“Docket No. 78-5476 SECRETARY OF LABOR,Complainant,v.GENERAL MOTORS CORPORATION, DELCO PRODUCTS DIVISION,Respondent.OSHRC Docket No. 78-5476DECISIONBefore:\u00a0 ROWLAND, Chairman; CLEARY and COTTINE, Commissioners. BY THE COMMISSION:In this case, Administrative Law Judge David J. Knight vacated a citationitem alleging that General Motors Corporation, Delco Products Division violated the noisestandard at 29 C.F.R. ? 1910.95(b)(1).[[1]]\u00a0 The judge decided that the Secretary ofLabor failed to prove the feasibility of engineering controls which the Secretary believedGeneral Motors should have implemented in its Delco Products facility in Rochester, NewYork.\u00a0 The Secretary filed a petition for review in which he contended that hisfailure to prove feasibility was caused by his inability to obtain a discovery inspectionof General Motors’ facility.\u00a0 The Secretary argued that Judge Knight had abused hisdiscretion when, several weeks prior to the hearing, the judge had denied the Secretary’smotion to compel the discovery inspection.\u00a0 The Secretary therefore argued in hispetition for review that the judge’s decision should be reversed 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 conclude that the judgeabused his discretion in denying the Secretary’s discovery and we remand the case forfurther proceedings consistent with this opinion.IThe Secretary issued the citation in this case in late October 1978 and the parties filedtheir pleadings in January 1979. The case was assigned to Judge Knight, who scheduled itfor 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 complainant to examinecited areas to confirm the existence of feasible administrative or engineeringcontrols.\”\u00a0 The request stated that the inspection could be at a \”mutuallyconvenient time.\”\u00a0 On April 25, 1979, the Secretary asked the judge to postponethe scheduled hearing because of a trial scheduling conflict and the need for additionaltime for discovery.\u00a0 Judge Knight granted the request, rescheduling the hearing forJuly 25, 1979.\u00a0 At this time the judge stated that no further continuances would beallowed except \”for extraordinary reasons.\”General Motors did not file a written response to the Secretary’s writtenrequest for the discovery inspection.\u00a0 On May 15, 1979, the Secretary filed a secondrequest for entry at a \”mutually convenient time.\”\u00a0 In this request theSecretary stated that the name of the expert would be provided \”as soon as thatperson has been identified.\”\u00a0 On June 22, 1979, the Secretary wrote to GeneralMotors requesting a response to his request for entry.\u00a0 The Secretary informedGeneral Motors that he would file an appropriate motion if a response was not received byJune 29, 1979.\u00a0 Because the Secretary did not receive a response to any of hisrequests, the Secretary filed a motion asking the judge to compel General Motors to allowthe requested discovery \”on the soonest mutually convenient date.\”\u00a0 Thismotion was filed on July 2, 1979.On July 10, 1979, Judge Knight issued his order denying the motion to compel.\u00a0 Hereasoned that the Secretary had known of the need for discovery since April 1979, butwaited until near the scheduled hearing date to file the motion.\u00a0 The judge notedthat, when he had rescheduled the hearing, he had expressly prohibited furtherpostponements.At the hearing on July 25, 1979, the Secretary renewed his motion to compelbut, when the judge reiterated his denial, the Secretary presented the evidence which hehad been able to prepare.\u00a0 At the close of his evidence, the Secretary asked for aone-day postponement to obtain more evidence.\u00a0 Judge Knight denied this request ascoming too late.\u00a0 General Motors then moved to dismiss the Secretary’s case forinsufficient proof.\u00a0 When Judge Knight granted the motion, the hearing record wasclosed.In his petition presenting the contention that the judge abused hisdiscretion in denying the discovery inspection, the Secretary argues that he sufferedsubstantial prejudice through denial of the discovery, that General Motors would not havebeen prejudiced if the discovery had been allowed, and that there had been no undue delayin the proceedings.\u00a0 General Motors filed an opposition to the Secretary’s petitionin which General Motors argues that the judge properly exercised his authority to deny thediscovery.II In 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.\u00a0 This sound discretion should be guided by the objective of providing afair and prompt hearing to the parties.\u00a0 Moreover, the judge should consider the needof the moving party for the information sought, any undue burden to the party from whomdiscovery is sought, and, on balance, any undue delay in the proceedings that may occur.\u00a0 Given the judge’s broad discretion, a judge’s disposition of discovery matters isreversible only if the judge’s actions constitute an abuse of discretion resulting insubstantial prejudice.Discovery inspections, however, are ordinarily permissible where a violationof the noise standard is alleged.\u00a0 . . . In allowing the Secretary discovery in noisecases, the Commission has recognized that the Secretary is authorized to issue a citationon less evidence than he may need to prove the existence of the violation.\u00a0 Further,the Commission is cognizant that discovery by the Secretary in noise cases is critical,particularly to prepare expert testimony, for \”[w]ithout expert testimony, it isdoubtful that the Secretary can show the feasibility of engineering controls.\”9 BNA OSHC at 2141, 1981 CCH OSHD at p. 31,915 (citation sentences omittedthroughout the quote).\u00a0 Moreover, the Commission has indicated that some protractionof the proceedings is justified when it occurs to obtain necessary discovery and that, ifthe Secretary has not been excessively dilatory or otherwise contumacious and needsadditional time for such discovery, a denial of discovery can be an abuse of discretion.\u00a0 See Del Monte Corp., supra; Federated Metals, Inc., 81 OSAHRC 58\/A2, 9 BNA OSHC1906, 1981 CCH OSHD ? 25,425 (No. 79-2255, 1981).In this case, the Secretary sought the discovery inspection to prepare experttestimony about the feasibility of engineering controls for noise.\u00a0 When thediscovery was denied, the Secretary was unable to establish his case through experttestimony.\u00a0 In ruling on General Motors’ motion to dismiss for insufficient proof,the judge concluded that the Secretary had failed to prove the alleged noise violation.\u00a0 However, the Commission has noted that, without expert testimony, it is doubtfulthat the Secretary would be able to satisfy his prima facie burden of establishingfeasibility of abatement in noise cases.\u00a0 See Del Monte Corp., supra; Ralston-PurinaCo., 79 OSAHRC 81\/E6, 7 BNA OSHC 1730, 1979 CCH OSHD ? 23,897 (No. 78-145, 1979). \u00a0Moreover, had the Secretary met his prima facie burden, it is questionable whether,without expert testimony, the Secretary’s case would have been capable of withstandingrebuttal from General Motors.\u00a0 Thus, the Secretary’s need for the discovery wascritical even though he was able to present some evidence.\u00a0 Accordingly, thediscovery should have been permitted unless General Motors would have suffered actualprejudice from allowing it or unless the Secretary’s conduct throughout the proceedingswas marked by excessive dilatoriness rising to the level of contumacy.\u00a0 See SamsoniteCorp., 82 OSAHRC 26\/A2, 10 BNA OSHC 1583, 1982 CCH OSHD ? 26,054 (No. 79-5649, 1982); DelMonte Corp., supra; Federated Metals, Inc., supra.General Motors does not claim that it has already suffered any prejudice fromthe Secretary’s conduct in seeking the discovery. Also, although General Motors argued inthe proceedings prior to this review that permitting the discovery near the scheduledhearing would have created scheduling problems for General Motors’ attorneys and experts,and would have necessitated extra case preparation, such claims do not constitute legalprejudice.\u00a0 The asserted inconveniences can be cured by a moderate continuance of thehearing date.\u00a0 See Samsonite Corp., supra.The remaining matter, then, is whether the Secretary’s conduct in theproceedings was unduly dilatory to the point of contumacy.\u00a0 In denying theSecretary’s discovery, the judge decided that the Secretary had filed his motion to compelthe discovery too late, near the date scheduled for the hearing.\u00a0 However, the datefor the hearing was only nine months after the citation issued.\u00a0 Also, only threemonths had elapsed between the Secretary’s first request for the discovery and theSecretary’s motion to compel, and only a total of six months had elapsed from thepleadings to the motion.\u00a0 Both parties had been active throughout the case.\u00a0 Theparties began discovery within a reasonable time after the pleadings were filed, anddiscovery continued until the hearing.\u00a0 Thus, the proceedings in this case had notbeen protracted at the time when the judge denied the motion to compel discovery anddeclined to post-pone the hearing a second time.\u00a0 There is an interest in promptresolution of contested cases.\u00a0 However, health cases can be complex and discoveryrelatively time-consuming without being unreasonable.\u00a0 Thus, the need for discoverycan justify an additional hearing postponement even when the judge has previously statedto the parties that any further postponements will be disallowed.\u00a0 See Del MonteCorp., supra; Federated Metals, Inc., supra.With the support of an affidavit filed by its attorney, General Motors claimsthat, subsequent to the Secretary’s first request for the discovery inspection, GeneralMotors agreed orally to the discovery if the Secretary named his expert and the date hewanted the inspection.\u00a0 However, according to General Motors, the Secretary neverresponded with this information.\u00a0 Thus, General Motors argues that the Secretary knewhe could have had the discovery well before the hearing but he did not make any reasonableattempt to carry it out.\u00a0 This claim is directly contradicted by an affidavitsubmitted by the Secretary’s attorney stating that there was no response to theSecretary’s requests for the discovery inspection.On the basis of the parties’ conflicting representations regarding oralcommunications, the Commission is unable to determine whether the Secretary’s conduct wasunduly dilatory or otherwise contumacious and we must rely on the written record.[[2]]\u00a0 The Federal Rules of Civil Procedure[[3]] provide for a written response to adiscovery 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.\u00a0 If General Motorsobjected to the Secretary’s requests and sought greater specificity, General Motors shouldhave filed the required written response stating its objections under Fed. R. Civ. P.34(b).\u00a0 In the absence of a written response, the Secretary does not have to disproveGeneral Motors’ claimed oral response.\u00a0 The Secretary filed three discovery requests,General Motors did not file responses, and the Secretary therefore was required to seek anorder compelling the discovery.\u00a0 The record demonstrates that the Secretary’s failureto complete discovery before the scheduled hearing was caused to a substantial extent byGeneral Motors’ inaction.[[4]]\u00a0 In view of this inaction causing the Secretary’sdiscovery to be incomplete as well as our conclusion that the parties’ conduct during theproceedings had been otherwise reasonably diligent and the proceedings had not been undulyprotracted, the Secretary’s conductcannot be considered excessively dilatory to the point of contumacy.\u00a0 Accordingly,the judge’s denial of the Secretary’s motion for an order to compel discovery was an abuseof discretion.The judge’s order denying the discovery and his decision vacating theSecretary’s citation are therefore reversed.\u00a0 This case is remanded to the judge forfurther proceedings consistent with this opinion, which may include postponement of thehearing until the Secretary is afforded the opportunity to complete discovery.[[5]] \u00a0SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED:\u00a0 APR 27 1983The Administrative Law Judge decision in this matter is unavailable in this format.\u00a0 To obtain a copy of this document, please request one from our Public InformationOffice 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 employeesare subjected to sound exceeding those listed in Table G-16, feasible administrative orengineering 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 June 22, 1979.[[3]] Commission proceedings are governed by the Federal Rules unless theCommission has adopted a different rule.\u00a0 29 U.S.C. ? 661(f); see Quality StampingProd. Co., 79 OSAHRC 28\/F11, 7 BNA OSHC 1285, 1979 CCH OSHD ? 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 response within 30 daysafter the service of the request . . . .The response shall state, with respect to each item or category, that inspection will beallowed as requested, unless the request is objected to, in which event the reasons forobjection shall be stated.\u00a0 If objection is made to part of an item or category, thepart shall be specified.\u00a0 The party submitting the request may move for an orderunder Rule 37(a) with respect to any objection to or any part thereof, or any failure topermit 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 discovery requests.\u00a0 Cf.Federated Metals, Inc., supra, and cases cited therein (dismissal under Federal Rule 41(b)is a sanction against the prosecuting party and therefore is improperly employed where theprosecuting party’s failure to proceed is largely the fault of the defending party).[[5]] Because we decide that the requested discovery was improperly denied,we do not decide whether the judge properly vacated the citation on the basis of theSecretary’s evidence.\u00a0 The issue of whether the Secretary has established the allegedviolation of ? 1910.95(b)(1) will have to be decided on the basis of the record producedafter any further discovery.\u00a0 The issue of feasibility must be considered under SunShip, Inc., 82 OSAHRC, 11 BNA OSHC 1082, 1982 CCH OSHD ? 26,353 (No. 16118, 1982), appealfiled, No. 83-3081 (3rd Cir. Feb. 14, 1983). \u00a0”