission stated:The decision whether to allow discovery is within the judge’s sounddiscretion. This sound discretion should be guided by the objective ofproviding a fair and prompt hearing to the parties. Moreover, the judgeshould consider the need of the moving party for the information sought,any undue burden to the party from whom discovery is sought, and, onbalance, any undue delay in the proceedings that may occur. Given thejudge’s broad discretion, a judge’s disposition of discovery matters isreversible only if the judge’s actions constitute an abuse of discretionresulting in substantial prejudice.Discovery inspections, however, are ordinarily permissible where aviolation of the noise standard is alleged. . . . In allowing theSecretary discovery in noise cases, the Commission has recognized thatthe Secretary is authorized to issue a citation on less evidence than hemay need to prove the existence of the violation. Further, theCommission is cognizant that discovery by the Secretary in noise casesis critical, particularly to prepare expert testimony, for \”[w]ithoutexpert testimony, it is doubtful that the Secretary can show thefeasibility of engineering controls.\”9 BNA OSHC at 2141, 1981 CCH OSHD at p. 31,915 (citation sentencesomitted throughout the quote). Moreover, the Commission has indicatedthat some protraction of the proceedings is justified when it occurs toobtain necessary discovery and that, if the Secretary has not beenexcessively dilatory or otherwise contumacious and needs additional timefor such discovery, a denial of discovery can be an abuse of discretion. See Del Monte Corp., supra; Federated Metals, Inc., 81 OSAHRC 58\/A2, 9BNA OSHC 1906, 1981 CCH OSHD ? 25,425 (No. 79-2255, 1981).In this case, the Secretary sought the discovery inspection to prepareexpert testimony about the feasibility of engineering controls fornoise. When the discovery was denied, the Secretary was unable toestablish his case through expert testimony. In ruling on GeneralMotors’ motion to dismiss for insufficient proof, the judge concludedthat the Secretary had failed to prove the alleged noise violation. However, the Commission has noted that, without expert testimony, it isdoubtful that the Secretary would be able to satisfy his prima facieburden of establishing feasibility of abatement in noise cases. See DelMonte Corp., supra; Ralston-Purina Co., 79 OSAHRC 81\/E6, 7 BNA OSHC1730, 1979 CCH OSHD ? 23,897 (No. 78-145, 1979). Moreover, had theSecretary met his prima facie burden, it is questionable whether,without expert testimony, the Secretary’s case would have been capableof withstanding rebuttal from General Motors. Thus, the Secretary’sneed for the discovery was critical even though he was able to presentsome evidence. Accordingly, the discovery should have been permittedunless General Motors would have suffered actual prejudice from allowingit or unless the Secretary’s conduct throughout the proceedings wasmarked by excessive dilatoriness rising to the level of contumacy. SeeSamsonite Corp., 82 OSAHRC 26\/A2, 10 BNA OSHC 1583, 1982 CCH OSHD ?26,054 (No. 79-5649, 1982); Del Monte Corp., supra; Federated Metals,Inc., supra.General Motors does not claim that it has already suffered any prejudicefrom the Secretary’s conduct in seeking the discovery. Also, althoughGeneral Motors argued in the proceedings prior to this review thatpermitting the discovery near the scheduled hearing would have createdscheduling problems for General Motors’ attorneys and experts, and wouldhave necessitated extra case preparation, such claims do not constitutelegal prejudice. The asserted inconveniences can be cured by a moderatecontinuance of the hearing date. See Samsonite Corp., supra.The remaining matter, then, is whether the Secretary’s conduct in theproceedings was unduly dilatory to the point of contumacy. In denyingthe Secretary’s discovery, the judge decided that the Secretary hadfiled his motion to compel the discovery too late, near the datescheduled for the hearing. However, the date for the hearing was onlynine months after the citation issued. Also, only three months hadelapsed between the Secretary’s first request for the discovery and theSecretary’s motion to compel, and only a total of six months had elapsedfrom the pleadings to the motion. Both parties had been activethroughout the case. The parties began discovery within a reasonabletime after the pleadings were filed, and discovery continued until thehearing. Thus, the proceedings in this case had not been protracted atthe time when the judge denied the motion to compel discovery anddeclined to post-pone the hearing a second time. There is an interestin prompt resolution of contested cases. However, health cases can becomplex and discovery relatively time-consuming without beingunreasonable. Thus, the need for discovery can justify an additionalhearing postponement even when the judge has previously stated to theparties that any further postponements will be disallowed. See DelMonte Corp., supra; Federated Metals, Inc., supra.With the support of an affidavit filed by its attorney, General Motorsclaims that, subsequent to the Secretary’s first request for thediscovery inspection, General Motors agreed orally to the discovery ifthe Secretary named his expert and the date he wanted the inspection. However, according to General Motors, the Secretary never responded withthis information. Thus, General Motors argues that the Secretary knewhe could have had the discovery well before the hearing but he did notmake any reasonable attempt to carry it out. This claim is directlycontradicted by an affidavit submitted by the Secretary’s attorneystating that there was no response to the Secretary’s requests for thediscovery inspection.On the basis of the parties’ conflicting representations regarding oralcommunications, the Commission is unable to determine whether theSecretary’s conduct was unduly dilatory or otherwise contumacious and wemust rely on the written record.[[2]] The Federal Rules of CivilProcedure[[3]] provide for a written response to a discovery request,Fed. R. Civ. P. 34(b), and sanctions for a failure to file a writtenresponse, Fed. R. Civ. P. 37(d). Federated Metals, Inc., supra. IfGeneral Motors objected to the Secretary’s requests and sought greaterspecificity, General Motors should have filed the required writtenresponse stating its objections under Fed. R. Civ. P. 34(b). In theabsence of a written response, the Secretary does not have to disproveGeneral Motors’ claimed oral response. The Secretary filed threediscovery requests, General Motors did not file responses, and theSecretary therefore was required to seek an order compelling thediscovery. The record demonstrates that the Secretary’s failure tocomplete discovery before the scheduled hearing was caused to asubstantial extent by General Motors’ inaction.[[4]] In view of thisinaction causing the Secretary’s discovery to be incomplete as well asour conclusion that the parties’ conduct during the proceedings had beenotherwise reasonably diligent and the proceedings had not been undulyprotracted, the Secretary’s conductcannot be considered excessively dilatory to the point of contumacy. Accordingly, the judge’s denial of the Secretary’s motion for an orderto compel discovery was an abuse of discretion.The judge’s order denying the discovery and his decision vacating theSecretary’s citation are therefore reversed. This case is remanded tothe judge for further proceedings consistent with this opinion, whichmay include postponement of the hearing until the Secretary is affordedthe opportunity to complete discovery.[[5]] SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: APR 27 1983————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request onefrom our Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] 29 C.F.R. ? 1910.95(b)(1) provides, in pertinent part, that\”[w]hen employees are subjected to sound exceeding those listed in TableG-16, feasible administrative or engineering controls shall be utilized.. . . \”[[2]] We note additionally that General Motors does not claim that itresponded in any way to the requests by the Secretary on May 15 and June22, 1979.[[3]] Commission proceedings are governed by the Federal Rules unlessthe Commission has adopted a different rule. 29 U.S.C. ? 661(f); seeQuality Stamping Prod. Co., 79 OSAHRC 28\/F11, 7 BNA OSHC 1285, 1979 CCHOSHD ? 23,250 (No. 78-235, 1979), and Federated Metals, Inc., supra.Federal Rule 34(b) states, in pertinent part:The party upon whom the request is served shall serve a written responsewithin 30 days after the service of the request . . . .The response shall state, with respect to each item or category, thatinspection will be allowed as requested, unless the request is objectedto, in which event the reasons for objection shall be stated. Ifobjection is made to part of an item or category, the part shall bespecified. The party submitting the request may move for an order underRule 37(a) with respect to any objection to or any part thereof, or anyfailure to permit inspection as requested.[[4]] A moving party should not be denied necessary discovery because ofdelay caused by the opposing party’s failure to respond to discoveryrequests. Cf. Federated Metals, Inc., supra, and cases cited therein(dismissal under Federal Rule 41(b) is a sanction against theprosecuting party and therefore is improperly employed where theprosecuting party’s failure to proceed is largely the fault of thedefending party).[[5]] Because we decide that the requested discovery was improperlydenied, we do not decide whether the judge properly vacated the citationon the basis of the Secretary’s evidence. The issue of whether theSecretary has established the alleged violation of ? 1910.95(b)(1) willhave to be decided on the basis of the record produced after any furtherdiscovery. The issue of feasibility must be considered under Sun Ship,Inc., 82 OSAHRC, 11 BNA OSHC 1082, 1982 CCH OSHD ? 26,353 (No. 16118,1982), appeal filed, No. 83-3081 (3rd Cir. Feb. 14, 1983). “