N.L. Industries, Inc.

Plain-English summary

OSHA alleged that N.L. Industries failed to abate excessive lead exposure and committed additional respiratory, sanitation, chelation, and lead-exposure violations at a secondary lead smelter. After N.L. Industries resisted broad discovery requests, the judge struck its defenses, entered default on liability, barred it from presenting its own evidence, and assessed $536,000 in penalties. The Commission held that the judge had not adequately balanced the Secretary's need for discovery against the burden and breadth of the requests. It also found that N.L. Industries should have been allowed to clarify its document index before the scheduled inspection of records. The Commission set aside the sanctions and decision and remanded for further proceedings before the chief judge. Commissioner Cleary dissented, concluding that the company's discovery conduct was obstructive and justified sanctions.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1), 29 C.F.R. § 1910.134, 29 C.F.R. § 1910.141, and 29 C.F.R. § 1910.1000(e)
• Outcome: Discovery sanctions and merits decision set aside; case remanded.
• Key point: Before compelling broad discovery or imposing case-ending sanctions, a Commission judge must weigh need, burden, delay, and the adequacy of the party's actual production efforts.

Full text (OSHRC public release)

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. � 661(i), of the Occupational Safety and Health Act
of 1970, 29 U.S.C. �� 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. � 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. � 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. � 1910.134;
three items for willful-serious violations of 29 U.S.C. � 654(a)(1), the general duty
clause of the Act, alleging deficiencies 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. � 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 � 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 � 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 � 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 � 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 , � 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 � 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. � 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 � 25,974 (No. 78-1361, 1982); Wheeling-Pittsburgh
Steel Corp ., 4 BNA OSHC 1788, 1976-77 CCH OSHD � 21,213 (No. 5784, 1976); William
Enterprises , 79 OSAHRC 24/A2, 4 BNA OSHC 1663, 1976-77 CCH OSHD � 21,071 (No. 4533,
1976); Hoerner Waldorf Corp ., supra .  Rule 37(b) of the Federal Rules
of Civil Procedure lists sanctions that may 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 � 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 � 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. � 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. � 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. � 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. � 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.
� 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 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. �� 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 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 � 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.
� 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. � 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 � 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 � 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 � 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. � 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.