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. 78-5204

DECISION

Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission pursuant to section 12(j), 29 U.S.C. ї 661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. її 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration. It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. ї 659(c).

The Secretary of Labor cited NL Industries for allegedly failing to abate a violation of an OSHA standard regulating employee exposure to airborne lead and for allegedly committing other willful, repeated, and serious violations of the Act. An administrative law judge affirmed all of the Secretary's charges and assessed penalties totaling $536,000. The judge's order was issued following a truncated hearing at which, as a sanction for failing to comply with a discovery order, he precluded NL from offering any defense. We conclude that the judge abused his discretion in his handling of the Secretary's request for discovery and in his ultimate order sanctioning NL. We therefore 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 Beech Grove, Indiana.[[1]] In 1976, following an inspection of the plant, the Secretary issued to NL citations alleging various violations relating to exposure of employees to lead. One citation alleged that NL violated 29 C.F.R. ї 1910.1000(e) by failing to employ feasible engineering and administrative controls to reduce the lead exposure of employees in certain job categories to permissible limits. Following NL's contest of the citations, the Secretary and NL agreed that NL would abate the violation of section 1910.1000(e) by installing certain specific engineering controls. On January 31, 1978, an administrative law judge approved the settlement agreement. 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 and September 1, 1978. On October 25, 1978, the Secretary issued to NL a 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, the Secretary issued two other citations containing thirteen items. The Secretary subsequently consolidated two of these items and withdrew one, leaving the following eleven items at issue: five items alleging willful-serious violations of the respirator standard at 29 C.F.R. ї 1910.134; three items for willful-serious violations of 29 U.S.C. ї 654(a)(1), the general duty clause of the Act, alleging deficiencies in the manner in which NL's employees received chelation therapy;[[2]] two willful-serious items alleging violations of the sanitation standard at 29 C.F.R. ї 1910.141; and one repeat-willful-serious item alleging that employees in job categories not mentioned in the 1976 citation were overexposed to airborne lead. The Secretary proposed penalties totaling $141,000.[[3]]

II
NL contested these citations and proposed penalties. On March 20, 1979, the Secretary filed a series of interrogatories in the case together with a request for production of documents and a motion for entry on land. A brief description of the principal interrogatories will illustrate the breadth of the Secretary's discovery request.

Interrogatory 1 asked for detailed information identifying every employee 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 for detailed information concerning the work assignments for each employee. All records of airborne lead sampling for each such employee were requested, as well as records of all medical examinations given such employees. The Secretary asked for identification of all employees who had received chelation therapy and for detailed information concerning any such treatment.

Interrogatory 4 asked for identification and copies of all studies, surveys, or tests conducted or caused to be conducted by NL for the purpose of abatement or control of lead exposure, and interrogatory 5 asked for all corrective action NL had taken pursuant to such studies for the periods prior to August 21, 1978, and after October 23, 1978. Interrogatory 8 asked NL to identify all administrative or engineering controls to reduce airborne lead concentrations that the company believed were not economically or technologically 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 lead smelting activities similar to those performed at its Beech Grove plant and to attach all records "relating to employee exposure to lead and/or to the use of chelating agents on lead exposed employees."

Interrogatory 14 asked NL to produce all layouts, blueprints, and/or related records or documents "which in any way relate to or depict" NL's Beech Grove workplace including, but not limited to, the areas referred to in the citations. This interrogatory also requested NL to produce a large variety of documents pertaining to employee exposure to lead and abatement of such exposure and to use of personal protective equipment and chelating drugs. The documents sought by the Secretary included such categories of material as medical records and employee medical data, grievances and employee complaints, and trade publications and similar documents. NL also was asked for all documents from 1973 to the present concerning medical services performed for any employee based on lead exposure, for all policy statements or similar material "which in any way relate to or discuss" the use of chelating agents, and for all photographs and records including employee sampling data taken by or for NL during any OSHA inspection of the Beech Grove worksite.

On April 12, 1979, NL filed its objections to certain of the Secretary's interrogatories, contending that much of the information sought by the Secretary was not relevant and not reasonably calculated to lead to the discovery of admissible evidence, that certain of the requests, particularly the requests for production of documents, were overly burdensome and overbroad, and that the employee medical records the Secretary sought were privileged. On April 23, the judge received the Secretary's response to NL's objections, in which the Secretary moved for an order compelling NL to answer. The 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 an order requiring NL to answer all interrogatories by June 15. On May 1, NL filed a timely response to the Secretary's motion to compel together with responses to the interrogatories to which it had not objected. There is no indication that the judge reconsidered his order compelling answers in light of NL's response.

On May 2, NL filed with the Commission a request for special permission to appeal the judge's order compelling answers. On June 4, NL filed with the judge a motion for a stay of the proceedings pending the Commission's ruling on its motion for special permission to appeal. The judge denied this motion on June 7. On June 15, NL moved for an extension of time to August 15 to answer the interrogatories. The judge did not rule on this motion.

On June 20, the Secretary filed an opposition to NL's request for an extension and moved for a hearing to impose sanctions on NL for failing to comply with the judge's discovery order. On July 9, the judge set a hearing for July 20, at which NL would be required to show cause why it should not be sanctioned. 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 permission to appeal. Thus, the order issued by the judge on July 9 was nullified. On September 6, the Commission issued an order denying NL's request for special permission to appeal and dissolving the stay. On September 24, the judge rescheduled the show cause hearing for October 25 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 counsel confirming an agreement they had reached concerning the discovery schedule. They agreed that NL would submit further answers to the Secretary's interrogatories and that the documents required to be produced by the interrogatories could be inspected by the Secretary's counsel at Hightstown, New Jersey, where NL's Metals Division headquarters was located. This inspection was to take place the week of November 5. On October 19, NL filed its response to the interrogatories, consisting of amended and supplemental answers and an index listing the content of boxes and drawers of documents that NL would make available for the Secretary to inspect. The index listed the types of documents to be found in each box or drawer.

At the show cause hearing on October 25, the Secretary argued that NL's response was insufficient. His main objective was that the index supplied by NL did not specify in which boxes of drawers of documents could be found the answer to each specific interrogatory. Immediately upon hearing the objection, counsel for NL offered to identify the specific box or boxes of documents to which each interrogatory referred. The judge ruled, however, that NL had already had sufficient time to provide adequate answers and he therefore refused to afford NL the opportunity to meet the Secretary's objection.

Having ruled that NL's response was inadequate, the judge announced that he 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 default judgment on liability was entered against NL; (3) a hearing would 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 could not offer testimony or evidence of its own at the hearing, but could only introduce evidence through cross-examination of the Secretary's witnesses. As noted above, following the hearing the judge affirmed all of the Secretary's charges and assessed the amended penalty the Secretary had proposed.

III
Rule 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 of parties, 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 a matter of right. A party seeking such discovery must apply to the judge, and the judge 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 fair and prompt hearing to the parties. Before ruling on a discovery request, the judge should carefully inquire into the extent to which the party seeking discovery needs the information 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. KLI, Inc., 77 OSAHRC 202/A2, 6 BNA OSHC 1097, 1098, 1977-78 CCH OSHD І 22,350 at p. 26,937 (No. 13490, 1977). Permitting the discovery of vast amounts of marginally relevant material will serve only to delay a case and to unduly burden the party from whom discovery is sought. A judge should therefore look with disfavor on broad, open-ended discovery requests.

The judge failed to conduct the necessary inquiry in this case. NL is a large company, with numerous plants engaged in lead smelting. The Secretary's interrogatories in effect asked NL to supply all information in its possession concerning employee lead exposures at all of these plants. Given the nature and extent of NL's business and the broad, unrestricted nature of the interrogatories, it is apparent that NL would have to review and provide a vast amount of documentation to comply with the judge's order.

The record contains no indication that the judge balanced the need for the Secretary to obtain discovery against the burden the Secretary's request imposed on NL. The judge failed to address NL's arguments opposing the Secretary's discovery request, and he issued his order compelling NL to answer only one day after he received the Secretary's motion for such an order and without waiting the period of time permitted by the Commission's rules for NL to file a response to the motion. Given the extensive nature of the interrogatories and NL's objections, which included physician-patient privilege, relevance, improper shifting of the burden of proof, and burdensomeness, it was incumbent 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 file initial answers to those interrogatories to which it had not objected, nor does the record indicate that the judge made any attempt to evaluate the adequacy of those answers. Moreover, NL subsequently agreed to make additional information available to the Secretary and by the time of the sanctions hearing on October 25, the Secretary had agreed to examine the documentation at NL's Hightstown, New Jersey, facility during the week of November 5. Until the Secretary conducted this examination, the judge had no basis on which to conclude that NL had not in fact made the requested documentation available to the Secretary.[[7]] At the sanctions hearing, the Secretary objected that the index supplied by NL was not sufficiently detailed, but NL agreed to provide a more detailed index and should have been afforded the opportunity to do so before the scheduled examination of documents was to take place.

The judge continually asserted that he was concerned with expediting the case, but he failed to recognize that granting in full the Secretary's broad discovery request was incompatible with this objective. He also appeared to believe that the case could properly be expedited simply by establishing and adhering to an unrealistically short time limit for NL to answer the interrogatories. We cannot condone a course of action that places the burden of expedition entirely on one party.

Accordingly, the judge's sanctions order and decision are set aside and the case is remanded to the Chief Judge[[8]] for further proceedings, consistent with this decision.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

DATED: JUL 20 1984

CLEARY, Commissioner, dissenting:

NL's litigation strategy of delay and obstruction in discovery is sharply at odds with the Commission's mandate to conduct speedy adjudication of cases brought before it. Atlas Roofing Co. V. OSHRC, 430 U.S. 442 (1977). A statute that has been construed to consider trial by jury as inconsistent with this mandate can hardly be read fairly to permit discovery abuse inhibiting prompt adjudication. NL's failure to make a good faith effort to comply with the administrative law judge's lawful discovery order justified sanctions. Accordingly, I dissent 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 these proceedings, it is useful to examine the role that discovery plays in Commission proceedings.

A case before the Commission is initiated by the issuance of a citation or notification of failure to abate by the Secretary and the filing of a timely notice of contest by the employer.[[1]] Most often, the citation or notification of failure to abate is issued after a physical inspection of the employer's workplace by the Secretary's representative.[[2]] If, during such an inspection, the Secretary obtains information that leads him to believe the employer violated the Act or failed to timely abate an earlier violation, the Secretary is authorized to issue a citation or notification of failure to abate.[[3]]

If the employer contests the Secretary's enforcement action and the case comes before the Commission for a hearing, the Secretary needs more than a belief that the employer violated the Act; he must be prepared to prove the violation by a preponderance of the evidence. 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 CCH OSHD І 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 complex issues arising under standards regulating employee exposure to a toxic substance, that burden is a heavy one. The information gathered by the Secretary during a relatively brief inspection will necessarily not be as complete as the information the employer has in its possession regarding its continuing operations.[[4]] Thus, while the Secretary may have sufficient evidence to issue a citation, he may need to obtain information that the employer possesses in order to sustain his burden of proof. He may also need that information to be in a position to rebut evidence that the employer introduces.

Discovery, however, is not simply a tool to enable the Secretary to gather information adverse to an employer. The employer can also use discovery to learn the evidence on which the Secretary bases his charges so as to be better able to present its defense. The ultimate goal of a Commission proceeding is to resolve as accurately as possible the Secretary's charges, whether that resolution is favorable or unfavorable to the employer. By giving all parties access to all potentially relevant information, discovery tends to assure that the Commission's decision will be the correct one. By enabling all parties to know the information in the possession of the other parties prior to the hearing, discovery minimizes the advantage a party may gain by presenting surprise testimony. Discovery also tends to facilitate settlements by enabling parties to evaluate the relative strength and merits of their case before the hearing. These benefits of discovery, of course, are not unique to Commission proceedings, but provide the basis for the liberal 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 the Secretary's interrogatories illustrates the potential value of discovery. That document is an internal memorandum, dated October 12, 1978, from J.W. Roper, NL's corporate safety director, to H.J. Heinkele of 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 is prevalent in other plants, namely, Cleveland, Dallas and to some extent Pedricktown. Too many people have been chelated, put back into the work area 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 of respirators, enforcement of hygiene rules and the lack of supervisors to enforce good work habits are the primary causes. How else can we explain the differences in blood leads from one plant to another?

Unless strict adherence to good work practices, personal hygiene and respiratory 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 Beech Grove employees. I do not know what those records contain, but I am willing to wager the contents will not improve NL's image if revealed.

The Division must stress the importance of this and extract objectives on the reduction of blood lead levels from each plant manager.

This memorandum contains a number of potential implications for this case. First, it indicates that NL employees possess elevated blood lead levels,[[5]] that NL is extensively employing chelation therapy to reduce those levels,[[6]] and that at certain plants, including Beech Grove, NL has not been adequately enforcing proper wearing of respirators and hygiene rules. These are all directly relevant to the charges made in the Secretary's citations. Moreover, the memorandum states that blood lead levels vary considerably from one NL plant to another, and suggests that the Beech Grove plant is considerably worse than others. This indicates that NL has been able to reduce lead exposure at other plants and is therefore indicative that it would be feasible to reduce the lead levels at Beech Grove. It also suggests that an examination of NL's experience with lead exposures and controls at 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 the existence of such records and that the records are likely to be damaging to NL's position in the case.

NL'S OBJECTIONS
The judge convened a preliminary hearing on February 20, 1979, to discuss, among other things, a schedule for discovery. Both the Secretary and NL stated that they wished to obtain discovery through interrogatories, and the judge gave his approval for the parties to do so, subject to objections to specific interrogatories by the party from whom discovery was sought. The judge stated that he expected the parties to cooperate in exchanging information, noting that the case involved serious charges that should be disposed of expeditiously so that NL would be exonerated if the charges were not true, and employees would be protected if the charges were true.[[7]] The judge further stressed that he expected all parties to comply with the prehearing order he had previously issued which stated, among other things, that parties who failed to comply with the judge's orders would be subject to sanctions, including potential dismissal of their case. The judge referred to Hoerner Waldorf Corp., 76 OSAHRC 135/D12, 4 BNA OSHC 1836, 1976-77 CCH OSHD І 21,215 (No. 12713, 1976), in which the Commission affirmed a decision by the judge to dismiss the Secretary's charges because the Secretary had failed 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 objections on April 12. The majority discusses the interrogatories in some detail, but it only briefly states the nature of NL's objections. The majority then faults the judge for not carefully weighing NL's objections, implying that the judge acted summarily and without giving adequate consideration to possibly meritorious arguments. However, when one examines NL's objections, it becomes clear that those objections are so lacking in merit as to be frivolous, and that the judge acted properly in summarily rejecting them.

The interrogatories sought certain information going back to 1973, the year the Beech Grove plant was first inspected by OSHA.[[8]] One of NL's principal objections was that all information prior to the inspection that began on August 21, 1978, was irrelevant to this proceeding because all prior disputes between the parties had been settled by Judge Dixon's order in September, 1977, approving the settlement of the 1976 lead citations. However, the alleged violations and penalty proposals in this case place in issue NL's entire course of conduct under the Act with respect to its employees' exposure to lead. See supra note 4. Moreover, although it argued to the judge that everything that transpired before August 21, 1978 was irrelevant to these proceedings, on review NL laments that the sanctions order precluded it from demonstrating its good faith by introducing evidence concerning its abatement activities between 1973 and 1976. That NL itself recognizes the obvious relevance of its activities prior to August 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 of medical examinations given to employees. NL asserted that such records can only be obtained by search warrant or administrative subpoena, not through discovery. As authority for this proposition, NL cited Marshall v. Barlow's, Inc., 436 U.S. 307 (1978). In Barlow's, the Supreme Court held that the Act was unconstitutional to the extent it purported to authorize nonconsensual, warrantless searches of workplaces. The case is not even remotely relevant to a party's right to obtain documents through discovery in a case under litigation, and NL's reliance on the case is typical of the 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." A valid claim of privilege 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 such privilege has ever been recognized by the federal courts. West Point Pepperell, Inc., 81 OSAHRC 47/A2, 9 BNA OSHC 1784, 1793, 1981 CCH OSHD І 25,356 at p. 31,487 (No. 77-4297, 1981). It is not surprising that NL cited no authority to support this claim of privilege.[[10]]

The majority finds that the judge did not give adequate consideration to the burden the Secretary's discovery request imposed on NL. However, NL's "burdensomeness" objection was patently insufficient to raise an issue that required serious consideration. Most, if not all, of the Secretary's interrogatories either asked for NL to produce certain business records or asked for information that could be gathered from its business records. Furthermore, most of the interrogatories sought information only about the Beech Grove plant, a relatively small facility with approximately 50 employees. As the majority notes, NL is a large company, among the largest in the country. Presumably, it maintained its business records in some sort of orderly manner. If this was not the case, NL's objections should have indicated the condition of its records and why the interrogatories would be unduly burdensome. But NL's unsupported assertion that production would be "burdensome" gave the judge no basis to deny discovery of unquestionably relevant material.[[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, 83 F.R.D. 260 (N.D. Ill., 1979); Moore's Federal Practice, ї 33.27 (2d ed., 1970).

Moreover, any burden on a party called upon to retrieve information from business records is greatly alleviated by the procedure permitted by Rule 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 an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, including a compilation, abstract or summary thereof, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer must be ascertained.

Thus, in order to answer those interrogatories that required production of either business records or information that the Secretary could have gleaned from the records as easily as NL, all NL had to do was specify the records containing the answers and offer the Secretary a reasonable opportunity to examine the records. As events showed, the Secretary was fully agreeable to such a procedure, and was willing to travel to 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's order by supplying an "index" to documents that purportedly contained the information sought by the Secretary. I will have more to say about that "index" later. For now, it is enough to observe that NL's objection, and the majority's agreement, that answering the interrogatories would be unduly burdensome is unsupported by the record and ignores the fact that any burden to NL could have been largely 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 denied that engineering or administrative controls to reduce lead exposure were technologically or economically feasible. Interrogatory 7 essentially asked NL if it continued to maintain this position. If NL answered Interrogatory 7 in the affirmative, then Interrogatory 8 asked for information concerning specific controls NL believed were infeasible and for any supporting calculations, figures, and documentation NL used to reach that conclusion.

NL objected to this interrogatory, stating:

NL objects to the attempt by OSHA to require NL to identify possible controls which have not been utilized. This inquiry attempts an improper shift of the burden statutorily imposed upon OSHA to demonstrate the feasibility of specific controls. NL's judgment or speculation as to what engineering controls may not be feasible has no bearing on OSHA's independent duty to assess and prove what engineering controls are feasible. Moreover, NL cannot reasonably be expected to identify controls which are believed to be "not technologically or economically feasible." This requires NL to speculate regarding future inventions which have not 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. The first part of the objection -- that the request improperly shifts the Secretary's burden of proof -- ignores one of the basic purposes of discovery: that the party with the burden of proof may need to obtain information from the opposing party to satisfy that burden. It also ignores the fact that NL raised infeasibility as a defense, and a party is obviously entitled to use discovery to learn the factual basis of its opponent's defenses.

The latter part of the objection is an attempt to give the objection respectability by misstating what the interrogatory asks. The interrogatory in no sense asks NL to speculate on future inventions; it asks NL to identify controls it has concluded are not feasible. If NL has done studies and has drawn conclusions that certain controls are not feasible, it need only identify those controls. If it has not done such studies, it need only give that information.

NL raised other objections to certain of the interrogatories, but no purpose would be served by an elaborate examination of all its objections; all the other objections are similarly lacking in merit. See supra note 9. But this rather understates the point. When one examines NL's objections in their entirety, a pattern emerges; not only are the objections not meritorious, but they lack any factual or legal support to the point that I conclude they could not have been made with the 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 current posture: (1) Did the judge abuse his discretion in ordering NL to answer the Secretary's interrogatories; and (2) If the judge did not abuse his discretion, were NL's answers adequate. In view of the majority decision I do not reach the question whether the sanctions 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]] The judge was required to balance the Secretary's need for discovery, the burden to NL, and any delay in the proceedings discovery would create. KLI, Inc., 77 OSAHRC 202/A2, 6 BNA OSHC 1097, 1977-78 CCH OSHD І 22,350 (No. 13490, 1977). The interrogatories unquestionably sought relevant information, and the Secretary's need for discovery, in light of the nature of the issues presented, was obvious. NL raised no colorable argument that production would be unduly burdensome 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 to comply. The judge also recognized that the nature of the case required that any unnecessary delay be avoided. That the judge chose to attempt to avoid delay by requiring the parties to comply with reasonable time limits is hardly an abuse of discretion; it is in fact required by Commission Rule 53(b).[[13]]

The majority concludes that the judge erred in permitting the interrogatories over NL's objections. In the majority's view, a judge should look with disfavor on "broad, open-ended" discovery requests and should keep the discovery process within reasonable bounds. While I agree that the judge should keep control of the discovery process, he must do so with the objectives of discovery in mind.

Discovery often requires a litigant to disclose to the opposition information that can be adverse, even devastating, to its position in the litigation. Obviously, no litigant enjoys doing this, and a party can be expected to avoid disclosing damaging information if there is any legitimate way to do so. Thus, discovery requests must be framed in a manner that does not let the party from whom discovery is sought selectively decide what to turn over and what to withhold. See Rozier v. Ford Motor Co., 573 F.2d 1332, 1346 (5th Cir. 1978). If a party frames his discovery requests narrowly, he runs the risk that the opposing party can literally comply with the request while withholding particularly damaging information. Thus, by their nature, discovery requests must be broadly framed. The Secretary's interrogatories, while broad, sought information that was unquestionably relevant to this case. In the absence of any objections of colorable merit, the judge did not abuse his discretion in granting the request in full.

The majority also faults the judge for ruling on the Secretary's motion to compel answers without giving NL ten days to respond to the motion. The majority ignores the fact that the judge acted pursuant to a procedure to which all parties, including NL, had agreed. At the preliminary hearing, it was agreed that the Secretary would file interrogatories, that NL would file its objections, and that the judge would then rule on the objections. After the Secretary filed the interrogatories, NL's counsel sent the judge a telegram informing him that the objections would be filed shortly and asking him not to rule until he received the objections, demonstrating NL's understanding that the interrogatories themselves were the motion to compel. After NL filed 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 it was understood that the objections NL had previously filed were in fact its response to the motion to compel, the judge was justified in ruling on the interrogatories before the ten-day response period to the formal motion had elapsed. Moreover, NL's response to the formal motion simply reiterated the same objections it 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 carefully weighing NL's arguments. But this completely overlooks the fact that the judge held a hearing on October 25, 1979, for the explicit purpose of determining whether NL had complied with discovery. NL was present and had every opportunity to renew its objections to discovery requests and to argue against sanctions. NL produced witnesses who had purportedly attempted to compile information to respond to discovery. Certainly the judge did weigh NL's arguments for in his decision in this case he extensively documented instances where he found NL had acted in bad faith in responding to requests for discovery. There is no requirement that a judge issue a written decision on preliminary procedural matters. The Act requires only that the judge issue a report of the "final disposition of the proceedings." 29 U.S.C. ї 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 order requiring answers to the interrogatories.[[15]] The judge's order, issued on April 24, gave NL until June 15 to answer. On June 15, NL submitted a motion for an extension of time to August 15, saying: "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 not yet been completed. . . ."

The majority states that the judge did not rule on NL's motion for an extension. But that is true only in form, not in substance. The judge did not hold NL to the June 15 date for submitting answers, but ultimately extended the date to October 20, more than four months later. During two of those months, the proceedings were 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 to NL's obligations under the judge's order.[[16]] The agreement was recorded in a letter from the Secretary's counsel to NL's:

1. October 20, 1979 - Respondent will complete and submit answers to Complainant's First Set of Interrogatories;
2. October 20, 1979 - Respondent will submit to Complainant a document list identifying those documents which will be produced in response to Complainant's discovery request;
3. October 20, 1979 - Complainant will submit supplementary documents and 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 those documents which Respondent produces in response to Complainant's discovery and Judge Riehl's Order regarding said discovery. The inspection of documents will take place at Respondent's Hightstown, New Jersey facility. Respondent agrees to provide true and correct copies of any document requested by Complainant and Complainant agrees to reimburse Respondent for the costs of providing said copies. In light of Respondent's refusal to discuss the type of documents to be produced and the interrogatory to which said document relate, Complainant takes no position as to whether or not said production complies with Judge Riehl's Order nor does Complainant take any position as to the appropriate party who should bear the expense entailed in travel to New Jersey for the inspection and copying of documents.
6. November 19, 1979 - During this week Knowlton Caplan will be allowed to enter and inspect 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. The response consisted almost entirely of a 29 page "index" which purported to identify documents that NL would make available for the Secretary to examine. The first page contained a list of NL plants, with numerical entries for "Records at Hights(town)" and "Records at Plant." For example, for Beech Grove the page listed 18 records at Hightstown and one at the plant. The list also contained a special notation for Beech Grove at the bottom of the "Records at Hights(town)" column: "3 - in transit." For all of the plants, there were listed a total of 191 records at Hightstown (including the 3 from Beech Grove "in transit"), and 63 records at the various plants.[[18]]

The remaining 28 pages is a handwritten, partially illegible list purporting to characterize the contents of various boxes and drawers of records at Hightstown. Apparently, there is supposed to be some correlation between this list and the "Records at Hights(town)" on the first page. Any such correlation, however, is completely obscure, for while the first page indicates that NL has a certain number of records relating to each plant, the boxes and drawers in the remaining 28 pages are either not identified by plant or they have documents from more than one plant in them. Even more important, most of the references on the list 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 Cards
Fringe Benefit Cards

Box G   Employee History Records
Benefit Cards - St. L. Park, Cleveland,
Southern

Box H W/C - Cleveland - 1977
" - St. Louis Pk. - 1977
Hgt Injury Logs 75,76
Misc. Benefit Cards
History Records
Disciplinary Logs - St. L. Pk - 77,78

Box I Employee History Records

Not all of the references in the list are to irrelevant material. Scattered throughout are references to topics such as OSHA, Safety, Lead in Air, blood leads, and medical records. But most of the entries refer to documents that cannot be considered within the scope of the interrogatories.[[19]]

NL brought to the sanctions hearing the people who had anything to do with preparation of its answers. The 28-page list was prepared by Patty Dollar, who was administrator of compensation and benefits for the Metal Division and worked at the Hightstown plant. She stated that records of closed plants were transferred to Hightstown. She went through the records at Hightstown and characterized the type of documents the file contained. She stated: "I did not go through each of the files. What I did was I reviewed basically what was in one box; if they were Workers comp cases in half the box and disciplinary records in the other half of the 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 of documents the Secretary was seeking. She was not told to look for records of chelation treatment or lead poisoning.

At the sanctions hearing, Ms. Dollar produced another 15 page, mostly handwritten list describing records remaining at Beech Grove. As did the other list, this list described the contents of numerous boxes, drawers, file cabinets, and bookcases of 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. However, NL's original submission indicated that almost all of the Beech Grove records had been transferred 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 in charge of workmen's compensation at Beech Grove. Wentz answered in the affirmative when asked by the judge whether records relating to lead poisoning were kept in specific drawers. Counsel for NL then stated that, when Wentz left NL, counsel requested that Wentz's records be segregated and sent to his office. Counsel stated that he had gone through Wentz's files and found numerous studies, surveys, or tests for the purpose of abatement in them. Counsel then sent those records to Ms. Dollar "for safe keeping." In NL's answer to the interrogatories, the only reference to these documents was the notation that three Beech Grove records were "in transit" to Hightstown. There was no indication of the nature of these records, despite the fact that they obviously contained information that the Secretary was seeking.

Thus, as nearly as can be gleaned from this record, NL's efforts to answer the interrogatories consisted of the following. Wentz reviewed his records at Beech Grove and prepared three boxes of documents that were highly relevant. These boxes were not supplied to the Secretary, nor was the Secretary even informed they existed. Instead, NL supplied the Secretary with cryptic lists summarizing all of the records NL currently had at Hightstown, whether or not relevant to the case, and indicating that other records were scattered throughout the country, some at plants that NL no longer owned. The lists were simply the most general summaries of the types of documents in various boxes and file drawers, and were prepared by persons who had no idea what type of information was being sought.[[20]] The only reference to the three boxes which counsel knew contained relevant material was that three "Beech Grove" records were "in transit." Beyond that, the information given to the Secretary stated that only one "record" remained at Beech Grove, but it later developed that numerous records were still at the Beech Grove plant at the time of the sanctions hearing. Thus, the information supplied in response to the interrogatories was inaccurate as well as incomplete. It was also not responsive to the interrogatories.

As I stated above, when answers to interrogatories can be derived from a party's business records, Rule 33(c) permits the party the option of permitting the other party a reasonable opportunity to examine those records. However, for such an answer to be sufficient, the party must specify the record from which the answers may be derived, and the "specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained." The party required to answer "may not impose on an interrogating party a mass of records as to which research is feasible only for one familiar with the records." Notes of Advisory Committee on Rules, Fed. Rules Civ. Proc. Rule 33, 28 U.S.C.A. at 322. Instead of giving the Secretary an index that would facilitate his review of the documents, NL hid the relevant material within a vast amount of irrelevant documents so as to make the Secretary's examination of the documents unmanageable. Measured by the requirement of Rule 33(c), NL's "index" was completely inadequate. NL did not answer the interrogatories, but simply invited the Secretary to a 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 who violate their orders. TRG Drilling Corp., supra; Pittsburgh Forgings Co., 82 OSAHRC 14/D13, 10 BNA OSHC 1512, 1982 CCH OSHD І 25,974 (No. 78-1361, 1982); Wheeling-Pittsburgh Steel Corp., 4 BNA OSHC 1788, 1976-77 CCH OSHD І 21,213 (No. 5784, 1976); William Enterprises, 79 OSAHRC 24/A2, 4 BNA OSHC 1663, 1976-77 CCH OSHD І 21,071 (No. 4533, 1976); Hoerner Waldorf Corp., supra. Rule 37(b) of the Federal Rules of Civil Procedure lists sanctions that may be imposed on a party who fails to comply with a discovery order. Those sanctions include the rendering of a default judgment against the disobedient party.[[21]] Such a sanction should only be imposed in extreme circumstances: when the noncomplying party's conduct has been contumacious or when the opposing party is prejudiced in the preparation or presentation of its case. 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 the flagrant bad faith of the party); Noranda Aluminum, Inc., 80 OSAHRC 128/B2, 9 BNA OSHC 1187, 1981 CCH OSHD І 25,086 (No. 79-1059, 1980) (dismissal for violation of discovery order inappropriate in absence of contumacious conduct or prejudice to opposing party). If the Commission refuses to impose sanctions when a party's failure to comply with a discovery order is either contumacious or acts to prejudice the opposing party, that party will profit from its own wrongdoing and gain an unfair advantage unrelated 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 opposing party in the preparation or presentation of its case, the advantage gained is obvious. The advantages that a party can gain by obstructing discovery can only be counteracted by subjecting 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. Additionally, the record demonstrates that NL's conduct prejudiced the Secretary's case.

At the time this case arose, NL's Beech Grove plant was an ongoing operation. On June 15, 1979, the date by which NL was originally supposed to answer the interrogatories, the Beech Grove plant was still in operation. By the time NL filed its "answers" to the interrogatories, the plant was shut down and its records had been scattered: some remained at Beech Grove, others were at Hightstown, and yet others were "in transit." Giving the Secretary the opportunity to examine the records only after they had been scattered and intermingled with all of NL's corporate records clearly prejudiced the Secretary's ability to reconstruct what had been occurring at Beech Grove.

Furthermore, the Secretary was seeking throughout the discovery process to have his expert conduct a discovery inspection of the Beech Grove plant. However, before such an inspection could be meaningfully conducted, the expert required the blueprints of the plant and certain other information that the Secretary had requested through the interrogatories. At the time he filed the interrogatories, the Secretary informed NL that he needed this information before the discovery inspection could be conducted. Although NL purported to be willing to cooperate with the Secretary in scheduling a discovery inspection, it did not supply the documentation it knew the Secretary needed before the inspection could be conducted. Instead, NL was planning to close the plant, and it only agreed with the Secretary to schedule the discovery inspection after the plant was closed. Obviously, a discovery inspection of a plant that was shut down would be useless.[[23]]

CONCLUSION

The printed record of a case can never convey the entire flavor of the proceedings before a trial judge. For that reason, reviewing tribunals necessarily give great deference to those rulings by a trial judge that are based, at least in part, on observations that the trial judge is in a unique position to make. See C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1297, 1977-78 CCH OSHD І 22,481 at p. 27,099 (No. 14249, 1978) (Commission will normally accept a trial judge's evaluation of the credibility of witnesses, "for it is the Judge who has lived with the case, 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 of discovery. He was in a unique position to evaluate whether NL had, as it alleged, made efforts to comply with his discovery order. The judge concluded that NL had not acted in good faith throughout the discovery process and detailed his reasons for reaching this conclusion. I would not reverse him as to the imposition of sanctions.

The Administrative Law Judge decision in this matter is unavailable in this format. To obtain a copy of this document, please request one from our 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 company during the course of this litigation.

[[2]] Chelation therapy involves the use of certain drugs, referred to as chelating agents, to remove metallic lead from a person's bloodstream.

[[3]] Section 17(a) of the Act, 29 U.S.C. ї 666(a), provides that a penalty of up to $10,000 may be assessed for willfully or repeatedly violating the Act. Section 17(d), 29 U.S.C. ї 666(d), states that a penalty of up to $1000 per day may be assessed if an employer fails to abate a violation within the period permitted for its correction. The Secretary proposed the maximum permissible statutory penalties of $10,000 for each of the willful or repeat items. For NL's alleged failure to abate the 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 closing date of the inspection, September 1, 1978. At the hearing on these citations, following the judge's sanctions order against NL, the Secretary moved to amend the failure to abate penalty to include the period from September 1, 1978 to October 1, 1979, the date the plant was closed. The Secretary's motion proposed a penalty of $1000 per day for this additional period as well as for the original 31-day period. Thus, the ultimate proposed penalty for the alleged failure to abate totaled $426,000. The judge granted the motion to amend and ultimately assessed the penalties proposed by the Secretary totaling $536,000: $426,000 for the failure to abate and $110,000 for the other citations.

Because of our disposition, we do not decide whether the judge erred in granting the Secretary's motion to amend at this time.

[[4]] Commission Rule 37, 29 C.F.R. ї 2200.37, provides that any party upon whom a motion is served shall have ten days to file a response. On April 19, the Secretary served its motion on NL by certified mail. Pursuant to Rule 4(b), 29 C.F.R. ї 2200.4(b), regarding service by mail, NL would have been entitled to an additional three days to file its response.

[[5]] In this respect, the Commission's rules differ from the Federal Rules of Civil Procedure, which permit a party to serve interrogatories on another party without leave of court and favor broad-based pretrial discovery. Fed. R. Civ. P. 33(a).

[[6]] We do not decide whether the interrogatories were proper. If the Secretary desires further answers to his interrogatories, the judge on remand should rule on the appropriateness of the Secretary's request. In ruling on issues of this nature, we note that a prehearing conference on discovery disputes often provides a mechanism to keep the discovery process within reasonable bounds. See Commission Rule 51, 29 C.F.R. ї 2200.51; Fed. R. Civ. P. 26(f).

[[7]] Commission Rule 54, 29 C.F.R. ї 2200.54, provides:

ї 2200.54 Failure to comply with orders for discovery.

If any party or intervenor fails to comply with an order of the Commission or the Judge to permit discovery in accordance
with the provisions of these rules, the Commission or the Judge may issue appropriate orders.

We do not decide whether the "appropriate orders" authorized by this rule include the type of sanctions order the judge issued in this case. Assuming 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. її 659(a) and (c).

[[2]] 29 U.S.C. ї 657(a).

[[3]] 29 U.S.C. її 658(a) and 659(b).

[[4]] For example, the question arises in toxic substance cases whether the measurements of employee exposure the Secretary makes during an inspection are representative of the exposures that normally occur in the employer's workplace. See Duquesne Light Co., OSHRC Docket No. 79-1682 (June 29, 1984) (in case where Secretary measured asbestos exposures exceeding the limits of the asbestos standard, the majority vacated certain items and found others not to be serious in nature because the Secretary failed to prove the measured exposures were representative); Hermitage Concrete Pipe Co., 82 OSAHRC 14/A2, 10 BNA OSHC 1517, 1982 CCH OSHD І 25,975 (No. 4678, 1982) (exposures to excessive silica dust measured by the Secretary assumed to be representative, but employer permitted to rebut presumption). In this case, NL's counsel stated at the preliminary hearing that the Secretary's inspection had occurred during the "shakedown period," when the controls NL had installed to abate the 1976 violation were not yet fully effective. NL was thus contending that the conditions observed during the inspection, and the measurements of employee exposure that were made, did not accurately represent the efforts NL had taken to abate. This assertion is relevant to numerous issues in the case, including whether NL had made a good faith attempt to abate and whether the penalties proposed by the Secretary were appropriate. Obviously, in order to intelligently litigate the case, the Secretary would have to obtain an accurate picture of the lead exposures at Beech Grove and of NL's efforts to reduce those exposures over a considerable period of time. Just as obviously, the Secretary could only obtain this information from NL itself.

[[5]] Elevated blood lead levels can cause numerous adverse health effects. At sufficiently high levels, death can result. At lower levels, a person can suffer irreversible brain damage, kidney failure, or damage to the reproductive system. Less drastic effects include anemia, 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 blood lead levels as a substitute for lowering the amount of lead to which persons 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 not begin to run until the entry of a final Commission order affirming the citation. 29 U.S.C. ї 659(b).

[[8]] NL was first cited by the Secretary in 1973 for failing to use feasible engineering and administrative controls to reduce the exposure of its employees to lead and for failing to implement an adequate program for the use of respirators. It did not contest those citations and they became final orders of the Commission. In 1976, OSHA again inspected the Beech Grove plant and found that employees were still exposed to excessive lead. NL was cited for repeatedly failing to use feasible engineering and administrative controls and for other violations arising out of the 1976 inspection, and NL withdrew its notice of contest to those citations as part of the settlement agreement approved by Judge Dixon. Thus, by the time of the inspection that led to this case, NL already had a substantial history of noncompliance with the standards regulating employee exposure to excessive lead.

[[9]] It is noteworthy that Marshall v. Barlow's was the only case NL cited in all of its numerous objections to the interrogatories. It is also noteworthy that, in arguing to the Commission that the judge's order requiring it to answer the interrogatories was improper, NL does not rely on any of the numerous objections it raised before the judge in opposition to the interrogatories. NL apparently fully realizes the lack of merit in those objections.

[[10]] In West Point Pepperell, the employer, whose plant was located in Georgia, relied on a Georgia statute that established a state physician-patient privilege. The Commission rejected the argument on the basis that a privilege arising under state law is inapplicable to a proceeding governed by substantive federal law. However, the issue West Point Pepperell had raised was a serious one, was supported by citation to authority, and deserved careful consideration. By contrast, NL's reliance on a nonexistent privilege, unsupported by citation to any authority, merited no serious consideration.

In West Point Pepperell, the employer also objected to producing employee medical records on the basis that such production would violate its employees' right to privacy. The Commission held that this objection had merit, and that any order requiring production of employee records would have to protect the employee's right to privacy. On review, NL relies on this aspect of the Commission's decision in West Point Pepperell in arguing that the judge's unqualified order requiring disclosure of medical records was erroneous. However, NL never raised the right to privacy issue before the judge, only the physician-patient privilege issue. The judge cannot be found to have abused his discretion for failing to rule on an objection that NL did not make before him.

[[11]] NL's motion for an extension of time to answer the interrogatories asserted that "papers submitted in support of NL's objections to the interrogatories detail the magnitude (sic), breath (sic), and burdenness (sic) of the task entailed." In fact, NL submitted no papers with its objections detailing these factors; NL simply asserted without elaboration that the interrogatories were burdensome.

[[12]] The Act provides that, unless the Commission has adopted a different rule, its proceedings shall be in accordance with the Federal Rules of Civil Procedure. 29 U.S.C. ї 661(f). The Federal Rules of Civil Procedure contain comprehensive rules governing discovery. Those rules basically provide for discovery to be conducted extrajudicially in the absence of a dispute between the parties. See Forte Brothers, Inc., 80 OSAHRC 111/E7, 9 BNA OSHC 1065, 1980 CCH OSHD І 24,909 (No. 79-5655, 1980). The Commission's procedural rules contain limited, but not comprehensive rules on discovery. The Commission has long
recognized that discovery in our proceedings is governed by the Federal Rules of Civil Procedure to the extent it is not governed by specific Commission rules. Reynolds Metals Co., 78 OSAHRC 51/F1, 3 BNA OSHC 1749, 1975-76 CCH OSHD І 20,214 (No. 4385, 1975).

[[13]] Rule 53(b) provides: "In the event the Commission or the Judge grants an application for the conduct of [discovery depositions or interrogatories], the order granting the same shall set forth appropriate time limits governing the discovery."

[[14]] On review, NL contends that the sanctions order was improper because the Secretary never made a motion to compel answers pursuant to Rule 37(a) of the Federal Rules of Civil Procedure. This argument is frivolous. The Secretary did move to compel answers, and NL never argued to the judge that his order compelling answers was not issued in response to a proper motion. Moreover, as discussed above, the parties understood that the Secretary would file interrogatories, NL would file objections, and the 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 will ultimately prevail, its failure to comply with a discovery order is not an indication of bad faith. See Newport News Shipbuilding & Drydock Co., 80 OSAHRC 119/A2, 9 BNA OSHC 1085, 1980 CCH OSHD І 24,003 (No. 76-171, 1980). But a party who fails to comply must be prepared to accept the consequences of its noncompliance if its arguments do not ultimately prevail.

[[16]] The majority criticizes the judge for failing to evaluate the adequacy of the initial answers NL had submitted to the interrogatories to which it had not objected. Whether those answers were adequate is not and never was an issue in the case. The judge's order required NL to answer all of the interrogatories, and NL could not comply by submitting a few documents of its own selection. Moreover, not even NL has argued that its initial answers to certain interrogatories bear in any way on the 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 aware that the plant had either already been closed or that its closure was imminent. NL's agreement to allow the Secretary to conduct a discovery inspection of a plant it knew would be closed when the inspection was to be conducted is representative of NL's litigation tactics in this case.

[[18]] When it filed its "answers" to the interrogatories, NL stated that it would make all of the records referenced therein available for the Secretary's inspection. At the same time, NL asserted that certain of the plants that contained referenced documents had been sold and were therefore no longer under NL's possession or control. NL did not state how it would make documents which were not in its possession or control available for the Secretary to inspect.

[[19]] NL's argument in its brief on review that the interrogatories requested material such as EEO (equal employment opportunity) complaints is frivolous. The interrogatories plainly requested only information pertaining to lead.

[[20]] The lists were primarily prepared by Ms. Dollar, but not all the lists are in the same handwriting. Ms. Dollar explained that some of the information had been provided her by people at the different plants.

[[21]] Commission Rule 54, 29 C.F.R. ї 2200.54, provides: "If any party or intervenor fails to comply with an order of the Commission or the Judge to permit discovery in accordance with provisions of these rules, the Commission or the Judge may issue appropriate orders." Because the Commission has a specific rule governing sanctions for failure to comply with discovery orders, Rule 37(b) does not directly apply. Indeed, because Rule 37(b) includes the authority to hold a disobedient party in contempt of court, that rule cannot apply directly to Commission proceedings, for the Commission lacks contempt power. Nevertheless, the sanctions listed in Rule 37(b) that are within the Commission's authority to impose, including a default judgment, are obviously the type of sanctions Commission Rule 54 contemplates.

[[22]] Sanctions also serve the purpose of deterring other parties from engaging 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 installed all of the controls required by Judge Dixon's order approving the settlement of the 1976 citations. NL has also contended that the 1978 inspection occurred during the "shakedown period" when these controls were not yet fully effective. See supra note 4. The Secretary's inability to conduct a meaningful discovery inspection would obviously prejudice his ability to rebut these contentions.