“SECRETARY OF LABOR,Complainant,v.NL INDUSTRIES, INC.,Respondent.UNITED STEELWORKERS OF AMERICA,AFL-CIO-CLC AND LOCAL 5554-J,Authorized EmployeeRepresentative.OSHRC Docket No. 78-5204_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionpursuant to section 12(j), 29 U.S.C. ? 661(i), of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). TheCommission is an adjudicatory agency, independent of the Department ofLabor and the Occupational Safety and Health Administration. It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(c).The Secretary of Labor cited NL Industries for allegedly failing toabate a violation of an OSHA standard regulating employee exposure toairborne lead and for allegedly committing other willful, repeated, andserious violations of the Act. An administrative law judge affirmed allof the Secretary’s charges and assessed penalties totaling $536,000. The judge’s order was issued following a truncated hearing at which, asa sanction for failing to comply with a discovery order, he precluded NLfrom offering any defense. We conclude that the judge abused hisdiscretion in his handling of the Secretary’s request for discovery andin his ultimate order sanctioning NL. We therefore set aside hissanctions order and decision and remand for further proceedings.IAt the times relevant to this case, NL operated a secondary leadsmelting plant in Beech Grove, Indiana.[[1]] In 1976, following aninspection of the plant, the Secretary issued to NL citations allegingvarious violations relating to exposure of employees to lead. Onecitation alleged that NL violated 29 C.F.R. ? 1910.1000(e) by failing toemploy feasible engineering and administrative controls to reduce thelead exposure of employees in certain job categories to permissiblelimits. Following NL’s contest of the citations, the Secretary and NLagreed that NL would abate the violation of section 1910.1000(e) byinstalling certain specific engineering controls. On January 31, 1978,an administrative law judge approved the settlement agreement. Theagreement, which the judge’s order incorporated, specified a finalabatement date of August 1, 1978, for the installation of theengineering controls.The Secretary again inspected NL’s Beech Grove plant between August 23and September 1, 1978. On October 25, 1978, the Secretary issued to NLa notification of failure to abate the violation of section 1910.1000(e)for the period August 1 to September 1, 1978. At the same time, theSecretary issued two other citations containing thirteen items. TheSecretary subsequently consolidated two of these items and withdrew one,leaving the following eleven items at issue: five items allegingwillful-serious violations of the respirator standard at 29 C.F.R. ?1910.134; three items for willful-serious violations of 29 U.S.C. ?654(a)(1), the general duty clause of the Act, alleging deficiencies inthe manner in which NL’s employees received chelation therapy;[[2]] twowillful-serious items alleging violations of the sanitation standard at29 C.F.R. ? 1910.141; and one repeat-willful-serious item alleging thatemployees in job categories not mentioned in the 1976 citation wereoverexposed to airborne lead. The Secretary proposed penalties totaling$141,000.[[3]]IINL contested these citations and proposed penalties. On March 20, 1979,the Secretary filed a series of interrogatories in the case togetherwith a request for production of documents and a motion for entry onland. A brief description of the principal interrogatories willillustrate the breadth of the Secretary’s discovery request.Interrogatory 1 asked for detailed information identifying everyemployee who worked in the Beech Grove plant, from 1973 to the present,in the job categories listed in both the 1976 and 1978 citations and fordetailed information concerning the work assignments for each employee. All records of airborne lead sampling for each such employee wererequested, as well as records of all medical examinations given suchemployees. The Secretary asked for identification of all employees whohad received chelation therapy and for detailed information concerningany such treatment.Interrogatory 4 asked for identification and copies of all studies,surveys, or tests conducted or caused to be conducted by NL for thepurpose of abatement or control of lead exposure, and interrogatory 5asked for all corrective action NL had taken pursuant to such studiesfor the periods prior to August 21, 1978, and after October 23, 1978. Interrogatory 8 asked NL to identify all administrative or engineeringcontrols to reduce airborne lead concentrations that the companybelieved were not economically or technologically feasible in itsworkplace and to disclose, with supporting documentation, all reports,figures, calculations, and data used to reach this determination.Interrogatory 9 asked NL to identify each workplace under its controlthat performed lead smelting activities similar to those performed atits Beech Grove plant and to attach all records \”relating to employeeexposure to lead and\/or to the use of chelating agents on lead exposedemployees.\”Interrogatory 14 asked NL to produce all layouts, blueprints, and\/orrelated records or documents \”which in any way relate to or depict\” NL’sBeech Grove workplace including, but not limited to, the areas referredto in the citations. This interrogatory also requested NL to produce alarge variety of documents pertaining to employee exposure to lead andabatement of such exposure and to use of personal protective equipmentand chelating drugs. The documents sought by the Secretary includedsuch categories of material as medical records and employee medicaldata, grievances and employee complaints, and trade publications andsimilar documents. NL also was asked for all documents from 1973 to thepresent concerning medical services performed for any employee based onlead exposure, for all policy statements or similar material \”which inany way relate to or discuss\” the use of chelating agents, and for allphotographs and records including employee sampling data taken by or forNL during any OSHA inspection of the Beech Grove worksite.On April 12, 1979, NL filed its objections to certain of the Secretary’sinterrogatories, contending that much of the information sought by theSecretary was not relevant and not reasonably calculated to lead to thediscovery of admissible evidence, that certain of the requests,particularly the requests for production of documents, were overlyburdensome and overbroad, and that the employee medical records theSecretary sought were privileged. On April 23, the judge received theSecretary’s response to NL’s objections, in which the Secretary movedfor an order compelling NL to answer. The next day, before NL had anopportunity to respond to the motion to compel,[[4]] and without rulingon any of the objections NL had previously raised, the judge issued anorder requiring NL to answer all interrogatories by June 15. On May 1,NL filed a timely response to the Secretary’s motion to compel togetherwith responses to the interrogatories to which it had not objected. There is no indication that the judge reconsidered his order compellinganswers in light of NL’s response.On May 2, NL filed with the Commission a request for special permissionto appeal the judge’s order compelling answers. On June 4, NL filedwith the judge a motion for a stay of the proceedings pending theCommission’s ruling on its motion for special permission to appeal. Thejudge denied this motion on June 7. On June 15, NL moved for anextension of time to August 15 to answer the interrogatories. The judgedid not rule on this motion.On June 20, the Secretary filed an opposition to NL’s request for anextension and moved for a hearing to impose sanctions on NL for failingto comply with the judge’s discovery order. On July 9, the judge set ahearing for July 20, at which NL would be required to show cause why itshould not be sanctioned. However, on July 5, the Commission issued anorder, which the judge did not receive until after July 9, stayingproceedings in the case pending its ruling on NL’s request for specialpermission to appeal. Thus, the order issued by the judge on July 9 wasnullified. On September 6, the Commission issued an order denying NL’srequest for special permission to appeal and dissolving the stay. OnSeptember 24, the judge rescheduled the show cause hearing for October25 and ordered NL to comply with his April 24 order compelling answers. He required NL to answer by October 20.On October 16, the Secretary’s counsel sent a letter to NL’s counselconfirming an agreement they had reached concerning the discoveryschedule. They agreed that NL would submit further answers to theSecretary’s interrogatories and that the documents required to beproduced by the interrogatories could be inspected by the Secretary’scounsel at Hightstown, New Jersey, where NL’s Metals Divisionheadquarters was located. This inspection was to take place the week ofNovember 5. On October 19, NL filed its response to theinterrogatories, consisting of amended and supplemental answers and anindex listing the content of boxes and drawers of documents that NLwould make available for the Secretary to inspect. The index listed thetypes of documents to be found in each box or drawer.At the show cause hearing on October 25, the Secretary argued that NL’sresponse was insufficient. His main objective was that the indexsupplied by NL did not specify in which boxes of drawers of documentscould be found the answer to each specific interrogatory. Immediatelyupon hearing the objection, counsel for NL offered to identify thespecific box or boxes of documents to which each interrogatory referred. The judge ruled, however, that NL had already had sufficient time toprovide adequate answers and he therefore refused to afford NL theopportunity to meet the Secretary’s objection.Having ruled that NL’s response was inadequate, the judge announced thathe would impose severe sanctions on the company. On November 15, 1979,he entered the following sanctions order requested by the Secretary: (1) NL’s answer and affirmative defenses were stricken; (2) a defaultjudgment on liability was entered against NL; (3) a hearing would beheld at which the Secretary’s burden would consist only of proving thewillful, repeated, serious, and failure to abate characterizations ofthe charges; and (4) NL could not offer testimony or evidence of its ownat the hearing, but could only introduce evidence throughcross-examination of the Secretary’s witnesses. As noted above,following the hearing the judge affirmed all of the Secretary’s chargesand assessed the amended penalty the Secretary had proposed.IIIRule 53(a) of the Commission’s rules of procedure provides:2200.53 _Discovery depositions and interrogatories_.(a) Except by special order of the Commission or the judge, discoverydepositions of parties, intervenors, or witnesses, and interrogatoriesdirected to parties, intervenors, or witnesses shall not be allowed.Thus, discovery by interrogatories and depositions in Commissionproceedings is not a matter of right. A party seeking such discoverymust apply to the judge, and the judge must exercise his sounddiscretion in ruling on the application.[[5]]The judge’s exercise of discretion should be guided by the objective ofproviding a fair and prompt hearing to the parties. Before ruling on adiscovery request, the judge should carefully inquire into the extent towhich the party seeking discovery needs the information sought, anyundue burden to the party from whom the discovery is sought, and, onbalance, any undue delay in the proceedings which may occur. _KLI,Inc_., 77 OSAHRC 202\/A2, 6 BNA OSHC 1097, 1098, 1977-78 CCH OSHD ?22,350 at p. 26,937 (No. 13490, 1977). Permitting the discovery of vastamounts of marginally relevant material will serve only to delay a caseand to unduly burden the party from whom discovery is sought. A judgeshould therefore look with disfavor on broad, open-ended discoveryrequests.The judge failed to conduct the necessary inquiry in this case. NL is alarge company, with numerous plants engaged in lead smelting. TheSecretary’s interrogatories in effect asked NL to supply all informationin its possession concerning employee lead exposures at all of theseplants. Given the nature and extent of NL’s business and the broad,unrestricted nature of the interrogatories, it is apparent that NL wouldhave to review and provide a vast amount of documentation to comply withthe judge’s order.The record contains no indication that the judge balanced the need forthe Secretary to obtain discovery against the burden the Secretary’srequest imposed on NL. The judge failed to address NL’s argumentsopposing the Secretary’s discovery request, and he issued his ordercompelling NL to answer only one day after he received the Secretary’smotion for such an order and without waiting the period of timepermitted by the Commission’s rules for NL to file a response to themotion. Given the extensive nature of the interrogatories and NL’sobjections, which included physician-patient privilege, relevance,improper shifting of the burden of proof, and burdensomeness, it wasincumbent upon the judge to carefully weigh the parties’ arguments. Neither the record nor the judge’s order disposing of NL’s objections,stating the objections were \”Denied,\” indicates this was done.[[6]]Furthermore, the judge did not acknowledge the fact that NL did fileinitial answers to those interrogatories to which it had not objected,nor does the record indicate that the judge made any attempt to evaluatethe adequacy of those answers. Moreover, NL subsequently agreed to makeadditional information available to the Secretary and by the time of thesanctions hearing on October 25, the Secretary had agreed to examine thedocumentation at NL’s Hightstown, New Jersey, facility during the weekof November 5. Until the Secretary conducted this examination, thejudge had no basis on which to conclude that NL had not in fact made therequested documentation available to the Secretary.[[7]] At thesanctions hearing, the Secretary objected that the index supplied by NLwas not sufficiently detailed, but NL agreed to provide a more detailedindex and should have been afforded the opportunity to do so before thescheduled examination of documents was to take place.The judge continually asserted that he was concerned with expediting thecase, but he failed to recognize that granting in full the Secretary’sbroad discovery request was incompatible with this objective. He alsoappeared to believe that the case could properly be expedited simply byestablishing and adhering to an unrealistically short time limit for NLto answer the interrogatories. We cannot condone a course of actionthat places the burden of expedition entirely on one party.Accordingly, the judge’s sanctions order and decision are set aside andthe case is remanded to the Chief Judge[[8]] for further proceedings,consistent with this decision.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: JUL 20 1984 CLEARY, Commissioner, dissenting:NL’s litigation strategy of delay and obstruction in discovery issharply at odds with the Commission’s mandate to conduct speedyadjudication of cases brought before it. _Atlas Roofing Co. V. OSHRC_,430 U.S. 442 (1977). A statute that has been construed to considertrial by jury as inconsistent with this mandate can hardly be readfairly to permit discovery abuse inhibiting prompt adjudication. NL’sfailure to make a good faith effort to comply with the administrativelaw judge’s lawful discovery order justified sanctions. Accordingly, Idissent from the majority’s decision to set aside the sanctions order._THE PURPOSE OF DISCOVERY_Before examining NL’s conduct in the discovery stage of theseproceedings, it is useful to examine the role that discovery plays inCommission proceedings.A case before the Commission is initiated by the issuance of a citationor notification of failure to abate by the Secretary and the filing of atimely notice of contest by the employer.[[1]] Most often, the citationor notification of failure to abate is issued after a physicalinspection of the employer’s workplace by the Secretary’srepresentative.[[2]] If, during such an inspection, the Secretaryobtains information that leads him to believe the employer violated theAct or failed to timely abate an earlier violation, the Secretary isauthorized to issue a citation or notification of failure to abate.[[3]]If the employer contests the Secretary’s enforcement action and the casecomes before the Commission for a hearing, the Secretary needs more thana belief that the employer violated the Act; he must be prepared toprove the violation by a preponderance of the evidence. _OlinConstruction Co. v. OSHRC_, 525 F.2d 464 (2d Cir. 1975); _AstraPharmaceutical Products_, 81 OSAHRC 79\/D9, 9 BNA OSHC 2126, 2129, 1981CCH OSHD ? 25,578 at p. 31,899 (No. 78-6247, 1981), _aff’d_, 681 F.2d 69(1st Cir. 1982). In a case such as this, involving numerous complexissues arising under standards regulating employee exposure to a toxicsubstance, that burden is a heavy one. The information gathered by theSecretary during a relatively brief inspection will necessarily not beas complete as the information the employer has in its possessionregarding its continuing operations.[[4]] Thus, while the Secretary mayhave sufficient evidence to issue a citation, he may need to obtaininformation that the employer possesses in order to sustain his burdenof proof. He may also need that information to be in a position torebut evidence that the employer introduces.Discovery, however, is not simply a tool to enable the Secretary togather information adverse to an employer. The employer can also usediscovery to learn the evidence on which the Secretary bases his chargesso as to be better able to present its defense. The ultimate goal of aCommission proceeding is to resolve as accurately as possible theSecretary’s charges, whether that resolution is favorable or unfavorableto the employer. By giving all parties access to all potentiallyrelevant information, discovery tends to assure that the Commission’sdecision will be the correct one. By enabling all parties to know theinformation in the possession of the other parties prior to the hearing,discovery minimizes the advantage a party may gain by presentingsurprise testimony. Discovery also tends to facilitate settlements byenabling parties to evaluate the relative strength and merits of theircase before the hearing. These benefits of discovery, of course, arenot unique to Commission proceedings, but provide the basis for theliberal discovery provisions of the Federal Rules of Civil Procedure. _See_ _Hickman v. Taylor_, 329 U.S. 495, 507 (1947).One of the few documents that NL did provide in response to theSecretary’s interrogatories illustrates the potential value ofdiscovery. That document is an internal memorandum, dated October 12,1978, from J.W. Roper, NL’s corporate safety director, to H.J. Heinkeleof NL’s Metal Division. The memo states:_CONFIDENTIAL_Enclosed is a letter from Dr. Lerner which discusses chelation.Generally speaking, the problem which surfaced in Beech Grove isprevalent in other plants, namely, Cleveland, Dallas and to some extentPedricktown. Too many people have been chelated, put back into the workarea and their blood leads allowed to rise again.We all recognize that elevated blood levels are caused by many factors;but I believe the lack of enforcement of the proper wearing ofrespirators, enforcement of hygiene rules and the lack of supervisors toenforce good work habits are the primary causes. How else can weexplain the differences in blood leads from one plant to another?Unless strict adherence to good work practices, personal hygiene andrespiratory protection is enforced, the Metal Division will have more\”Beech Grove\” episodes in the future.OSHA presently is clamoring for the Medical Records of 26 of our BeechGrove employees. I do not know what those records contain, but I amwilling to wager the contents will not improve NL’s image if revealed.The Division must stress the importance of this and extract objectiveson the reduction of blood lead levels from each plant manager.This memorandum contains a number of potential implications for thiscase. First, it indicates that NL employees possess elevated blood leadlevels,[[5]] that NL is extensively employing chelation therapy toreduce those levels,[[6]] and that at certain plants, including BeechGrove, NL has not been adequately enforcing proper wearing ofrespirators and hygiene rules. These are all directly relevant to thecharges made in the Secretary’s citations. Moreover, the memorandumstates that blood lead levels vary considerably from one NL plant toanother, and suggests that the Beech Grove plant is considerably worsethan others. This indicates that NL has been able to reduce leadexposure at other plants and is therefore indicative that it would befeasible to reduce the lead levels at Beech Grove. It also suggeststhat an examination of NL’s experience with lead exposures and controlsat other plants will shed useful light on various issues in this case,particularly the allegation that certain violations were willful. Finally, the statement that employee medical records from Beech Grove\”will not improve NL’s image if revealed,\” demonstrates both theexistence of such records and that the records are likely to be damagingto NL’s position in the case._NL’S OBJECTIONS_The judge convened a preliminary hearing on February 20, 1979, todiscuss, among other things, a schedule for discovery. Both theSecretary and NL stated that they wished to obtain discovery throughinterrogatories, and the judge gave his approval for the parties to doso, subject to objections to specific interrogatories by the party fromwhom discovery was sought. The judge stated that he expected theparties to cooperate in exchanging information, noting that the caseinvolved serious charges that should be disposed of expeditiously sothat NL would be exonerated if the charges were not true, and employeeswould be protected if the charges were true.[[7]] The judge furtherstressed that he expected all parties to comply with the prehearingorder he had previously issued which stated, among other things, thatparties who failed to comply with the judge’s orders would be subject tosanctions, including potential dismissal of their case. The judgereferred to _Hoerner Waldorf Corp_., 76 OSAHRC 135\/D12, 4 BNA OSHC 1836,1976-77 CCH OSHD ? 21,215 (No. 12713, 1976), in which the Commissionaffirmed a decision by the judge to dismiss the Secretary’s chargesbecause the Secretary had failed to comply with the judge’s order toexchange witness lists prior to trial.The Secretary submitted his interrogatories on March 20, 1979, and NLfiled its objections on April 12. The majority discusses theinterrogatories in some detail, but it only briefly states the nature ofNL’s objections. The majority then faults the judge for not carefullyweighing NL’s objections, implying that the judge acted summarily andwithout giving adequate consideration to possibly meritoriousarguments. However, when one examines NL’s objections, it becomes clearthat those objections are so lacking in merit as to be frivolous, andthat the judge acted properly in summarily rejecting them.The interrogatories sought certain information going back to 1973, theyear the Beech Grove plant was first inspected by OSHA.[[8]] One ofNL’s principal objections was that all information prior to theinspection that began on August 21, 1978, was irrelevant to thisproceeding because all prior disputes between the parties had beensettled by Judge Dixon’s order in September, 1977, approving thesettlement of the 1976 lead citations. However, the alleged violationsand penalty proposals in this case place in issue NL’s entire course ofconduct under the Act with respect to its employees’ exposure to lead. See _supra_ note 4. Moreover, although it argued to the judge thateverything that transpired before August 21, 1978 was irrelevant tothese proceedings, on review NL laments that the sanctions orderprecluded it from demonstrating its good faith by introducing evidenceconcerning its abatement activities between 1973 and 1976. That NLitself recognizes the obvious relevance of its activities prior toAugust 21, 1978, is the best illustration of the lack of merit in itsobjection.Several of NL’s other objections were directed at the request it producerecords of medical examinations given to employees. NL asserted thatsuch records can only be obtained by search warrant or administrativesubpoena, not through discovery. As authority for this proposition, NLcited _Marshall v. Barlow’s, Inc._, 436 U.S. 307 (1978). In _Barlow’s_,the Supreme Court held that the Act was unconstitutional to the extentit purported to authorize nonconsensual, warrantless searches ofworkplaces. The case is not even remotely relevant to a party’s rightto obtain documents through discovery in a case under litigation, andNL’s reliance on the case is typical of the lack of any sound basisunderlying NL’s objections to discovery.[[9]]NL further contended that the Secretary’s request for medical records\”raises the issue of the physician-patient privilege.\” A valid claim ofprivilege will, of course, preclude discovery. Fed. R. Civ. P.26(b)(1). However, as even cursory legal research would have shown,there is no common law physician-patient privilege, and no suchprivilege has ever been recognized by the federal courts. _West PointPepperell, Inc._, 81 OSAHRC 47\/A2, 9 BNA OSHC 1784, 1793, 1981 CCH OSHD? 25,356 at p. 31,487 (No. 77-4297, 1981). It is not surprising that NLcited no authority to support this claim of privilege.[[10]]The majority finds that the judge did not give adequate consideration tothe burden the Secretary’s discovery request imposed on NL. However,NL’s \”burdensomeness\” objection was patently insufficient to raise anissue that required serious consideration. Most, if not all, of theSecretary’s interrogatories either asked for NL to produce certainbusiness records or asked for information that could be gathered fromits business records. Furthermore, most of the interrogatories soughtinformation only about the Beech Grove plant, a relatively smallfacility with approximately 50 employees. As the majority notes, NL isa large company, among the largest in the country. Presumably, itmaintained its business records in some sort of orderly manner. If thiswas not the case, NL’s objections should have indicated the condition ofits records and why the interrogatories would be unduly burdensome. ButNL’s unsupported assertion that production would be \”burdensome\” gavethe judge no basis to deny discovery of unquestionably relevantmaterial.[[11]] _See_ _Burns v. Thiokol Chemical Corp_., 483 F.2d 300,307 (5th Cir. 1973); _Martin v. Easton Publishing Co_., 85 F.R.D. 312(E.D. Pa. 1980); _In_ _Re_ _Folding Carton Antitrust Litigation_, 83F.R.D. 260 (N.D. Ill., 1979); _Moore’s Federal Practice_, ? 33.27 (2ded., 1970).Moreover, any burden on a party called upon to retrieve information frombusiness records is greatly alleviated by the procedure permitted byRule 33(c) of the Federal Rules of Civil Procedure, which provides:Rule 33. _Interrogatories to Parties_* * *(c) _Option To Produce Business Records_. Where the answer to aninterrogatory may be derived or ascertained from the business records ofthe party upon whom the interrogatory has been served or from anexamination, audit or inspection of such business records, including acompilation, abstract or summary thereof, and the burden of deriving orascertaining the answer is substantially the same for the party servingthe interrogatory as for the party served, it is a sufficient answer tosuch interrogatory to specify the records from which the answer may bederived or ascertained and to afford to the party serving theinterrogatory reasonable opportunity to examine, audit or inspect suchrecords and to make copies, compilations, abstracts or summaries. Aspecification shall be in sufficient detail to permit the interrogatingparty to locate and to identify, as readily as can the party served, therecords from which the answer must be ascertained.Thus, in order to answer those interrogatories that required productionof either business records or information that the Secretary could havegleaned from the records as easily as NL, all NL had to do was specifythe records containing the answers and offer the Secretary a reasonableopportunity to examine the records. As events showed, the Secretary wasfully agreeable to such a procedure, and was willing to travel to NL’sMetal Division headquarters in Hightstown, New Jersey to examine thedocuments. Indeed, it was in reliance on Rule 33(c) that NL claimed itcomplied with the judge’s order by supplying an \”index\” to documentsthat purportedly contained the information sought by the Secretary. Iwill have more to say about that \”index\” later. For now, it is enoughto observe that NL’s objection, and the majority’s agreement, thatanswering the interrogatories would be unduly burdensome is unsupportedby the record and ignores the fact that any burden to NL could have beenlargely alleviated by following the procedure provided in Rule 33(c). _See_ _Burns v. Thiokol Chemical Corp._, 483 F.2d at 307.One more objection by NL is worth mentioning. In its answer, NL deniedthat engineering or administrative controls to reduce lead exposure weretechnologically or economically feasible. Interrogatory 7 essentiallyasked NL if it continued to maintain this position. If NL answeredInterrogatory 7 in the affirmative, then Interrogatory 8 asked forinformation concerning specific controls NL believed were infeasible andfor any supporting calculations, figures, and documentation NL used toreach that conclusion.NL objected to this interrogatory, stating:NL objects to the attempt by OSHA to require NL to identify possiblecontrols which have not been utilized. This inquiry attempts animproper shift of the burden statutorily imposed upon OSHA todemonstrate the feasibility of specific controls. NL’s judgment orspeculation as to what engineering controls may _not_ be feasible has nobearing on OSHA’s independent duty to assess and prove what engineeringcontrols _are_ feasible. Moreover, NL cannot reasonably be expected toidentify controls which are believed to be \”not technologically oreconomically feasible.\” This requires NL to speculate regarding futureinventions which have not yet been made, or regarding processes whichhave never been applied to NL’s business.As with NL’s other objections, this one is lacking in merit. The firstpart of the objection — that the request improperly shifts theSecretary’s burden of proof — ignores one of the basic purposes ofdiscovery: that the party with the burden of proof may need to obtaininformation from the opposing party to satisfy that burden. It alsoignores the fact that NL raised infeasibility as a defense, and a partyis obviously entitled to use discovery to learn the factual basis of itsopponent’s defenses.The latter part of the objection is an attempt to give the objectionrespectability by misstating what the interrogatory asks. Theinterrogatory in no sense asks NL to speculate on future inventions; itasks NL to identify controls it has concluded are not feasible. If NLhas done studies and has drawn conclusions that certain controls are notfeasible, it need only identify those controls. If it has not done suchstudies, it need only give that information.NL raised other objections to certain of the interrogatories, but nopurpose would be served by an elaborate examination of all itsobjections; all the other objections are similarly lacking in merit. See _supra_ note 9. But this rather understates the point. When oneexamines NL’s objections in their entirety, a pattern emerges; not onlyare the objections not meritorious, but they lack any factual or legalsupport to the point that I conclude they could not have been made withthe expectation that the judge would rule favorably on them._THE JUDGE’S EXERCISE OF DISCRETION_There are two fundamental questions this case presents in its currentposture: (1) Did the judge abuse his discretion in ordering NL toanswer the Secretary’s interrogatories; and (2) If the judge did notabuse his discretion, were NL’s answers adequate. In view of themajority decision I do not reach the question whether the sanctions thejudge imposed on NL were appropriate in their entirety.As to the first question, the judge’s order was well within hisdiscretion.[[12]] The judge was required to balance the Secretary’sneed for discovery, the burden to NL, and any delay in the proceedingsdiscovery would create. _KLI, Inc_., 77 OSAHRC 202\/A2, 6 BNA OSHC 1097,1977-78 CCH OSHD ? 22,350 (No. 13490, 1977). The interrogatoriesunquestionably sought relevant information, and the Secretary’s need fordiscovery, in light of the nature of the issues presented, was obvious. NL raised no colorable argument that production would be undulyburdensome and, as noted above, the procedure provided in Rule 33(c)would have reduced much of the work NL might have been required to do tocomply. The judge also recognized that the nature of the case requiredthat any unnecessary delay be avoided. That the judge chose to attemptto avoid delay by requiring the parties to comply with reasonable timelimits is hardly an abuse of discretion; it is in fact required byCommission Rule 53(b).[[13]]The majority concludes that the judge erred in permitting theinterrogatories over NL’s objections. In the majority’s view, a judgeshould look with disfavor on \”broad, open-ended\” discovery requests andshould keep the discovery process within reasonable bounds. While Iagree that the judge should keep control of the discovery process, hemust do so with the objectives of discovery in mind.Discovery often requires a litigant to disclose to the oppositioninformation that can be adverse, even devastating, to its position inthe litigation. Obviously, no litigant enjoys doing this, and a partycan be expected to avoid disclosing damaging information if there is anylegitimate way to do so. Thus, discovery requests must be framed in amanner that does not let the party from whom discovery is soughtselectively decide what to turn over and what to withhold. _See__Rozier v. Ford Motor Co_., 573 F.2d 1332, 1346 (5th Cir. 1978). If aparty frames his discovery requests narrowly, he runs the risk that theopposing party can literally comply with the request while withholdingparticularly damaging information. Thus, by their nature, discoveryrequests must be broadly framed. The Secretary’s interrogatories, whilebroad, sought information that was unquestionably relevant to thiscase. In the absence of any objections of colorable merit, the judgedid not abuse his discretion in granting the request in full.The majority also faults the judge for ruling on the Secretary’s motionto compel answers without giving NL ten days to respond to the motion. The majority ignores the fact that the judge acted pursuant to aprocedure to which all parties, including NL, had agreed. At thepreliminary hearing, it was agreed that the Secretary would fileinterrogatories, that NL would file its objections, and that the judgewould then rule on the objections. After the Secretary filed theinterrogatories, NL’s counsel sent the judge a telegram informing himthat the objections would be filed shortly and asking him not to ruleuntil he received the objections, demonstrating NL’s understanding thatthe interrogatories themselves were the motion to compel. After NLfiled its objections, the Secretary responded to the objections,explaining why the interrogatories were proper. In the same document,the Secretary made a formal motion to compel answers. However, since itwas understood that the objections NL had previously filed were in factits response to the motion to compel, the judge was justified in rulingon the interrogatories before the ten-day response period to the formalmotion had elapsed. Moreover, NL’s response to the formal motion simplyreiterated the same objections it had previously raised, and so gave thejudge no reason to reconsider his ruling.[[14]]Finally, the majority faults the judge for not addressing and carefullyweighing NL’s arguments. But this completely overlooks the fact thatthe judge held a hearing on October 25, 1979, for the explicit purposeof determining whether NL had complied with discovery. NL was presentand had every opportunity to renew its objections to discovery requestsand to argue against sanctions. NL produced witnesses who hadpurportedly attempted to compile information to respond to discovery. Certainly the judge did weigh NL’s arguments for in his decision in thiscase he extensively documented instances where he found NL had acted inbad faith in responding to requests for discovery. There is norequirement that a judge issue a written decision on preliminaryprocedural matters. The Act requires only that the judge issue a reportof the \”final disposition of the proceedings.\” 29 U.S.C. ? 661(i)._NL’S FAILURE TO COMPLY WITH THE JUDGE’S ORDER_NL never made any good faith attempt to comply with the judge’s orderrequiring answers to the interrogatories.[[15]] The judge’s order,issued on April 24, gave NL until June 15 to answer. On June 15, NLsubmitted a motion for an extension of time to August 15, saying: \”Despite the diligent efforts of both counsel and employees of NL, thehuge amount of work required in order to answer the remaininginterrogatories has not yet been completed. . . .\”The majority states that the judge did not rule on NL’s motion for anextension. But that is true only in form, not in substance. The judgedid not hold NL to the June 15 date for submitting answers, butultimately extended the date to October 20, more than four monthslater. During two of those months, the proceedings were stayed by orderof the Commission but, even discounting thosetwo months, NL was still given the two additional months it sought.At a meeting on October 11, the Secretary and NL reached an agreement asto NL’s obligations under the judge’s order.[[16]] The agreement wasrecorded in a letter from the Secretary’s counsel to NL’s:1. October 20, 1979 – Respondent will complete and submit answers toComplainant’s First Set of Interrogatories;2. October 20, 1979 – Respondent will submit to Complainant a documentlist identifying those documents which will be produced in response toComplainant’s discovery request;3. October 20, 1979 – Complainant will submit supplementary documentsand answers to respondent’s discovery requests;4. October 25, 1979 – Hearing scheduled before Judge Riehl;5. November 5, 1979 – During this week Complainant will inspect thosedocuments which Respondent produces in response to Complainant’sdiscovery and Judge Riehl’s Order regarding said discovery. Theinspection of documents will take place at Respondent’s Hightstown, NewJersey facility. Respondent agrees to provide true and correct copiesof any document requested by Complainant and Complainant agrees toreimburse Respondent for the costs of providing said copies. In lightof Respondent’s refusal to discuss the type of documents to be producedand the interrogatory to which said document relate, Complainant takesno position as to whether or not said production complies with JudgeRiehl’s Order nor does Complainant take any position as to theappropriate party who should bear the expense entailed in travel to NewJersey for the inspection and copying of documents.6. November 19, 1979 – During this week Knowlton Caplan will be allowedto enter and inspect Respondent’s Beech Grove, Indiana facility onbehalf of the Complainant.[[17]]On October 20, NL submitted what it asserted were answers to theinterrogatories. The response consisted almost entirely of a 29 page\”index\” which purported to identify documents that NL would makeavailable for the Secretary to examine. The first page contained a listof NL plants, with numerical entries for \”Records at Hights(town)\” and\”Records at Plant.\” For example, for Beech Grove the page listed 18records at Hightstown and one at the plant. The list also contained aspecial notation for Beech Grove at the bottom of the \”Records atHights(town)\” column: \”3 – in transit.\” For all of the plants, therewere listed a total of 191 records at Hightstown (including the 3 fromBeech Grove \”in transit\”), and 63 records at the various plants.[[18]]The remaining 28 pages is a handwritten, partially illegible listpurporting to characterize the contents of various boxes and drawers ofrecords at Hightstown. Apparently, there is supposed to be somecorrelation between this list and the \”Records at Hights(town)\” on thefirst page. Any such correlation, however, is completely obscure, forwhile the first page indicates that NL has a certain number of recordsrelating to each plant, the boxes and drawers in the remaining 28 pagesare either not identified by plant or they have documents from more thanone plant in them. Even more important, most of the references on thelist are to documents that are irrelevant to this case. For example,the following is one page of the list._Box E_ ERISA Documentation – Midwest(illegible)_Box F_ Midwest Area Terminated Employee Files(Misc. Sal.)Chicago Register CardsFringe Benefit Cards_Box G_ Employee History RecordsBenefit Cards – St. L. Park, Cleveland,Southern_Box H_ W\/C – Cleveland – 1977\” – St. Louis Pk. – 1977Hgt Injury Logs 75,76Misc. Benefit CardsHistory RecordsDisciplinary Logs – St. L. Pk – 77,78_Box I_ Employee History RecordsNot all of the references in the list are to irrelevant material. Scattered throughout are references to topics such as OSHA, Safety, Leadin Air, blood leads, and medical records. But most of the entries referto documents that cannot be considered within the scope of theinterrogatories.[[19]]NL brought to the sanctions hearing the people who had anything to dowith preparation of its answers. The 28-page list was prepared by PattyDollar, who was administrator of compensation and benefits for the MetalDivision and worked at the Hightstown plant. She stated that records ofclosed plants were transferred to Hightstown. She went through therecords at Hightstown and characterized the type of documents the filecontained. She stated: \”I did not go through each of the files. WhatI did was I reviewed basically what was in one box; if they were Workerscomp cases in half the box and disciplinary records in the other half ofthe box, that’s what went down on my list.\” In making the list, Ms.Dollar was not made aware of its purpose or of the specific type ofdocuments the Secretary was seeking. She was not told to look forrecords of chelation treatment or lead poisoning.At the sanctions hearing, Ms. Dollar produced another 15 page, mostlyhandwritten list describing records remaining at Beech Grove. As didthe other list, this list described the contents of numerous boxes,drawers, file cabinets, and bookcases of records. Counsel for NL statedhe had not previously seen the list but had a \”suspicion\” it was anindex of documents presently at Beech Grove. However, NL’s originalsubmission indicated that almost all of the Beech Grove records had beentransferred to Hightstown, and only one record remained at Beech Grove. NL never explained this discrepancy.NL also brought to the sanctions hearing John Wentz, who had been incharge of workmen’s compensation at Beech Grove. Wentz answered in theaffirmative when asked by the judge whether records relating to leadpoisoning were kept in specific drawers. Counsel for NL then statedthat, when Wentz left NL, counsel requested that Wentz’s records besegregated and sent to his office. Counsel stated that he had gonethrough Wentz’s files and found numerous studies, surveys, or tests forthe purpose of abatement in them. Counsel then sent those records toMs. Dollar \”for safe keeping.\” In NL’s answer to the interrogatories,the only reference to these documents was the notation that three BeechGrove records were \”in transit\” to Hightstown. There was no indicationof the nature of these records, despite the fact that they obviouslycontained information that the Secretary was seeking.Thus, as nearly as can be gleaned from this record, NL’s efforts toanswer the interrogatories consisted of the following. Wentz reviewedhis records at Beech Grove and prepared three boxes of documents thatwere highly relevant. These boxes were not supplied to the Secretary,nor was the Secretary even informed they existed. Instead, NL suppliedthe Secretary with cryptic lists summarizing all of the records NLcurrently had at Hightstown, whether or not relevant to the case, andindicating that other records were scattered throughout the country,some at plants that NL no longer owned. The lists were simply the mostgeneral summaries of the types of documents in various boxes and filedrawers, and were prepared by persons who had no idea what type ofinformation was being sought.[[20]] The only reference to the threeboxes which counsel knew contained relevant material was that three\”Beech Grove\” records were \”in transit.\” Beyond that, the informationgiven to the Secretary stated that only one \”record\” remained at BeechGrove, but it later developed that numerous records were still at theBeech Grove plant at the time of the sanctions hearing. Thus, theinformation supplied in response to the interrogatories was inaccurateas well as incomplete. It was also not responsive to the interrogatories.As I stated above, when answers to interrogatories can be derived from aparty’s business records, Rule 33(c) permits the party the option ofpermitting the other party a reasonable opportunity to examine thoserecords. However, for such an answer to be sufficient, the party mustspecify the record from which the answers may be derived, and the\”specification shall be in sufficient detail to permit the interrogatingparty to locate and to identify, as readily as can the party served, therecords from which the answer may be ascertained.\” The party requiredto answer \”may not impose on an interrogating party a mass of records asto which research is feasible only for one familiar with the records.\” Notes of Advisory Committee on Rules, Fed. Rules Civ. Proc. Rule 33, 28U.S.C.A. at 322. Instead of giving the Secretary an index that wouldfacilitate his review of the documents, NL hid the relevant materialwithin a vast amount of irrelevant documents so as to make theSecretary’s examination of the documents unmanageable. Measured by therequirement of Rule 33(c), NL’s \”index\” was completely inadequate. NLdid not answer the interrogatories, but simply invited the Secretary toa game of \”blind man’s bluff.\” _See_ _Dollar v. Long Mfg., N.C., Inc_.,561 F.2d 613, 615-17 (5th Cir. 1977)._APPROPRIATENESS OF SANCTIONS_Commission judges have the discretion to impose sanctions on parties whoviolate their orders. _TRG Drilling Corp._, _supra_; _PittsburghForgings Co_., 82 OSAHRC 14\/D13, 10 BNA OSHC 1512, 1982 CCH OSHD ?25,974 (No. 78-1361, 1982); _Wheeling-Pittsburgh Steel Corp_., 4 BNAOSHC 1788, 1976-77 CCH OSHD ? 21,213 (No. 5784, 1976); _WilliamEnterprises_, 79 OSAHRC 24\/A2, 4 BNA OSHC 1663, 1976-77 CCH OSHD ?21,071 (No. 4533, 1976); _Hoerner Waldorf Corp_., _supra_. Rule 37(b)of the Federal Rules of Civil Procedure lists sanctions that may beimposed on a party who fails to comply with a discovery order. Thosesanctions include the rendering of a default judgment against thedisobedient party.[[21]] Such a sanction should only be imposed inextreme circumstances: when the noncomplying party’s conduct has beencontumacious or when the opposing party is prejudiced in the preparationor presentation of its case. _National Hockey League v. MetropolitanHockey Club,_ 427 U.S. 639 (1976) (dismissal of party’s case for failureto answer interrogatories was justified by the flagrant bad faith of theparty); _Noranda Aluminum, Inc._, 80 OSAHRC 128\/B2, 9 BNA OSHC 1187,1981 CCH OSHD ? 25,086 (No. 79-1059, 1980) (dismissal for violation ofdiscovery order inappropriate in absence of contumacious conduct orprejudice to opposing party). If the Commission refuses to imposesanctions when a party’s failure to comply with a discovery order iseither contumacious or acts to prejudice the opposing party, that partywill profit from its own wrongdoing and gain an unfair advantageunrelated to the merits of their case. _See_ _Cine_ _Forty-Second St.Theatre Corp. v. Allied Artists Picture Corp_., 602 F.2d 1062 (2d Cir.1979).If the party’s violation of a discovery order prejudices the opposingparty in the preparation or presentation of its case, the advantagegained is obvious. The advantages that a party can gain by obstructingdiscovery can only be counteracted by subjecting that party to the riskthat its conduct will result in sanctions.[[22]]I have detailed above the respects in which NL’s conduct was dilatoryand in bad faith. Additionally, the record demonstrates that NL’sconduct prejudiced the Secretary’s case.At the time this case arose, NL’s Beech Grove plant was an ongoingoperation. On June 15, 1979, the date by which NL was originallysupposed to answer the interrogatories, the Beech Grove plant was stillin operation. By the time NL filed its \”answers\” to theinterrogatories, the plant was shut down and its records had beenscattered: some remained at Beech Grove, others were at Hightstown, andyet others were \”in transit.\” Giving the Secretary the opportunity toexamine the records only after they had been scattered and intermingledwith all of NL’s corporate records clearly prejudiced the Secretary’sability to reconstruct what had been occurring at Beech Grove.Furthermore, the Secretary was seeking throughout the discovery processto have his expert conduct a discovery inspection of the Beech Groveplant. However, before such an inspection could be meaningfullyconducted, the expert required the blueprints of the plant and certainother information that the Secretary had requested through theinterrogatories. At the time he filed the interrogatories, theSecretary informed NL that he needed this information before thediscovery inspection could be conducted. Although NL purported to bewilling to cooperate with the Secretary in scheduling a discoveryinspection, it did not supply the documentation it knew the Secretaryneeded before the inspection could be conducted. Instead, NL wasplanning to close the plant, and it only agreed with the Secretary toschedule the discovery inspection after the plant was closed. Obviously, a discovery inspection of a plant that was shut down would beuseless.[[23]]_CONCLUSION_The printed record of a case can never convey the entire flavor of theproceedings before a trial judge. For that reason, reviewing tribunalsnecessarily give great deference to those rulings by a trial judge thatare based, at least in part, on observations that the trial judge is ina unique position to make. _See_ _C. Kaufman, Inc_., 78 OSAHRC 3\/C1, 6BNA OSHC 1295, 1297, 1977-78 CCH OSHD ? 22,481 at p. 27,099 (No. 14249,1978) (Commission will normally accept a trial judge’s evaluation of thecredibility of witnesses, \”for it is the Judge who has lived with thecase, heard the witnesses, and observed their demeanor\”); _see__generally_ _Universal Camera Corp. v. NLRB_, 340 U.S. 474 (1951).In this case, the judge lived with the case during the course ofdiscovery. He was in a unique position to evaluate whether NL had, asit alleged, made efforts to comply with his discovery order. The judgeconcluded that NL had not acted in good faith throughout the discoveryprocess and detailed his reasons for reaching this conclusion. I wouldnot reverse him as to the imposition of sanctions.————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] NL closed and subsequently sold this plant to another companyduring the course of this litigation.[[2]] Chelation therapy involves the use of certain drugs, referred toas chelating agents, to remove metallic lead from a person’s bloodstream.[[3]] Section 17(a) of the Act, 29 U.S.C. ? 666(a), provides that apenalty of up to $10,000 may be assessed for willfully or repeatedlyviolating the Act. Section 17(d), 29 U.S.C. ? 666(d), states that apenalty of up to $1000 per day may be assessed if an employer fails toabate a violation within the period permitted for its correction. TheSecretary proposed the maximum permissible statutory penalties of$10,000 for each of the willful or repeat items. For NL’s allegedfailure to abate the 1976 violation of section 1910.1000(e), theSecretary originally proposed a penalty of $1000 per day for the 31 daysbetween the abatement date, August 1, 1978, and the closing date of theinspection, September 1, 1978. At the hearing on these citations,following the judge’s sanctions order against NL, the Secretary moved toamend the failure to abate penalty to include the period from September1, 1978 to October 1, 1979, the date the plant was closed. TheSecretary’s motion proposed a penalty of $1000 per day for thisadditional period as well as for the original 31-day period. Thus, theultimate proposed penalty for the alleged failure to abate totaled$426,000. The judge granted the motion to amend and ultimately assessedthe penalties proposed by the Secretary totaling $536,000: $426,000 forthe failure to abate and $110,000 for the other citations.Because of our disposition, we do not decide whether the judge erred ingranting the Secretary’s motion to amend at this time.[[4]] Commission Rule 37, 29 C.F.R. ? 2200.37, provides that any partyupon whom a motion is served shall have ten days to file a response. OnApril 19, the Secretary served its motion on NL by certified mail. Pursuant to Rule 4(b), 29 C.F.R. ? 2200.4(b), regarding service by mail,NL would have been entitled to an additional three days to file itsresponse.[[5]] In this respect, the Commission’s rules differ from the FederalRules of Civil Procedure, which permit a party to serve interrogatorieson another party without leave of court and favor broad-based pretrialdiscovery. Fed. R. Civ. P. 33(a).[[6]] We do not decide whether the interrogatories were proper. If theSecretary desires further answers to his interrogatories, the judge onremand should rule on the appropriateness of the Secretary’s request. In ruling on issues of this nature, we note that a prehearing conferenceon discovery disputes often provides a mechanism to keep the discoveryprocess within reasonable bounds. _See_ Commission Rule 51, 29 C.F.R. ?2200.51; Fed. R. Civ. P. 26(f).[[7]] Commission Rule 54, 29 C.F.R. ? 2200.54, provides:? 2200.54 _Failure to comply with orders for discovery_.If any party or intervenor fails to comply with an order of theCommission or the Judge to permit discovery in accordancewith the provisions of these rules, the Commission or the Judge mayissue appropriate orders.We do not decide whether the \”appropriate orders\” authorized by thisrule include the type of sanctions order the judge issued in this case. Assuming that the judge has the authority to impose such sanctions inan appropriate case, we conclude that the sanctions were improperlyapplied here.[[8]] The judge who originally decided this case has retired.[[1]] 29 U.S.C. ?? 659(a) and (c).[[2]] 29 U.S.C. ? 657(a).[[3]] 29 U.S.C. ?? 658(a) and 659(b).[[4]] For example, the question arises in toxic substance cases whetherthe measurements of employee exposure the Secretary makes during aninspection are representative of the exposures that normally occur inthe employer’s workplace. _See_ _Duquesne_ _Light Co_., OSHRC DocketNo. 79-1682 (June 29, 1984) (in case where Secretary measured asbestosexposures exceeding the limits of the asbestos standard, the majorityvacated certain items and found others not to be serious in naturebecause the Secretary failed to prove the measured exposures wererepresentative); _Hermitage Concrete Pipe Co_., 82 OSAHRC 14\/A2, 10 BNAOSHC 1517, 1982 CCH OSHD ? 25,975 (No. 4678, 1982) (exposures toexcessive silica dust measured by the Secretary assumed to berepresentative, but employer permitted to rebut presumption). In thiscase, NL’s counsel stated at the preliminary hearing that theSecretary’s inspection had occurred during the \”shakedown period,\” whenthe controls NL had installed to abate the 1976 violation were not yetfully effective. NL was thus contending that the conditions observedduring the inspection, and the measurements of employee exposure thatwere made, did not accurately represent the efforts NL had taken toabate. This assertion is relevant to numerous issues in the case,including whether NL had made a good faith attempt to abate and whetherthe penalties proposed by the Secretary were appropriate. Obviously, inorder to intelligently litigate the case, the Secretary would have toobtain an accurate picture of the lead exposures at Beech Grove and ofNL’s efforts to reduce those exposures over a considerable period oftime. Just as obviously, the Secretary could only obtain thisinformation from NL itself.[[5]] Elevated blood lead levels can cause numerous adverse healtheffects. At sufficiently high levels, death can result. At lowerlevels, a person can suffer irreversible brain damage, kidney failure,or damage to the reproductive system. Less drastic effects includeanemia, loss of appetite, constipation, nausea, insomnia, fine tremors,hyperactivity, and colic. _See_ _United Steelworkers of_ _America v.Marshall_, 647 F.2d 1189, 1248-49 (D.C. Cir. 1980), _cert_. _denied_,453 U.S. 913 (1981).[[6]] Chelation therapy produces such ill effects as anxiety, nausea,hypertension, and anemia, and its routine use to lower elevated bloodlead levels as a substitute for lowering the amount of lead to whichpersons are exposed is unacceptable under modern medical principles. _See_ _United Steelworkers of America v. Marshall_, 647 F.2d at 1237 n. 73.[[7]] The abatement period specified in a contested citation does notbegin to run until the entry of a final Commission order affirming thecitation. 29 U.S.C. ? 659(b).[[8]] NL was first cited by the Secretary in 1973 for failing to usefeasible engineering and administrative controls to reduce the exposureof its employees to lead and for failing to implement an adequateprogram for the use of respirators. It did not contest those citationsand they became final orders of the Commission. In 1976, OSHA againinspected the Beech Grove plant and found that employees were stillexposed to excessive lead. NL was cited for repeatedly failing to usefeasible engineering and administrative controls and for otherviolations arising out of the 1976 inspection, and NL withdrew itsnotice of contest to those citations as part of the settlement agreementapproved by Judge Dixon. Thus, by the time of the inspection that ledto this case, NL already had a substantial history of noncompliance withthe standards regulating employee exposure to excessive lead.[[9]] It is noteworthy that _Marshall v. Barlow’s_ was the only case NLcited in all of its numerous objections to the interrogatories. It isalso noteworthy that, in arguing to the Commission that the judge’sorder requiring it to answer the interrogatories was improper, NL doesnot rely on any of the numerous objections it raised before the judge inopposition to the interrogatories. NL apparently fully realizes thelack of merit in those objections.[[10]] In _West Point Pepperell_, the employer, whose plant was locatedin Georgia, relied on a Georgia statute that established a statephysician-patient privilege. The Commission rejected the argument onthe basis that a privilege arising under state law is inapplicable to aproceeding governed by substantive federal law. However, the issue_West Point Pepperell_ had raised was a serious one, was supported bycitation to authority, and deserved careful consideration. By contrast,NL’s reliance on a nonexistent privilege, unsupported by citation to anyauthority, merited no serious consideration.In _West Point Pepperell_, the employer also objected to producingemployee medical records on the basis that such production would violateits employees’ right to privacy. The Commission held that thisobjection had merit, and that any order requiring production of employeerecords would have to protect the employee’s right to privacy. Onreview, NL relies on this aspect of the Commission’s decision in _WestPoint Pepperell_ in arguing that the judge’s unqualified order requiringdisclosure of medical records was erroneous. However, NL never raisedthe right to privacy issue before the judge, only the physician-patientprivilege issue. The judge cannot be found to have abused hisdiscretion for failing to rule on an objection that NL did not makebefore him.[[11]] NL’s motion for an extension of time to answer theinterrogatories asserted that \”papers submitted in support of NL’sobjections to the interrogatories detail the magnitude (sic), breath(sic), and burdenness (sic) of the task entailed.\” In fact, NLsubmitted no papers with its objections detailing these factors; NLsimply asserted without elaboration that the interrogatories wereburdensome.[[12]] The Act provides that, unless the Commission has adopted adifferent rule, its proceedings shall be in accordance with the FederalRules of Civil Procedure. 29 U.S.C. ? 661(f). The Federal Rules ofCivil Procedure contain comprehensive rules governing discovery. Thoserules basically provide for discovery to be conducted extrajudicially inthe absence of a dispute between the parties. _See_ _Forte Brothers,Inc_., 80 OSAHRC 111\/E7, 9 BNA OSHC 1065, 1980 CCH OSHD ? 24,909 (No.79-5655, 1980). The Commission’s procedural rules contain limited, butnot comprehensive rules on discovery. The Commission has longrecognized that discovery in our proceedings is governed by the FederalRules of Civil Procedure to the extent it is not governed by specificCommission rules. _Reynolds Metals Co_., 78 OSAHRC 51\/F1, 3 BNA OSHC1749, 1975-76 CCH OSHD ? 20,214 (No. 4385, 1975).[[13]] Rule 53(b) provides: \”In the event the Commission or the Judgegrants an application for the conduct of [discovery depositions orinterrogatories], the order granting the same shall set forthappropriate time limits governing the discovery.\”[[14]] On review, NL contends that the sanctions order was improperbecause the Secretary never made a motion to compel answers pursuant toRule 37(a) of the Federal Rules of Civil Procedure. This argument isfrivolous. The Secretary did move to compel answers, and NL neverargued to the judge that his order compelling answers was not issued inresponse to a proper motion. Moreover, as discussed above, the partiesunderstood that the Secretary would file interrogatories, NL would fileobjections, and the judge would then rule on whether to permit theinterrogatories.[[15]] If a party is certain of the merits of its argument and isconfident it will ultimately prevail, its failure to comply with adiscovery order is not an indication of bad faith. _See_ _Newport NewsShipbuilding & Drydock Co_., 80 OSAHRC 119\/A2, 9 BNA OSHC 1085, 1980 CCHOSHD ? 24,003 (No. 76-171, 1980). But a party who fails to comply mustbe prepared to accept the consequences of its noncompliance if itsarguments do not ultimately prevail.[[16]] The majority criticizes the judge for failing to evaluate theadequacy of the initial answers NL had submitted to the interrogatoriesto which it had not objected. Whether those answers were adequate isnot and never was an issue in the case. The judge’s order required NLto answer all of the interrogatories, and NL could not comply bysubmitting a few documents of its own selection. Moreover, not even NLhas argued that its initial answers to certain interrogatories bear inany way on the adequacy of the answers it later submitted to theremaining interrogatories.[[17]] At the time the parties entered into this agreement, theSecretary was not aware that the plant had either already been closed orthat its closure was imminent. NL’s agreement to allow the Secretary toconduct a discovery inspection of a plant it knew would be closed whenthe inspection was to be conducted is representative of NL’s litigationtactics in this case.[[18]] When it filed its \”answers\” to the interrogatories, NL statedthat it would make all of the records referenced therein available forthe Secretary’s inspection. At the same time, NL asserted that certainof the plants that contained referenced documents had been sold and weretherefore no longer under NL’s possession or control. NL did not statehow it would make documents which were not in its possession or controlavailable for the Secretary to inspect.[[19]] NL’s argument in its brief on review that the interrogatoriesrequested material such as EEO (equal employment opportunity) complaintsis frivolous. The interrogatories plainly requested only informationpertaining to lead.[[20]] The lists were primarily prepared by Ms. Dollar, but not all thelists are in the same handwriting. Ms. Dollar explained that some ofthe information had been provided her by people at the different plants.[[21]] Commission Rule 54, 29 C.F.R. ? 2200.54, provides: \”If any partyor intervenor fails to comply with an order of the Commission or theJudge to permit discovery in accordance with provisions of these rules,the Commission or the Judge may issue appropriate orders.\” Because theCommission has a specific rule governing sanctions for failure to complywith discovery orders, Rule 37(b) does not directly apply. Indeed,because Rule 37(b) includes the authority to hold a disobedient party incontempt of court, that rule cannot apply directly to Commissionproceedings, for the Commission lacks contempt power. Nevertheless, thesanctions listed in Rule 37(b) that are within the Commission’sauthority to impose, including a default judgment, are obviously thetype of sanctions Commission Rule 54 contemplates.[[22]] Sanctions also serve the purpose of deterring other parties fromengaging in similar conduct in the future. _National Hockey_ _League v.Metropolitan Hockey Club_, 427 U.S. at 643.[[23]] NL has contended throughout these proceedings that it installedall of the controls required by Judge Dixon’s order approving thesettlement of the 1976 citations. NL has also contended that the 1978inspection occurred during the \”shakedown period\” when these controlswere not yet fully effective. See _supra_ note 4. The Secretary’sinability to conduct a meaningful discovery inspection would obviouslyprejudice his ability to rebut these contentions.”