SECRETARY OF LABOR,
Complainant,

v.

GENERAL MOTORS CORPORATION,
DELCO PRODUCTS DIVISION,
Respondent.

OSHRC Docket No. 78-5476

DECISION

Before:  ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
BY THE COMMISSION:

In this case, Administrative Law Judge David J. Knight vacated a citation item alleging that General Motors Corporation, Delco Products Division violated the noise standard at 29 C.F.R. § 1910.95(b)(1).[[1]]  The judge decided that the Secretary of Labor failed to prove the feasibility of engineering controls which the Secretary believed General Motors should have implemented in its Delco Products facility in Rochester, New York.  The Secretary filed a petition for review in which he contended that his failure to prove feasibility was caused by his inability to obtain a discovery inspection of General Motors' facility.  The Secretary argued that Judge Knight had abused his discretion when, several weeks prior to the hearing, the judge had denied the Secretary's motion to compel the discovery inspection.  The Secretary therefore argued in his petition for review that the judge's decision should be reversed and the case remanded.

The Secretary's petition for review was granted by Commissioner Cottine pursuant to 29 U.S.C. § 661(i). For the following reasons, we conclude that the judge abused his discretion in denying the Secretary's discovery and we remand the case for further proceedings consistent with this opinion.

I
The Secretary issued the citation in this case in late October 1978 and the parties filed their pleadings in January 1979. The case was assigned to Judge Knight, who scheduled it for hearing on May 9, 1979.

On April 11, 1979, the Secretary submitted a written request to General Motors for a "discovery inspection by an expert retained by complainant to examine cited areas to confirm the existence of feasible administrative or engineering controls."  The request stated that the inspection could be at a "mutually convenient time."  On April 25, 1979, the Secretary asked the judge to postpone the scheduled hearing because of a trial scheduling conflict and the need for additional time for discovery.  Judge Knight granted the request, rescheduling the hearing for July 25, 1979.  At this time the judge stated that no further continuances would be allowed except "for extraordinary reasons."

General Motors did not file a written response to the Secretary's written request for the discovery inspection.  On May 15, 1979, the Secretary filed a second request for entry at a "mutually convenient time."  In this request the Secretary stated that the name of the expert would be provided "as soon as that person has been identified."  On June 22, 1979, the Secretary wrote to General Motors requesting a response to his request for entry.  The Secretary informed General Motors that he would file an appropriate motion if a response was not received by June 29, 1979.  Because the Secretary did not receive a response to any of his requests, the Secretary filed a motion asking the judge to compel General Motors to allow the requested discovery "on the soonest mutually convenient date."  This motion was filed on July 2, 1979.

On July 10, 1979, Judge Knight issued his order denying the motion to compel.  He reasoned that the Secretary had known of the need for discovery since April 1979, but waited until near the scheduled hearing date to file the motion.  The judge noted that, when he had rescheduled the hearing, he had expressly prohibited further postponements.

At the hearing on July 25, 1979, the Secretary renewed his motion to compel but, when the judge reiterated his denial, the Secretary presented the evidence which he had been able to prepare.  At the close of his evidence, the Secretary asked for a one-day postponement to obtain more evidence.  Judge Knight denied this request as coming too late.  General Motors then moved to dismiss the Secretary's case for insufficient proof.  When Judge Knight granted the motion, the hearing record was closed.

In his petition presenting the contention that the judge abused his discretion in denying the discovery inspection, the Secretary argues that he suffered substantial prejudice through denial of the discovery, that General Motors would not have been prejudiced if the discovery had been allowed, and that there had been no undue delay in the proceedings.  General Motors filed an opposition to the Secretary's petition in which General Motors argues that the judge properly exercised his authority to deny the discovery.

II

In Del Monte Corp., 81 OSAHRC 78/A2, 9 BNA OSHC 2136, 1981 CCH OSHD ¶ 25,586 (No. 11865, 1981), the Commission stated:

The decision whether to allow discovery is within the judge's sound discretion.  This sound discretion should be guided by the objective of providing a fair and prompt hearing to the parties.  Moreover, the judge should consider the need of the moving party for the information sought, any undue burden to the party from whom discovery is sought, and, on balance, any undue delay in the proceedings that may occur.   Given the judge's broad discretion, a judge's disposition of discovery matters is reversible only if the judge's actions constitute an abuse of discretion resulting in substantial prejudice.

Discovery inspections, however, are ordinarily permissible where a violation of the noise standard is alleged.  . . . In allowing the Secretary discovery in noise cases, the Commission has recognized that the Secretary is authorized to issue a citation on less evidence than he may need to prove the existence of the violation.  Further, the Commission is cognizant that discovery by the Secretary in noise cases is critical, particularly to prepare expert testimony, for "[w]ithout expert testimony, it is doubtful that the Secretary can show the feasibility of engineering controls."

9 BNA OSHC at 2141, 1981 CCH OSHD at p. 31,915 (citation sentences omitted throughout the quote).  Moreover, the Commission has indicated that some protraction of the proceedings is justified when it occurs to obtain necessary discovery and that, if the Secretary has not been excessively dilatory or otherwise contumacious and needs additional time for such discovery, a denial of discovery can be an abuse of discretion.   See Del Monte Corp., supra; Federated Metals, Inc., 81 OSAHRC 58/A2, 9 BNA OSHC 1906, 1981 CCH OSHD ¶ 25,425 (No. 79-2255, 1981).

In this case, the Secretary sought the discovery inspection to prepare expert testimony about the feasibility of engineering controls for noise.  When the discovery was denied, the Secretary was unable to establish his case through expert testimony.  In ruling on General Motors' motion to dismiss for insufficient proof, the judge concluded that the Secretary had failed to prove the alleged noise violation.   However, the Commission has noted that, without expert testimony, it is doubtful that the Secretary would be able to satisfy his prima facie burden of establishing feasibility of abatement in noise cases.  See Del Monte Corp., supra; Ralston-Purina Co., 79 OSAHRC 81/E6, 7 BNA OSHC 1730, 1979 CCH OSHD ¶ 23,897 (No. 78-145, 1979).   Moreover, had the Secretary met his prima facie burden, it is questionable whether, without expert testimony, the Secretary's case would have been capable of withstanding rebuttal from General Motors.  Thus, the Secretary's need for the discovery was critical even though he was able to present some evidence.  Accordingly, the discovery should have been permitted unless General Motors would have suffered actual prejudice from allowing it or unless the Secretary's conduct throughout the proceedings was marked by excessive dilatoriness rising to the level of contumacy.  See Samsonite Corp., 82 OSAHRC 26/A2, 10 BNA OSHC 1583, 1982 CCH OSHD ¶ 26,054 (No. 79-5649, 1982); Del Monte Corp., supra; Federated Metals, Inc., supra.

General Motors does not claim that it has already suffered any prejudice from the Secretary's conduct in seeking the discovery. Also, although General Motors argued in the proceedings prior to this review that permitting the discovery near the scheduled hearing would have created scheduling problems for General Motors' attorneys and experts, and would have necessitated extra case preparation, such claims do not constitute legal prejudice.  The asserted inconveniences can be cured by a moderate continuance of the hearing date.  See Samsonite Corp., supra.

The remaining matter, then, is whether the Secretary's conduct in the proceedings was unduly dilatory to the point of contumacy.  In denying the Secretary's discovery, the judge decided that the Secretary had filed his motion to compel the discovery too late, near the date scheduled for the hearing.  However, the date for the hearing was only nine months after the citation issued.  Also, only three months had elapsed between the Secretary's first request for the discovery and the Secretary's motion to compel, and only a total of six months had elapsed from the pleadings to the motion.  Both parties had been active throughout the case.  The parties began discovery within a reasonable time after the pleadings were filed, and discovery continued until the hearing.  Thus, the proceedings in this case had not been protracted at the time when the judge denied the motion to compel discovery and declined to post-pone the hearing a second time.  There is an interest in prompt resolution of contested cases.  However, health cases can be complex and discovery relatively time-consuming without being unreasonable.  Thus, the need for discovery can justify an additional hearing postponement even when the judge has previously stated to the parties that any further postponements will be disallowed.  See Del Monte Corp., supra; Federated Metals, Inc., supra.

With the support of an affidavit filed by its attorney, General Motors claims that, subsequent to the Secretary's first request for the discovery inspection, General Motors agreed orally to the discovery if the Secretary named his expert and the date he wanted the inspection.  However, according to General Motors, the Secretary never responded with this information.  Thus, General Motors argues that the Secretary knew he could have had the discovery well before the hearing but he did not make any reasonable attempt to carry it out.  This claim is directly contradicted by an affidavit submitted by the Secretary's attorney stating that there was no response to the Secretary's requests for the discovery inspection.

On the basis of the parties' conflicting representations regarding oral communications, the Commission is unable to determine whether the Secretary's conduct was unduly dilatory or otherwise contumacious and we must rely on the written record.[[2]]   The Federal Rules of Civil Procedure[[3]] provide for a written response to a discovery request, Fed. R. Civ. P. 34(b), and sanctions for a failure to file a written response, Fed. R. Civ. P. 37(d). Federated Metals, Inc., supra.  If General Motors objected to the Secretary's requests and sought greater specificity, General Motors should have filed the required written response stating its objections under Fed. R. Civ. P. 34(b).  In the absence of a written response, the Secretary does not have to disprove General Motors' claimed oral response.  The Secretary filed three discovery requests, General Motors did not file responses, and the Secretary therefore was required to seek an order compelling the discovery.  The record demonstrates that the Secretary's failure to complete discovery before the scheduled hearing was caused to a substantial extent by General Motors' inaction.[[4]]  In view of this inaction causing the Secretary's discovery to be incomplete as well as our conclusion that the parties' conduct during the proceedings had been otherwise reasonably diligent and the proceedings had not been unduly protracted, the Secretary's conduct
cannot be considered excessively dilatory to the point of contumacy.  Accordingly, the judge's denial of the Secretary's motion for an order to compel discovery was an abuse of discretion.

The judge's order denying the discovery and his decision vacating the Secretary's citation are therefore reversed.  This case is remanded to the judge for further proceedings consistent with this opinion, which may include postponement of the hearing until the Secretary is afforded the opportunity to complete discovery.[[5]]   SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  APR 27 1983

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 ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] 29 C.F.R. § 1910.95(b)(1) provides, in pertinent part, that "[w]hen employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized. . . . "

[[2]] We note additionally that General Motors does not claim that it responded in any way to the requests by the Secretary on May 15 and June 22, 1979.

[[3]] Commission proceedings are governed by the Federal Rules unless the Commission has adopted a different rule.  29 U.S.C. § 661(f); see Quality Stamping Prod. Co., 79 OSAHRC 28/F11, 7 BNA OSHC 1285, 1979 CCH OSHD ¶ 23,250 (No. 78-235, 1979), and Federated Metals, Inc., supra.

Federal Rule 34(b) states, in pertinent part:

The party upon whom the request is served shall serve a written response within 30 days after the service of the request . . . .
The response shall state, with respect to each item or category, that inspection will be allowed as requested, unless the request is objected to, in which event the reasons for objection shall be stated.  If objection is made to part of an item or category, the part shall be specified.  The party submitting the request may move for an order under Rule 37(a) with respect to any objection to or any part thereof, or any failure to permit inspection as requested.

[[4]] A moving party should not be denied necessary discovery because of delay caused by the opposing party's failure to respond to discovery requests.  Cf. Federated Metals, Inc., supra, and cases cited therein (dismissal under Federal Rule 41(b) is a sanction against the prosecuting party and therefore is improperly employed where the prosecuting party's failure to proceed is largely the fault of the defending party).

[[5]] Because we decide that the requested discovery was improperly denied, we do not decide whether the judge properly vacated the citation on the basis of the Secretary's evidence.  The issue of whether the Secretary has established the alleged violation of § 1910.95(b)(1) will have to be decided on the basis of the record produced after any further discovery.  The issue of feasibility must be considered under Sun Ship, Inc., 82 OSAHRC, 11 BNA OSHC 1082, 1982 CCH OSHD ¶ 26,353 (No. 16118, 1982), appeal filed, No. 83-3081 (3rd Cir. Feb. 14, 1983).