“Docket No. 78-5204 SECRETARY OF LABOR,Complainant,v.NL INDUSTRIES, INC.,Respondent.UNITED STEELWORKERS OF AMERICA,AFL-CIO-CLC AND LOCAL 5554-J,Authorized Employee Representative.OSHRC Docket No. 78-5204DECISIONBefore:\u00a0 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 Occupational Safety and Health Actof 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration.\u00a0 It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor under the Act and has no regulatoryfunctions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).The Secretary of Labor cited NL Industries for allegedly failing to abate aviolation of an OSHA standard regulating employee exposure to airborne lead and forallegedly committing other willful, repeated, and serious violations of the Act.\u00a0 Anadministrative law judge affirmed all of the Secretary’s charges and assessed penaltiestotaling $536,000.\u00a0 The judge’s order was issued following a truncated hearing atwhich, as a sanction for failing to comply with a discovery order, he precluded NL fromoffering any defense. We conclude that the judge abused his discretion in his handling ofthe Secretary’s request for discovery and in his ultimate order sanctioning NL.\u00a0 Wetherefore set aside his sanctions order and decision and remand for further proceedings.I At the times relevant to this case, NL operated a secondary lead smelting plant in BeechGrove, Indiana.[[1]]\u00a0 In 1976, following an inspection of the plant, the Secretaryissued to NL citations alleging various violations relating to exposure of employees tolead. One citation alleged that NL violated 29 C.F.R. ? 1910.1000(e) by failing to employfeasible engineering and administrative controls to reduce the lead exposure of employeesin certain job categories to permissible limits.\u00a0 Following NL’s contest of thecitations, the Secretary and NL agreed that NL would abate the violation of section1910.1000(e) by installing certain specific engineering controls.\u00a0 On January 31,1978, an administrative law judge approved the settlement agreement.\u00a0 The agreement,which the judge’s order incorporated, specified a final abatement date of August 1, 1978,for the installation of the engineering controls.The Secretary again inspected NL’s Beech Grove plant between August 23 andSeptember 1, 1978.\u00a0 On October 25, 1978, the Secretary issued to NL a notification offailure to abate the violation of section 1910.1000(e) for the period August 1 toSeptember 1, 1978.\u00a0 At the same time, the Secretary issued two other citationscontaining thirteen items.\u00a0 The Secretary subsequently consolidated two of theseitems and withdrew one, leaving the following eleven items at issue:\u00a0 five itemsalleging willful-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 dutyclause of the Act, alleging deficiencies in the manner in which NL’s employees receivedchelation therapy;[[2]] two willful-serious items alleging violations of the sanitationstandard at 29 C.F.R. ? 1910.141; and one repeat-willful-serious item alleging thatemployees in job categories not mentioned in the 1976 citation were overexposed toairborne lead.\u00a0 The Secretary proposed penalties totaling $141,000.[[3]]IINL contested these citations and proposed penalties.\u00a0 On March 20, 1979, theSecretary filed a series of interrogatories in the case together with a request forproduction of documents and a motion for entry on land.\u00a0 A brief description of theprincipal interrogatories will illustrate the breadth of the Secretary’s discoveryrequest.Interrogatory 1 asked for detailed information identifying every employee who worked inthe Beech Grove plant, from 1973 to the present, in the job categories listed in both the1976 and 1978 citations and for detailed information concerning the work assignments foreach employee.\u00a0 All records of airborne lead sampling for each such employee wererequested, as well as records of all medical examinations given such employees.\u00a0 TheSecretary asked for identification of all employees who had received chelation therapy andfor detailed information concerning any such treatment.Interrogatory 4 asked for identification and copies of all studies, surveys, or testsconducted or caused to be conducted by NL for the purpose of abatement or control of leadexposure, and interrogatory 5 asked for all corrective action NL had taken pursuant tosuch studies for the periods prior to August 21, 1978, and after October 23, 1978. \u00a0Interrogatory 8 asked NL to identify all administrative or engineering controls to reduceairborne lead concentrations that the company believed were not economically ortechnologically feasible in its workplace 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 control that performed leadsmelting activities similar to those performed at its Beech Grove plant and to attach allrecords \”relating to employee exposure to lead and\/or to the use of chelating agentson lead exposed employees.\”Interrogatory 14 asked NL to produce all layouts, blueprints, and\/or relatedrecords or documents \”which in any way relate to or depict\” NL’s Beech Groveworkplace including, but not limited to, the areas referred to in the citations.\u00a0This interrogatory also requested NL to produce a large variety of documentspertaining to employee exposure to lead and abatement of such exposure and to use ofpersonal protective equipment and chelating drugs.\u00a0 The documents sought by theSecretary included such categories of material as medical records and employee medicaldata, grievances and employee complaints, and trade publications and similar documents.\u00a0NL also was asked for all documents from 1973 to the present concerning medicalservices performed for any employee based on lead exposure, for all policy statements orsimilar material \”which in any way relate to or discuss\” the use of chelatingagents, and for all photographs and records including employee sampling data taken by orfor NL 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 the Secretary was notrelevant and not reasonably calculated to lead to the discovery of admissible evidence,that certain of the requests, particularly the requests for production of documents, wereoverly burdensome and overbroad, and that the employee medical records the Secretarysought were privileged.\u00a0 On April 23, the judge received the Secretary’s response toNL’s objections, in which the Secretary moved for an order compelling NL to answer.\u00a0The next day, before NL had an opportunity to respond to the motion to compel,[[4]]and without ruling on any of the objections NL had previously raised, the judge issued anorder requiring NL to answer all interrogatories by June 15.\u00a0 On May 1, NL filed atimely response to the Secretary’s motion to compel together with responses to theinterrogatories to which it had not objected.\u00a0 There is no indication that the judgereconsidered his order compelling answers in light of NL’s response.On May 2, NL filed with the Commission a request for special permission toappeal the judge’s order compelling answers.\u00a0 On June 4, NL filed with the judge amotion for a stay of the proceedings pending the Commission’s ruling on its motion forspecial permission to appeal.\u00a0 The judge denied this motion on June 7.\u00a0 On June15, NL moved for an extension of time to August 15 to answer the interrogatories.\u00a0The judge did 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 failing to comply with thejudge’s discovery order.\u00a0 On July 9, the judge set a hearing for July 20, at which NLwould be required to show cause why it should not be sanctioned.\u00a0 However, on July 5,the Commission issued an order, which the judge did not receive until after July 9,staying proceedings in the case pending its ruling on NL’s request for special permissionto appeal. Thus, the order issued by the judge on July 9 was nullified.\u00a0 On September6, the Commission issued an order denying NL’s request for special permission to appealand dissolving the stay.\u00a0 On September 24, the judge rescheduled the show causehearing for October 25 and ordered NL to comply with his April 24 order compellinganswers.\u00a0 He required NL to answer by October 20.On October 16, the Secretary’s counsel sent a letter to NL’s counsel confirming anagreement they had reached concerning the discovery schedule.\u00a0 They agreed that NLwould submit further answers to the Secretary’s interrogatories and that the documentsrequired to be produced by the interrogatories could be inspected by the Secretary’scounsel at Hightstown, New Jersey, where NL’s Metals Division headquarters was located.\u00a0This inspection was to take place the week of November 5.\u00a0 On October 19, NLfiled its response to the interrogatories, consisting of amended and supplemental answersand an index listing the content of boxes and drawers of documents that NL would makeavailable for the Secretary to inspect.\u00a0 The index listed the types of documents tobe found in each box or drawer.At the show cause hearing on October 25, the Secretary argued that NL’s response wasinsufficient.\u00a0 His main objective was that the index supplied by NL did not specifyin which boxes of drawers of documents could be found the answer to each specificinterrogatory.\u00a0 Immediately upon hearing the objection, counsel for NL offered toidentify the specific box or boxes of documents to which each interrogatory referred.\u00a0The judge ruled, however, that NL had already had sufficient time to provideadequate answers and he therefore refused to afford NL the opportunity to meet theSecretary’s objection.Having ruled that NL’s response was inadequate, the judge announced that he would imposesevere sanctions on the company.\u00a0 On November 15, 1979, he entered the followingsanctions order requested by the Secretary:\u00a0 (1) NL’s answer and affirmative defenseswere stricken; (2) a default judgment on liability was entered against NL; (3) a hearingwould be held at which the Secretary’s burden would consist only of proving the willful,repeated, serious, and failure to abate characterizations of the charges; and (4) NL couldnot offer testimony or evidence of its own at the hearing, but could only introduceevidence through cross-examination of the Secretary’s witnesses.\u00a0 As noted above,following the hearing the judge affirmed all of the Secretary’s charges and assessed theamended 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, discovery depositions ofparties, intervenors, or witnesses, and interrogatories directed to parties, intervenors,or witnesses shall not be allowed.Thus, discovery by interrogatories and depositions in Commission proceedings is not amatter of right.\u00a0 A party seeking such discovery must apply to the judge, and thejudge must exercise his sound discretion in ruling on the application.[[5]] The judge’s exercise of discretion should be guided by the objective of providing a fairand prompt hearing to the parties.\u00a0 Before ruling on a discovery request, the judgeshould carefully inquire into the extent to which the party seeking discovery needs theinformation sought, any undue burden to the party from whom the discovery is sought, and,on balance, any undue delay in the proceedings which may occur.\u00a0 KLI, Inc., 77OSAHRC 202\/A2, 6 BNA OSHC 1097, 1098, 1977-78 CCH OSHD ? 22,350 at p. 26,937 (No. 13490,1977).\u00a0 Permitting the discovery of vast amounts of marginally relevant material willserve only to delay a case and to unduly burden the party from whom discovery is sought.\u00a0A judge should therefore look with disfavor on broad, open-ended discovery requests.The judge failed to conduct the necessary inquiry in this case.\u00a0 NL is a largecompany, with numerous plants engaged in lead smelting.\u00a0 The Secretary’sinterrogatories in effect asked NL to supply all information in its possession concerningemployee lead exposures at all of these plants.\u00a0 Given the nature and extent of NL’sbusiness and the broad, unrestricted nature of the interrogatories, it is apparent that NLwould have to review and provide a vast amount of documentation to comply with the judge’sorder.The record contains no indication that the judge balanced the need for theSecretary to obtain discovery against the burden the Secretary’s request imposed on NL.\u00a0The judge failed to address NL’s arguments opposing the Secretary’s discoveryrequest, and he issued his order compelling NL to answer only one day after he receivedthe Secretary’s motion for such an order and without waiting the period of time permittedby the Commission’s rules for NL to file a response to the motion.\u00a0 Given theextensive nature of the interrogatories and NL’s objections, which includedphysician-patient privilege, relevance, improper shifting of the burden of proof, andburdensomeness, it was incumbent upon the judge to carefully weigh the parties’ arguments.\u00a0Neither the record nor the judge’s order disposing of NL’s objections, stating theobjections were \”Denied,\” indicates this was done.[[6]]Furthermore, the judge did not acknowledge the fact that NL did file initialanswers to those interrogatories to which it had not objected, nor does the recordindicate that the judge made any attempt to evaluate the adequacy of those answers.\u00a0Moreover, NL subsequently agreed to make additional information available to theSecretary and by the time of the sanctions hearing on October 25, the Secretary had agreedto examine the documentation at NL’s Hightstown, New Jersey, facility during the week ofNovember 5.\u00a0 Until the Secretary conducted this examination, the judge had no basison which to conclude that NL had not in fact made the requested documentation available tothe Secretary.[[7]]\u00a0 At the sanctions hearing, the Secretary objected that the indexsupplied by NL was not sufficiently detailed, but NL agreed to provide a more detailedindex and should have been afforded the opportunity to do so before the scheduledexamination 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’s broad discoveryrequest was incompatible with this objective.\u00a0 He also appeared to believe that thecase could properly be expedited simply by establishing and adhering to an unrealisticallyshort time limit for NL to answer the interrogatories.\u00a0 We cannot condone a course ofaction that places the burden of expedition entirely on one party.Accordingly, the judge’s sanctions order and decision are set aside and thecase is remanded to the Chief Judge[[8]] for further proceedings, consistent with thisdecision.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED:\u00a0 JUL 20 1984 \u00a0CLEARY, Commissioner, dissenting:NL’s litigation strategy of delay and obstruction in discovery is sharply atodds with the Commission’s mandate to conduct speedy adjudication of cases brought beforeit.\u00a0 Atlas Roofing Co. V. OSHRC, 430 U.S. 442 (1977).\u00a0 A statute that hasbeen construed to consider trial by jury as inconsistent with this mandate can hardly beread fairly to permit discovery abuse inhibiting prompt adjudication.\u00a0 NL’s failureto make a good faith effort to comply with the administrative law judge’s lawful discoveryorder justified sanctions.\u00a0 Accordingly, I dissent from the majority’s decision toset aside the sanctions order. THE PURPOSE OF DISCOVERYBefore examining NL’s conduct in the discovery stage of these proceedings, it is useful toexamine the role that discovery plays in Commission proceedings. A case before the Commission is initiated by the issuance of a citation or notification offailure to abate by the Secretary and the filing of a timely notice of contest by theemployer.[[1]]\u00a0 Most often, the citation or notification of failure to abate isissued after a physical inspection of the employer’s workplace by the Secretary’srepresentative.[[2]]\u00a0 If, during such an inspection, the Secretary obtainsinformation that leads him to believe the employer violated the Act or failed to timelyabate an earlier violation, the Secretary is authorized to issue a citation ornotification 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 than a belief that theemployer violated the Act; he must be prepared to prove the violation by a preponderanceof the evidence.\u00a0 Olin Construction Co. v. OSHRC, 525 F.2d 464 (2d Cir. 1975);Astra Pharmaceutical Products, 81 OSAHRC 79\/D9, 9 BNA OSHC 2126, 2129, 1981 CCHOSHD ? 25,578 at p. 31,899 (No. 78-6247, 1981), aff’d, 681 F.2d 69 (1st Cir.1982).\u00a0 In a case such as this, involving numerous complex issues arising understandards regulating employee exposure to a toxic substance, that burden is a heavy one.\u00a0The information gathered by the Secretary during a relatively brief inspection willnecessarily not be as complete as the information the employer has in its possessionregarding its continuing operations.[[4]]\u00a0 Thus, while the Secretary may havesufficient evidence to issue a citation, he may need to obtain information that theemployer possesses in order to sustain his burden of proof.\u00a0 He may also need thatinformation to be in a position to rebut evidence that the employer introduces.Discovery, however, is not simply a tool to enable the Secretary to gatherinformation adverse to an employer.\u00a0 The employer can also use discovery to learn theevidence on which the Secretary bases his charges so as to be better able to present itsdefense.\u00a0 The ultimate goal of a Commission proceeding is to resolve as accurately aspossible the Secretary’s charges, whether that resolution is favorable or unfavorable tothe employer.\u00a0 By giving all parties access to all potentially relevant information,discovery tends to assure that the Commission’s decision will be the correct one.\u00a0 Byenabling all parties to know the information in the possession of the other parties priorto the hearing, discovery minimizes the advantage a party may gain by presenting surprisetestimony. Discovery also tends to facilitate settlements by enabling parties to evaluatethe relative strength and merits of their case before the hearing.\u00a0 These benefits ofdiscovery, of course, are not unique to Commission proceedings, but provide the basis forthe liberal discovery provisions of the Federal Rules of Civil Procedure.\u00a0 SeeHickman v. Taylor, 329 U.S. 495, 507 (1947).One of the few documents that NL did provide in response to the Secretary’sinterrogatories illustrates the potential value of discovery.\u00a0 That document is aninternal memorandum, dated October 12, 1978, from J.W. Roper, NL’s corporate safetydirector, to H.J. Heinkele of NL’s Metal Division.\u00a0 The memo states:CONFIDENTIALEnclosed is a letter from Dr. Lerner which discusses chelation. Generally speaking, the problem which surfaced in Beech Grove is prevalent in otherplants, namely, Cleveland, Dallas and to some extent Pedricktown.\u00a0 Too many peoplehave been chelated, put back into the work area and their blood leads allowed to riseagain.We all recognize that elevated blood levels are caused by many factors; but I believe thelack of enforcement of the proper wearing of respirators, enforcement of hygiene rules andthe lack of supervisors to enforce good work habits are the primary causes.\u00a0 How elsecan we explain 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 \”BeechGrove\” episodes in the future. OSHA presently is clamoring for the Medical Records of 26 of our Beech Grove employees.\u00a0 I do not know what those records contain, but I am willing to wager the contentswill not improve NL’s image if revealed.The Division must stress the importance of this and extract objectives on thereduction of blood lead levels from each plant manager.This memorandum contains a number of potential implications for this case.\u00a0First, it indicates that NL employees possess elevated blood lead levels,[[5]] thatNL is extensively employing chelation therapy to reduce those levels,[[6]] and that atcertain plants, including Beech Grove, NL has not been adequately enforcing proper wearingof respirators and hygiene rules.\u00a0 These are all directly relevant to the chargesmade in the Secretary’s citations.\u00a0 Moreover, the memorandum states that blood leadlevels vary considerably from one NL plant to another, and suggests that the Beech Groveplant is considerably worse than others.\u00a0 This indicates that NL has been able toreduce lead exposure at other plants and is therefore indicative that it would be feasibleto reduce the lead levels at Beech Grove.\u00a0 It also suggests that an examination ofNL’s experience with lead exposures and controls at other plants will shed useful light onvarious issues in this case, particularly the allegation that certain violations werewillful.\u00a0 Finally, the statement that employee medical records from Beech Grove\”will not improve NL’s image if revealed,\” demonstrates both the existence ofsuch records and that the records are likely to be damaging to NL’s position in the case.NL’S OBJECTIONSThe judge convened a preliminary hearing on February 20, 1979, to discuss, among otherthings, a schedule for discovery.\u00a0 Both the Secretary and NL stated that they wishedto obtain discovery through interrogatories, and the judge gave his approval for theparties to do so, subject to objections to specific interrogatories by the party from whomdiscovery was sought.\u00a0 The judge stated that he expected the parties to cooperate inexchanging information, noting that the case involved serious charges that should bedisposed of expeditiously so that NL would be exonerated if the charges were not true, andemployees would be protected if the charges were true.[[7]]\u00a0 The judge furtherstressed that he expected all parties to comply with the prehearing order he hadpreviously issued which stated, among other things, that parties who failed to comply withthe judge’s orders would be subject to sanctions, including potential dismissal of theircase.\u00a0 The judge referred to Hoerner Waldorf Corp., 76 OSAHRC 135\/D12, 4 BNAOSHC 1836, 1976-77 CCH OSHD ? 21,215 (No. 12713, 1976), in which the Commission affirmeda decision by the judge to dismiss the Secretary’s charges because the Secretary hadfailed to comply with the judge’s order to exchange witness lists prior to trial.The Secretary submitted his interrogatories on March 20, 1979, and NL filed its objectionson April 12.\u00a0 The majority discusses the interrogatories in some detail, but it onlybriefly states the nature of NL’s objections.\u00a0 The majority then faults the judge fornot carefully weighing NL’s objections, implying that the judge acted summarily andwithout giving adequate consideration to possibly meritorious arguments.\u00a0 However,when one examines NL’s objections, it becomes clear that those objections are so lackingin merit as to be frivolous, and that the judge acted properly in summarily rejectingthem.The interrogatories sought certain information going back to 1973, the year the BeechGrove plant was first inspected by OSHA.[[8]]\u00a0 One of NL’s principal objections wasthat all information prior to the inspection that began on August 21, 1978, was irrelevantto this proceeding because all prior disputes between the parties had been settled byJudge Dixon’s order in September, 1977, approving the settlement of the 1976 leadcitations.\u00a0 However, the alleged violations and penalty proposals in this case placein issue NL’s entire course of conduct under the Act with respect to its employees’exposure to lead.\u00a0 See supra note 4.\u00a0 Moreover, although it argued to thejudge that everything that transpired before August 21, 1978 was irrelevant to theseproceedings, on review NL laments that the sanctions order precluded it from demonstratingits good faith by introducing evidence concerning its abatement activities between 1973and 1976.\u00a0 That NL itself recognizes the obvious relevance of its activities prior toAugust 21, 1978, is the best illustration of the lack of merit in its objection.Several of NL’s other objections were directed at the request it produce records ofmedical examinations given to employees.\u00a0 NL asserted that such records can only beobtained by search warrant or administrative subpoena, not through discovery.\u00a0 Asauthority for this proposition, NL cited Marshall v. Barlow’s, Inc., 436 U.S. 307(1978).\u00a0 In Barlow’s, the Supreme Court held that the Act was unconstitutionalto the extent it purported to authorize nonconsensual, warrantless searches of workplaces.\u00a0The case is not even remotely relevant to a party’s right to obtain documentsthrough discovery in a case under litigation, and NL’s reliance on the case is typical ofthe lack of any sound basis underlying 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.\”\u00a0 A valid claim ofprivilege will, of course, preclude discovery.\u00a0 Fed. R. Civ. P. 26(b)(1). \u00a0However, as even cursory legal research would have shown, there is no common lawphysician-patient privilege, and no such privilege has ever been recognized by the federalcourts.\u00a0 West Point Pepperell, Inc., 81 OSAHRC 47\/A2, 9 BNA OSHC 1784, 1793,1981 CCH OSHD ? 25,356 at p. 31,487 (No. 77-4297, 1981).\u00a0 It is not surprising thatNL cited no authority to support this claim of privilege.[[10]]The majority finds that the judge did not give adequate consideration to theburden the Secretary’s discovery request imposed on NL.\u00a0 However, NL’s\”burdensomeness\” objection was patently insufficient to raise an issue thatrequired serious consideration. Most, if not all, of the Secretary’s interrogatorieseither asked for NL to produce certain business records or asked for information thatcould be gathered from its business records.\u00a0 Furthermore, most of theinterrogatories sought information only about the Beech Grove plant, a relatively smallfacility with approximately 50 employees.\u00a0 As the majority notes, NL is a largecompany, among the largest in the country.\u00a0 Presumably, it maintained its businessrecords in some sort of orderly manner.\u00a0 If this was not the case, NL’s objectionsshould have indicated the condition of its records and why the interrogatories would beunduly burdensome.\u00a0 But NL’s unsupported assertion that production would be\”burdensome\” gave the judge no basis to deny discovery of unquestionablyrelevant material.[[11]]\u00a0 See Burns v. Thiokol Chemical Corp., 483 F.2d300, 307 (5th Cir. 1973); Martin v. Easton Publishing Co., 85 F.R.D. 312 (E.D. Pa.1980); In Re Folding Carton Antitrust Litigation, 83 F.R.D. 260 (N.D.Ill., 1979); Moore’s Federal Practice, ? 33.27 (2d ed., 1970).Moreover, any burden on a party called upon to retrieve information from business recordsis greatly alleviated by the procedure permitted by Rule 33(c) of the Federal Rules ofCivil Procedure, which provides:Rule 33. Interrogatories to Parties* * *(c) Option To Produce Business Records.\u00a0 Where the answer to an interrogatorymay be derived or ascertained from the business records of the party upon whom theinterrogatory has been served or from an examination, audit or inspection of such businessrecords, including a compilation, abstract or summary thereof, and the burden of derivingor ascertaining the answer is substantially the same for the party serving theinterrogatory as for the party served, it is a sufficient answer to such interrogatory tospecify the records from which the answer may be derived or ascertained and to afford tothe party serving the interrogatory reasonable opportunity to examine, audit or inspectsuch records and to make copies, compilations, abstracts or summaries.\u00a0 Aspecification shall be in sufficient detail to permit the interrogating party to locateand to identify, as readily as can the party served, the records from which the answermust be ascertained.Thus, in order to answer those interrogatories that required production ofeither business records or information that the Secretary could have gleaned from therecords as easily as NL, all NL had to do was specify the records containing the answersand offer the Secretary a reasonable opportunity to examine the records.\u00a0 As eventsshowed, the Secretary was fully agreeable to such a procedure, and was willing to travelto NL’s Metal Division headquarters in Hightstown, New Jersey to examine the documents.Indeed, it was in reliance on Rule 33(c) that NL claimed it complied with the judge’sorder by supplying an \”index\” to documents that purportedly contained theinformation sought by the Secretary.\u00a0 I will have more to say about that\”index\” later.\u00a0 For now, it is enough to observe that NL’s objection, andthe majority’s agreement, that answering the interrogatories would be unduly burdensome isunsupported by the record and ignores the fact that any burden to NL could have beenlargely alleviated by following the procedure provided in Rule 33(c).\u00a0 See Burnsv. Thiokol Chemical Corp., 483 F.2d at 307.One more objection by NL is worth mentioning.\u00a0 In its answer, NL deniedthat engineering or administrative controls to reduce lead exposure were technologicallyor economically feasible.\u00a0 Interrogatory 7 essentially asked NL if it continued tomaintain this position.\u00a0 If NL answered Interrogatory 7 in the affirmative, thenInterrogatory 8 asked for information concerning specific controls NL believed wereinfeasible and for 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 possible controlswhich have not been utilized.\u00a0 This inquiry attempts an improper shift of the burdenstatutorily imposed upon OSHA to demonstrate the feasibility of specific controls.\u00a0NL’s judgment or speculation as to what engineering controls may not befeasible has no bearing on OSHA’s independent duty to assess and prove what engineeringcontrols are feasible.\u00a0 Moreover, NL cannot reasonably be expected to identifycontrols which are believed to be \”not technologically or economicallyfeasible.\”\u00a0 This requires NL to speculate regarding future inventions which havenot yet been made, or regarding processes which have never been applied to NL’s business.As with NL’s other objections, this one is lacking in merit.\u00a0 The firstpart of the objection — that the request improperly shifts the Secretary’s burden ofproof — ignores one of the basic purposes of discovery:\u00a0 that the party with theburden of proof may need to obtain information from the opposing party to satisfy thatburden. \u00a0It also ignores the fact that NL raised infeasibility as a defense, and aparty is obviously entitled to use discovery to learn the factual basis of its opponent’sdefenses.The latter part of the objection is an attempt to give the objectionrespectability by misstating what the interrogatory asks.\u00a0 The interrogatory in nosense asks NL to speculate on future inventions; it asks NL to identify controls it hasconcluded are not feasible. If NL has done studies and has drawn conclusions that certaincontrols are not feasible, it need only identify those controls.\u00a0 If it has not donesuch studies, it need only give that information.NL raised other objections to certain of the interrogatories, but no purposewould be served by an elaborate examination of all its objections; all the otherobjections are similarly lacking in merit.\u00a0 See supra note 9.\u00a0 But thisrather understates the point.\u00a0 When one examines NL’s objections in their entirety, apattern emerges; not only are the objections not meritorious, but they lack any factual orlegal support to the point that I conclude they could not have been made with theexpectation that the judge would rule favorably on them.THE JUDGE’S EXERCISE OF DISCRETIONThere are two fundamental questions this case presents in its current posture:\u00a0 (1)Did the judge abuse his discretion in ordering NL to answer the Secretary’sinterrogatories; and (2) If the judge did not abuse his discretion, were NL’s answersadequate.\u00a0 In view of the majority decision I do not reach the question whether thesanctions the judge imposed on NL were appropriate in their entirety.As to the first question, the judge’s order was well within his discretion.[[12]]\u00a0The judge was required to balance the Secretary’s need for discovery, the burden toNL, and any delay in the proceedings discovery would create.\u00a0 KLI, Inc., 77OSAHRC 202\/A2, 6 BNA OSHC 1097, 1977-78 CCH OSHD ? 22,350 (No. 13490, 1977).\u00a0 Theinterrogatories unquestionably sought relevant information, and the Secretary’s need fordiscovery, in light of the nature of the issues presented, was obvious.\u00a0 NL raised nocolorable argument that production would be unduly burdensome and, as noted above, theprocedure provided in Rule 33(c) would have reduced much of the work NL might have beenrequired to do to comply.\u00a0 The judge also recognized that the nature of the caserequired that any unnecessary delay be avoided.\u00a0 That the judge chose to attempt toavoid delay by requiring the parties to comply with reasonable time limits is hardly anabuse of discretion; it is in fact required by Commission Rule 53(b).[[13]]The majority concludes that the judge erred in permitting the interrogatoriesover NL’s objections.\u00a0 In the majority’s view, a judge should look with disfavor on\”broad, open-ended\” discovery requests and should keep the discovery processwithin reasonable bounds.\u00a0 While I agree that the judge should keep control of thediscovery process, he must do so with the objectives of discovery in mind.Discovery often requires a litigant to disclose to the opposition informationthat can be adverse, even devastating, to its position in the litigation.\u00a0 Obviously,no litigant enjoys doing this, and a party can be expected to avoid disclosing damaginginformation if there is any legitimate way to do so.\u00a0 Thus, discovery requests mustbe framed in a manner that does not let the party from whom discovery is soughtselectively decide what to turn over and what to withhold.\u00a0 See Rozier v.Ford Motor Co., 573 F.2d 1332, 1346 (5th Cir. 1978).\u00a0 If a party frames hisdiscovery requests narrowly, he runs the risk that the opposing party can literally complywith the request while withholding particularly damaging information.\u00a0 Thus, by theirnature, discovery requests must be broadly framed. The Secretary’s interrogatories, whilebroad, sought information that was unquestionably relevant to this case.\u00a0 In theabsence of any objections of colorable merit, the judge did not abuse his discretion ingranting the request in full. The majority also faults the judge for ruling on the Secretary’s motion to compel answerswithout giving NL ten days to respond to the motion.\u00a0 The majority ignores the factthat the judge acted pursuant to a procedure to which all parties, including NL, hadagreed.\u00a0 At the preliminary hearing, it was agreed that the Secretary would fileinterrogatories, that NL would file its objections, and that the judge would then rule onthe objections.\u00a0 After the Secretary filed the interrogatories, NL’s counsel sent thejudge a telegram informing him that the objections would be filed shortly and asking himnot to rule until he received the objections, demonstrating NL’s understanding that theinterrogatories themselves were the motion to compel.\u00a0 After NL filed its objections,the Secretary responded to the objections, explaining why the interrogatories were proper.\u00a0In the same document, the Secretary made a formal motion to compel answers.\u00a0However, since it was understood that the objections NL had previously filed were infact its response to the motion to compel, the judge was justified in ruling on theinterrogatories before the ten-day response period to the formal motion had elapsed.\u00a0Moreover, NL’s response to the formal motion simply reiterated the same objectionsit had previously raised, and so gave the judge no reason to reconsider his ruling.[[14]]Finally, the majority faults the judge for not addressing and carefullyweighing NL’s arguments.\u00a0 But this completely overlooks the fact that the judge helda hearing on October 25, 1979, for the explicit purpose of determining whether NL hadcomplied with discovery.\u00a0 NL was present and had every opportunity to renew itsobjections to discovery requests and to argue against sanctions. NL produced witnesses whohad purportedly attempted to compile information to respond to discovery.\u00a0 Certainlythe judge did weigh NL’s arguments for in his decision in this case he extensivelydocumented instances where he found NL had acted in bad faith in responding to requestsfor discovery.\u00a0 There is no requirement that a judge issue a written decision onpreliminary procedural matters.\u00a0 The Act requires only that the judge issue a reportof the \”final disposition of the proceedings.\”\u00a0 29 U.S.C. ? 661(i).NL’S FAILURE TO COMPLY WITH THE JUDGE’S ORDERNL never made any good faith attempt to comply with the judge’s order requiring answers tothe interrogatories.[[15]]\u00a0 The judge’s order, issued on April 24, gave NL until June15 to answer.\u00a0 On June 15, NL submitted a motion for an extension of time to August15, saying:\u00a0 \”Despite the diligent efforts of both counsel and employees of NL,the huge amount of work required in order to answer the remaining interrogatories has notyet been completed. . . .\”The majority states that the judge did not rule on NL’s motion for anextension.\u00a0 But that is true only in form, not in substance.\u00a0 The judge did nothold NL to the June 15 date for submitting answers, but ultimately extended the date toOctober 20, more than four months later.\u00a0 During two of those months, the proceedingswere stayed by order of the Commission but, even discounting those two months, NL was still given the two additional months it sought.At a meeting on October 11, the Secretary and NL reached an agreement as toNL’s obligations under the judge’s order.[[16]]\u00a0 The agreement was recorded in aletter from the Secretary’s counsel to NL’s:1.\u00a0 October 20, 1979 – Respondent will complete and submit answers toComplainant’s First Set of Interrogatories;2.\u00a0 October 20, 1979 – Respondent will submit to Complainant a document listidentifying those documents which will be produced in response to Complainant’s discoveryrequest;3.\u00a0 October 20, 1979 – Complainant will submit supplementary documents and answers torespondent’s discovery requests;4.\u00a0 October 25, 1979 – Hearing scheduled before Judge Riehl;5.\u00a0 November 5, 1979 – During this week Complainant will inspect those documentswhich Respondent produces in response to Complainant’s discovery and Judge Riehl’s Orderregarding said discovery.\u00a0 The inspection of documents will take place atRespondent’s Hightstown, New Jersey facility.\u00a0 Respondent agrees to provide true andcorrect copies of any document requested by Complainant and Complainant agrees toreimburse Respondent for the costs of providing said copies.\u00a0 In light ofRespondent’s refusal to discuss the type of documents to be produced and the interrogatoryto which said document relate, Complainant takes no position as to whether or not saidproduction complies with Judge Riehl’s Order nor does Complainant take any position as tothe appropriate party who should bear the expense entailed in travel to New Jersey for theinspection and copying of documents.6.\u00a0 November 19, 1979 – During this week Knowlton Caplan will be allowed to enter andinspect Respondent’s Beech Grove, Indiana facility on behalf of the Complainant.[[17]]On October 20, NL submitted what it asserted were answers to the interrogatories.\u00a0The response consisted almost entirely of a 29 page \”index\” whichpurported to identify documents that NL would make available for the Secretary to examine.\u00a0The first page contained a list of NL plants, with numerical entries for\”Records at Hights(town)\” and \”Records at Plant.\”\u00a0 For example,for Beech Grove the page listed 18 records at Hightstown and one at the plant.\u00a0 Thelist also contained a special notation for Beech Grove at the bottom of the \”Recordsat Hights(town)\” column:\u00a0 \”3 – in transit.\”\u00a0 For all of theplants, there were listed a total of 191 records at Hightstown (including the 3 from BeechGrove \”in transit\”), and 63 records at the various plants.[[18]]The remaining 28 pages is a handwritten, partially illegible list purportingto characterize the contents of various boxes and drawers of records at Hightstown.\u00a0Apparently, there is supposed to be some correlation between this list and the\”Records at Hights(town)\” on the first page.\u00a0 Any such correlation,however, is completely obscure, for while the first page indicates that NL has a certainnumber of records relating to each plant, the boxes and drawers in the remaining 28 pagesare either not identified by plant or they have documents from more than one plant inthem.\u00a0 Even more important, most of the references on the list are to documents thatare irrelevant to this case.\u00a0 For example, the following is one page of the list.Box E\u00a0\u00a0 ERISA Documentation – Midwest(illegible)Box F\u00a0\u00a0 Midwest Area Terminated Employee Files(Misc. Sal.)Chicago Register CardsFringe Benefit CardsBox G\u00a0\u00a0 Employee History RecordsBenefit Cards – St. L. Park, Cleveland,SouthernBox H\u00a0\u00a0 W\/C – Cleveland – 1977\” – St. Louis Pk. – 1977Hgt Injury Logs 75,76Misc. Benefit CardsHistory RecordsDisciplinary Logs – St. L. Pk – 77,78Box I\u00a0\u00a0 Employee History RecordsNot all of the references in the list are to irrelevant material. \u00a0Scattered throughout are references to topics such as OSHA, Safety, Lead in Air, bloodleads, and medical records. \u00a0But most of the entries refer to documents that cannotbe considered within the scope of the interrogatories.[[19]]NL brought to the sanctions hearing the people who had anything to do with preparation ofits answers.\u00a0 The 28-page list was prepared by Patty Dollar, who was administrator ofcompensation and benefits for the Metal Division and worked at the Hightstown plant.\u00a0She stated that records of closed plants were transferred to Hightstown.\u00a0 Shewent through the records at Hightstown and characterized the type of documents the filecontained.\u00a0 She stated:\u00a0 \”I did not go through each of the files. \u00a0What I did was I reviewed basically what was in one box; if they were Workers comp casesin half the box and disciplinary records in the other half of the box, that’s what wentdown on my list.\”\u00a0 In making the list, Ms. Dollar was not made aware of itspurpose or of the specific type of documents the Secretary was seeking.\u00a0 She was nottold to look for records of chelation treatment or lead poisoning.At the sanctions hearing, Ms. Dollar produced another 15 page, mostlyhandwritten list describing records remaining at Beech Grove.\u00a0 As did the other list,this list described the contents of numerous boxes, drawers, file cabinets, and bookcasesof records. Counsel for NL stated he had not previously seen the list but had a\”suspicion\” it was an index of documents presently at Beech Grove.\u00a0However, NL’s original submission indicated that almost all of the Beech Groverecords had been transferred to Hightstown, and only one record remained at Beech Grove.\u00a0 NL never explained this discrepancy.NL also brought to the sanctions hearing John Wentz, who had been in chargeof workmen’s compensation at Beech Grove.\u00a0 Wentz answered in the affirmative whenasked by the judge whether records relating to lead poisoning were kept in specificdrawers. Counsel for NL then stated that, when Wentz left NL, counsel requested thatWentz’s records be segregated and sent to his office. Counsel stated that he had gonethrough Wentz’s files and found numerous studies, surveys, or tests for the purpose ofabatement in them.\u00a0 Counsel then sent those records to Ms. Dollar \”for safekeeping.\”\u00a0 In NL’s answer to the interrogatories, the only reference to thesedocuments was the notation that three Beech Grove records were \”in transit\” toHightstown.\u00a0 There was no indication of the nature of these records, despite the factthat they obviously contained information that the Secretary was seeking.Thus, as nearly as can be gleaned from this record, NL’s efforts to answerthe interrogatories consisted of the following.\u00a0 Wentz reviewed his records at BeechGrove and prepared three boxes of documents that were highly relevant.\u00a0 These boxeswere not supplied to the Secretary, nor was the Secretary even informed they existed.\u00a0Instead, NL supplied the Secretary with cryptic lists summarizing all of the recordsNL currently had at Hightstown, whether or not relevant to the case, and indicating thatother records were scattered throughout the country, some at plants that NL no longerowned.\u00a0 The lists were simply the most general summaries of the types of documents invarious boxes and file drawers, and were prepared by persons who had no idea what type ofinformation was being sought.[[20]]\u00a0 The only reference to the three boxes whichcounsel knew contained relevant material was that three \”Beech Grove\” recordswere \”in transit.\”\u00a0 Beyond that, the information given to the Secretarystated that only one \”record\” remained at Beech Grove, but it later developedthat numerous records were still at the Beech Grove plant at the time of the sanctionshearing.\u00a0 Thus, the information supplied in response to the interrogatories wasinaccurate as well as incomplete.\u00a0 It was also not responsive to the interrogatories.As I stated above, when answers to interrogatories can be derived from a party’s businessrecords, Rule 33(c) permits the party the option of permitting the other party areasonable opportunity to examine those records.\u00a0 However, for such an answer to besufficient, the party must specify the record from which the answers may be derived, andthe \”specification shall be in sufficient detail to permit the interrogating party tolocate and to identify, as readily as can the party served, the records from which theanswer may be ascertained.\”\u00a0 The party required to answer \”may not imposeon an interrogating party a mass of records as to which research is feasible only for onefamiliar with the records.\”\u00a0 Notes of Advisory Committee on Rules, Fed. RulesCiv. Proc. Rule 33, 28 U.S.C.A. at 322.\u00a0 Instead of giving the Secretary an indexthat would facilitate his review of the documents, NL hid the relevant material within avast amount of irrelevant documents so as to make the Secretary’s examination of thedocuments unmanageable. Measured by the requirement of Rule 33(c), NL’s \”index\”was completely inadequate.\u00a0 NL did not answer the interrogatories, but simply invitedthe Secretary to a game of \”blind man’s bluff.\”\u00a0 See Dollar v.Long Mfg., N.C., Inc., 561 F.2d 613, 615-17 (5th Cir. 1977). APPROPRIATENESS OF SANCTIONSCommission judges have the discretion to impose sanctions on parties who violate theirorders.\u00a0 TRG Drilling Corp., supra; Pittsburgh Forgings Co., 82OSAHRC 14\/D13, 10 BNA OSHC 1512, 1982 CCH OSHD ? 25,974 (No. 78-1361, 1982); Wheeling-PittsburghSteel Corp., 4 BNA OSHC 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.\u00a0 Rule 37(b) of the Federal Rulesof Civil Procedure lists sanctions that may be imposed on a party who fails to comply witha discovery order.\u00a0 Those sanctions include the rendering of a default judgmentagainst the disobedient party.[[21]]\u00a0 Such a sanction should only be imposed inextreme circumstances:\u00a0 when the noncomplying party’s conduct has been contumaciousor when the opposing party is prejudiced in the preparation or presentation of its case.\u00a0 National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639 (1976)(dismissal of party’s case for failure to answer interrogatories was justified by theflagrant bad faith of the party); Noranda Aluminum, Inc., 80 OSAHRC 128\/B2, 9 BNAOSHC 1187, 1981 CCH OSHD ? 25,086 (No. 79-1059, 1980) (dismissal for violation ofdiscovery order inappropriate in absence of contumacious conduct or prejudice to opposingparty).\u00a0 If the Commission refuses to impose sanctions when a party’s failure tocomply with a discovery order is either contumacious or acts to prejudice the opposingparty, that party will profit from its own wrongdoing and gain an unfair advantageunrelated to the merits of their case.\u00a0 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 opposing party in thepreparation or presentation of its case, the advantage gained is obvious.\u00a0 Theadvantages that a party can gain by obstructing discovery can only be counteracted bysubjecting that party to the risk that its conduct will result in sanctions.[[22]] I have detailed above the respects in which NL’s conduct was dilatory and in bad faith.\u00a0 Additionally, the record demonstrates that NL’s conduct prejudiced the Secretary’scase.At the time this case arose, NL’s Beech Grove plant was an ongoing operation.\u00a0 On June 15, 1979, the date by which NL was originally supposed to answer theinterrogatories, the Beech Grove plant was still in operation.\u00a0 By the time NL filedits \”answers\” to the interrogatories, the plant was shut down and its recordshad been scattered:\u00a0 some remained at Beech Grove, others were at Hightstown, and yetothers were \”in transit.\”\u00a0 Giving the Secretary the opportunity to examinethe records only after they had been scattered and intermingled with all of NL’s corporaterecords clearly prejudiced the Secretary’s ability to reconstruct what had been occurringat Beech Grove.Furthermore, the Secretary was seeking throughout the discovery process tohave his expert conduct a discovery inspection of the Beech Grove plant.\u00a0 However,before such an inspection could be meaningfully conducted, the expert required theblueprints of the plant and certain other information that the Secretary had requestedthrough the interrogatories.\u00a0 At the time he filed the interrogatories, the Secretaryinformed NL that he needed this information before the discovery inspection could beconducted. Although NL purported to be willing to cooperate with the Secretary inscheduling a discovery inspection, it did not supply the documentation it knew theSecretary needed before the inspection could be conducted.\u00a0 Instead, NL was planningto close the plant, and it only agreed with the Secretary to schedule the discoveryinspection after the plant was closed.\u00a0 Obviously, a discovery inspection of a plantthat was shut down would be useless.[[23]]CONCLUSION The printed record of a case can never convey the entire flavor of the proceedings beforea trial judge.\u00a0 For that reason, reviewing tribunals necessarily give great deferenceto those rulings by a trial judge that are based, at least in part, on observations thatthe trial judge is in a unique position to make.\u00a0 See C. Kaufman, Inc.,78 OSAHRC 3\/C1, 6 BNA 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 the credibility ofwitnesses, \”for it is the Judge who has lived with the case, heard the witnesses, andobserved 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 of discovery.\u00a0 He was in a unique position to evaluate whether NL had, as it alleged, made effortsto comply with his discovery order.\u00a0 The judge concluded that NL had not acted ingood faith throughout the discovery process and detailed his reasons for reaching thisconclusion.\u00a0 I would not reverse him as to the imposition of sanctions.The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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 company during the course ofthis litigation.[[2]] Chelation therapy involves the use of certain drugs, referred to aschelating 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 a penaltyof up to $10,000 may be assessed for willfully or repeatedly violating the Act. \u00a0Section 17(d), 29 U.S.C. ? 666(d), states that a penalty of up to $1000 per day may beassessed if an employer fails to abate a violation within the period permitted for itscorrection.\u00a0 The Secretary proposed the maximum permissible statutory penalties of$10,000 for each of the willful or repeat items.\u00a0 For NL’s alleged failure to abatethe 1976 violation of section 1910.1000(e), the Secretary originally proposed a penalty of$1000 per day for the 31 days between the abatement date, August 1, 1978, and the closingdate of the inspection, September 1, 1978.\u00a0 At the hearing on these citations,following the judge’s sanctions order against NL, the Secretary moved to amend the failureto abate penalty to include the period from September 1, 1978 to October 1, 1979, the datethe plant was closed.\u00a0 The Secretary’s motion proposed a penalty of $1000 per day forthis additional period as well as for the original 31-day period. \u00a0 Thus, theultimate proposed penalty for the alleged failure to abate totaled $426,000.\u00a0 Thejudge granted the motion to amend and ultimately assessed the penalties proposed by theSecretary totaling $536,000:\u00a0 $426,000 for the failure to abate and $110,000 for theother 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 party uponwhom a motion is served shall have ten days to file a response.\u00a0 On April 19, theSecretary served its motion on NL by certified mail.\u00a0 Pursuant to Rule 4(b), 29C.F.R. ? 2200.4(b), regarding service by mail, NL would have been entitled to anadditional three days to file its response.[[5]] In this respect, the Commission’s rules differ from the Federal Rulesof Civil Procedure, which permit a party to serve interrogatories on another party withoutleave of court and favor broad-based pretrial discovery.\u00a0 Fed. R. Civ. P. 33(a). [[6]] We do not decide whether the interrogatories were proper.\u00a0 If the Secretarydesires further answers to his interrogatories, the judge on remand should rule on theappropriateness of the Secretary’s request.\u00a0 In ruling on issues of this nature, wenote that a prehearing conference on discovery disputes often provides a mechanism to keepthe discovery process 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 the Commission orthe Judge to permit discovery in accordance with the provisions of these rules, the Commission or the Judge may issue appropriateorders.We do not decide whether the \”appropriate orders\” authorized bythis rule include the type of sanctions order the judge issued in this case. \u00a0Assuming that the judge has the authority to impose such sanctions in an appropriate case,we conclude that the sanctions were improperly applied 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 whether themeasurements of employee exposure the Secretary makes during an inspection arerepresentative of the exposures that normally occur in the employer’s workplace.\u00a0 SeeDuquesne Light Co., OSHRC Docket No. 79-1682 (June 29, 1984) (in case whereSecretary measured asbestos exposures exceeding the limits of the asbestos standard, themajority vacated certain items and found others not to be serious in nature because theSecretary failed to prove the measured exposures were representative); HermitageConcrete Pipe Co., 82 OSAHRC 14\/A2, 10 BNA OSHC 1517, 1982 CCH OSHD ? 25,975 (No.4678, 1982) (exposures to excessive silica dust measured by the Secretary assumed to berepresentative, but employer permitted to rebut presumption).\u00a0 In this case, NL’scounsel stated at the preliminary hearing that the Secretary’s inspection had occurredduring the \”shakedown period,\” when the controls NL had installed to abate the1976 violation were not yet fully effective.\u00a0 NL was thus contending that theconditions observed during the inspection, and the measurements of employee exposure thatwere made, did not accurately represent the efforts NL had taken to abate.\u00a0 Thisassertion is relevant to numerous issues in the case, including whether NL had made a goodfaith attempt to abate and whether the penalties proposed by the Secretary wereappropriate.\u00a0 Obviously, in order to intelligently litigate the case, the Secretarywould have to obtain an accurate picture of the lead exposures at Beech Grove and of NL’sefforts to reduce those exposures over a considerable period of time.\u00a0 Just asobviously, the Secretary could only obtain this information from NL itself.[[5]] Elevated blood lead levels can cause numerous adverse health effects.\u00a0 At sufficiently high levels, death can result.\u00a0 At lower levels, a person cansuffer irreversible brain damage, kidney failure, or damage to the reproductive system.\u00a0 Less drastic effects include anemia, loss of appetite, constipation, nausea,insomnia, fine tremors, hyperactivity, and colic.\u00a0 See United Steelworkersof 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 blood lead levels as asubstitute for lowering the amount of lead to which persons are exposed is unacceptableunder modern medical principles.\u00a0 See United Steelworkers of America v.Marshall, 647 F.2d at 1237 n. 73.[[7]] The abatement period specified in a contested citation does not beginto run until the entry of a final Commission order affirming the citation.\u00a0 29 U.S.C.? 659(b).[[8]] NL was first cited by the Secretary in 1973 for failing to use feasibleengineering and administrative controls to reduce the exposure of its employees to leadand for failing to implement an adequate program for the use of respirators.\u00a0 It didnot contest those citations and they became final orders of the Commission.\u00a0 In 1976,OSHA again inspected the Beech Grove plant and found that employees were still exposed toexcessive lead.\u00a0 NL was cited for repeatedly failing to use feasible engineering andadministrative controls and for other violations arising out of the 1976 inspection, andNL withdrew its notice of contest to those citations as part of the settlement agreementapproved by Judge Dixon.\u00a0 Thus, by the time of the inspection that led to this case,NL already had a substantial history of noncompliance with the standards regulatingemployee 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.\u00a0 It is alsonoteworthy that, in arguing to the Commission that the judge’s order requiring it toanswer the interrogatories was improper, NL does not rely on any of the numerousobjections it raised before the judge in opposition to the interrogatories.\u00a0 NLapparently fully realizes the lack 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 state physician-patientprivilege.\u00a0 The Commission rejected the argument on the basis that a privilegearising under state law is inapplicable to a proceeding governed by substantive federallaw.\u00a0 However, the issue West Point Pepperell had raised was a serious one,was supported by citation to authority, and deserved careful consideration.\u00a0 Bycontrast, 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 violate its employees’right to privacy.\u00a0 The Commission held that this objection had merit, and that anyorder requiring production of employee records would have to protect the employee’s rightto privacy.\u00a0 On review, NL relies on this aspect of the Commission’s decision in WestPoint Pepperell in arguing that the judge’s unqualified order requiring disclosure ofmedical records was erroneous.\u00a0 However, NL never raised the right to privacy issuebefore the judge, only the physician-patient privilege issue.\u00a0 The judge cannot befound to have abused his discretion for failing to rule on an objection that NL did notmake before him.[[11]] NL’s motion for an extension of time to answer the interrogatoriesasserted that \”papers submitted in support of NL’s objections to the interrogatoriesdetail the magnitude (sic), breath (sic), and burdenness (sic) of the task entailed.\”\u00a0 In fact, NL submitted no papers with its objections detailing these factors; NLsimply asserted without elaboration that the interrogatories were burdensome.[[12]] The Act provides that, unless the Commission has adopted a differentrule, its proceedings shall be in accordance with the Federal Rules of Civil Procedure.\u00a0 29 U.S.C. ? 661(f).\u00a0 The Federal Rules of Civil Procedure containcomprehensive rules governing discovery.\u00a0 Those rules basically provide for discoveryto be conducted extrajudicially in the absence of a dispute between the parties.\u00a0 SeeForte Brothers, Inc., 80 OSAHRC 111\/E7, 9 BNA OSHC 1065, 1980 CCH OSHD ? 24,909(No. 79-5655, 1980).\u00a0 The Commission’s procedural rules contain limited, but notcomprehensive rules on discovery.\u00a0 The Commission has longrecognized that discovery in our proceedings is governed by the Federal Rules of CivilProcedure to the extent it is not governed by specific Commission rules.\u00a0 ReynoldsMetals Co., 78 OSAHRC 51\/F1, 3 BNA OSHC 1749, 1975-76 CCH OSHD ? 20,214 (No. 4385,1975).[[13]] Rule 53(b) provides:\u00a0 \”In the event the Commission or the Judge grants anapplication for the conduct of [discovery depositions or interrogatories], the ordergranting the same shall set forth appropriate time limits governing the discovery.\”[[14]] On review, NL contends that the sanctions order was improper becausethe Secretary never made a motion to compel answers pursuant to Rule 37(a) of the FederalRules of Civil Procedure.\u00a0 This argument is frivolous.\u00a0 The Secretary did moveto compel answers, and NL never argued to the judge that his order compelling answers wasnot issued in response to a proper motion.\u00a0 Moreover, as discussed above, the partiesunderstood that the Secretary would file interrogatories, NL would file objections, andthe judge would then rule on whether to permit the interrogatories.[[15]] If a party is certain of the merits of its argument and is confident it willultimately prevail, its failure to comply with a discovery order is not an indication ofbad faith.\u00a0 See Newport News Shipbuilding & Drydock Co., 80 OSAHRC119\/A2, 9 BNA OSHC 1085, 1980 CCH OSHD ? 24,003 (No. 76-171, 1980).\u00a0 But a party whofails to comply must be prepared to accept the consequences of its noncompliance if itsarguments do not ultimately prevail.[[16]] The majority criticizes the judge for failing to evaluate the adequacyof the initial answers NL had submitted to the interrogatories to which it had notobjected.\u00a0 Whether those answers were adequate is not and never was an issue in thecase.\u00a0 The judge’s order required NL to answer all of the interrogatories, and NLcould not comply by submitting a few documents of its own selection.\u00a0 Moreover, noteven NL has argued that its initial answers to certain interrogatories bear in any way onthe adequacy of the answers it later submitted to the remaining interrogatories.[[17]] At the time the parties entered into this agreement, the Secretary was not awarethat the plant had either already been closed or that its closure was imminent.\u00a0 NL’sagreement to allow the Secretary to conduct a discovery inspection of a plant it knewwould be closed when the inspection was to be conducted is representative of NL’slitigation tactics in this case.[[18]] When it filed its \”answers\” to the interrogatories, NLstated that it would make all of the records referenced therein available for theSecretary’s inspection.\u00a0 At the same time, NL asserted that certain of the plantsthat contained referenced documents had been sold and were therefore no longer under NL’spossession or control.\u00a0 NL did not state how it would make documents which were notin its possession or control available for the Secretary to inspect.[[19]] NL’s argument in its brief on review that the interrogatories requested materialsuch as EEO (equal employment opportunity) complaints is frivolous.\u00a0 Theinterrogatories plainly requested only information pertaining to lead.[[20]] The lists were primarily prepared by Ms. Dollar, but not all the listsare in the same handwriting.\u00a0 Ms. Dollar explained that some of the information hadbeen provided her by people at the different plants.[[21]] Commission Rule 54, 29 C.F.R. ? 2200.54, provides:\u00a0 \”If anyparty or intervenor fails to comply with an order of the Commission or the Judge to permitdiscovery in accordance with provisions of these rules, the Commission or the Judge mayissue appropriate orders.\”\u00a0 Because the Commission has a specific rule governingsanctions for failure to comply with discovery orders, Rule 37(b) does not directly apply.\u00a0 Indeed, because Rule 37(b) includes the authority to hold a disobedient party incontempt of court, that rule cannot apply directly to Commission proceedings, for theCommission lacks contempt power.\u00a0 Nevertheless, the sanctions listed in Rule 37(b)that are within the Commission’s authority to impose, including a default judgment, areobviously the type of sanctions Commission Rule 54 contemplates.[[22]] Sanctions also serve the purpose of deterring other parties fromengaging in similar conduct in the future.\u00a0 National Hockey League v.Metropolitan Hockey Club, 427 U.S. at 643.[[23]] NL has contended throughout these proceedings that it installed all ofthe controls required by Judge Dixon’s order approving the settlement of the 1976citations.\u00a0 NL has also contended that the 1978 inspection occurred during the\”shakedown period\” when these controls were not yet fully effective.\u00a0 See supranote 4.\u00a0 The Secretary’s inability to conduct a meaningful discovery inspection wouldobviously prejudice his ability to rebut these contentions.”