Exterior Insulation & Stucco, Inc.

Plain-English summary

Exterior Insulation & Stucco did not answer the Secretary's discovery requests until a judge ordered it to do so. Its eventual responses omitted witnesses, financial information, and the factual basis for its denials, and repeatedly promised information later instead of providing it. Chief Judge Irving Sommer treated the evasive and incomplete answers as a failure to comply with the compel order, dismissed the employer's contest and answer, and affirmed all citations and penalties; the official release does not identify the cited standards or amounts.

Decision snapshot

• Cited standard(s): None identified in the official release.
• Outcome: Contest and answer dismissed; citations and penalties affirmed in full.
• Key point: Evasive or incomplete discovery answers count as a failure to answer and can support default judgment after a clear compel order.

Full text (OSHRC public release)

                    UNITED STATES OF AMERICA
        OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC DOCKET NO. 99-0710
:
EXTERIOR INSULATION & :
STUCCO, INC. :
:
Respondent. :

                                          ORDER

   The Secretary has filed a motion to dismiss Respondent’s notice of contest. In support of her

motion, the Secretary notes that she filed her First Set of Interrogatories and Request for Production
of Documents and Request for Admissions on June 29, 1999, and that although Respondent was to
answer the requests by August 9, 1999, it failed to do so. The Secretary also notes that she filed a
motion to compel discovery on August 11, 1999, and that the order granting her motion, issued
September 3, 1999, stated that if "proper, fully responsive replies" were not timely received, then
Respondent’s contest and answer would be dismissed and the citations and penalties affirmed
without need for the Secretary to file another motion.
The Secretary received Respondent’s responses on September 14, 1999. However, as the
Secretary contends, the responses are evasive and incomplete and do not comply with my order or
the Commission’s Rules of Procedure. For example, in response to the interrogatory requesting the
identity of all persons having knowledge of the facts relating to the cited allegations and the
substance of their knowledge, Respondent provided only the name and address of its president and
none of the names and addresses of the employees at the site, stating that those would "be provided
upon receipt of same."1 In response to the interrogatories asking for its gross and net revenues since
January 1, 1996, Respondent provided copies of its tax returns for 1996 and 1997 but nothing for
1998. In the interrogatories requesting the factual basis, in detail, of its denials that the alleged

   1
    Respondent gave no information about the substance of the knowledge of employees.

2

violations occurred and that they could have caused serious injuries, Respondent’s answers were that
it "did not commit the allegations," that the "facts upon which the inspector relied ... [were]
erroneous," and that it "complied with the OSHA regulations." Many of Respondent’s answers refer
to prior responses, which, as the Secretary points out, were inadequate in the first place, and several
state only that information will be provided or supplied.
The foregoing are merely examples of the inadequacy of Respondent’s answers, and my
review of all of the responses set out in the Secretary’s motion convinces me that Commission Rule
of Procedure 52(e) applies in these circumstances. That rule states as follows:
Failure to cooperate; Sanctions. A party may apply for an order compelling
discovery when another party refuses or obstructs discovery. For purposes of this
paragraph, an evasive or incomplete answer is to be treated as a failure to answer. If
a Judge enters an order compelling discovery and there is a failure to comply with
that order, the Judge may make such orders with regard to the failure as are just. The
orders may issue upon the initiative of a Judge, after affording an opportunity to
show cause why the order should not be entered, or upon the motion of a party. The
orders may include any sanction stated in Fed.R.Civ.P. 37, including the following:
... (4) An order dismissing the action or proceeding or any part thereof, or rendering
a judgment by default against the disobedient party.
In considering this matter, I note that Respondent did not answer the Secretary’s discovery
requests until it was compelled to do so. I note further that when it did answer, the responses, as set
out above, were evasive and incomplete. Finally, I note that although 30 days have now elapsed
since the Secretary filed her motion to dismiss, Respondent has not filed any reply. Based upon my
order of September 3, the Secretary’s motion, and the language of Rule 52(e), supra, Respondent’s
contest and answer are DISMISSED and the citations and penalties are AFFIRMED in all respects.2
So ORDERED.

                                                   Irving Sommer
                                                   Chief Judge

Date:1 NOV 1999

   2
    See also Commission Rule 41(a).