United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

U.S. Custom House

721 19th Street, Room 407

Denver, Colorado 80202

Phone: (303) 844-

3409

Fax: (303) 844-3759

SECRETARY OF LABOR,

Complainant,

v.

HEALY TIBBITTS BUILDERS, INC.

Respondent.

OSHRC Docket No.: 15-1069

AMENDED ORDER

The Court has considered Complainant’s Motion to Compel and Deem Requests for

Admission Admitted (“Motion”) and Respondent’s Opposition to Complainant’s Motion to

Compel Responses and Deem Requests Admitted (“Response”). As a preliminary matter, it

appears that the parties undertook some efforts to resolve the discovery disputes before

contacting the Court in compliance with Commission Rule 40 and the Court’s Standard

Practices and Procedures.

Standard on Motions to Compel

Commission Rule 52(b) states, “The information . . . sought through discovery may

concern any matter that is not privileged and that is relevant to the subject matter involved in the

pending case.” 29 C.F.R. § 2200.52(b). The information sought need not be admissible at

hearing so long as it appears reasonably calculated to lead to the discovery of admissible

evidence. Id. When another party refuses or obstructs discovery, the requesting party may apply

for an order compelling discovery. Id. § 2200.52(f). The Review Commission has 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.”).
It is well-settled that Commission judges are afforded broad discretion in controlling pre-trial

discovery issues. Del Monte Corp., 9 BNA OSHC 2136, 1981 CCH OSHD ¶25,586 (No. 11865,

1981); N.L. Industries, Inc., 11 BNA OSHC 2156, 1984-1985 CCH OSHD ¶26,997 (no. 78-

5204, 1984). It is therefore ORDERED that these discovery disputes will be disposed of as

follows:

Complainant’s Requests for Admission

Complainant served Respondent with Requests for Admission. Both parties are in

agreement that the Responses to the Requests for Admission have been filed by

Respondent—even though they were filed late. Complainant does not allege any of the

Responses to the Requests for Admission are insufficient. Complainant has suffered no

prejudice. In addition, Complainant has waited over sixty (60) days to file its Motion to deem

the late filed Responses to the Requests for Admission deemed admitted. Pursuant to the Court’s

Scheduling Order, sufficient time remains for Complainant to conduct further discovery into the

issues subject to the Requests for Admissions. Therefore, Complainant’s Motion is DENIED on

this basis.

Complainant’s Interrogatories

The Court has reviewed all of Complainant’s interrogatories and Respondent’s responses.

Therefore, the Court’s decision as to each disputed interrogatory is outlined below:

Interrogatory No. 8: This interrogatory seeks the names, titles, addresses, and phone

numbers of all employees of Respondent having knowledge and/or information about the

circumstances regarding the citations issued at the Worksite during the inspection. Respondent

answered by stating all of this information was in the OSHA inspection file. Respondent’s

objections are OVERRULED. Complainant’s Motion is GRANTED as to this interrogatory,

and Respondent is ORDERED to supplement its response within TEN DAYS with specific facts

as to the names, titles, addresses, and phone numbers of all Respondent employees having

knowledge and/or information regarding the citations issued.

Interrogatory No. 12: This interrogatory seeks the job titles, duties, and responsibilities

of eight employees of Respondent. Respondent responded by referring Complainant to the

OSHA investigative file. Respondent’s objections are OVERRULED. Complainant’s Motion

is GRANTED as to this interrogatory and Respondent is ORDERED to supplement its response

within TEN DAYS with specific facts as to the job titles, duties, and responsibilities of the eight

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employees identified in the interrogatory. In lieu of setting forth such information in narrative

form, Respondent may choose to comply with this ORDER by providing a true and correct copy

of the job description/personnel record which contains the information requested.

Complainant’s Request for Production

Complainant contends that Respondent responding to 32 of the 34 Requests for

Admission with the following response is not in compliance with Federal Rule of Civil

Procedure 34: “Respondent incorporates by reference herein all documents produced by the U.S.

Navy, Truston Technologies, and Respondent during the course of the inspections underlying the

instant action. Respondent is not in possession of any additional documents.”

Commission Rule 2(b) states that “[i]n the absence of a specific provision, procedure

shall be in accordance with the Federal Rules of Civil Procedure.” 29 C.F.R. § 2200.2(b); see

also 29 C.F.R. 2200.52(a)(1)(iii). In other words, if the Commission Rules do not provide for a

particular procedure, then the Federal Rules of Civil Procedure (“FRCP”) fill in the gaps. The

particular rule at issue in this case is Commission Rule 53(b), which indicates the procedure for

making and responding to requests for production of documents and things. 29 C.F.R. §

2200.53(b). It states:

Procedure. The request shall set forth the items to be inspected, either by individual item

or by category, and describe each item and category with reasonable particularity. . . .

The party upon whom the request is served shall serve a written response within 30 days

after service of the request, unless the requesting party allows a longer time. . . . The

response shall state, with respect to each item or category, that inspection and related

activities will be permitted as requested, unless the request is objected to in whole or in

part, in which event the reasons for objection shall be stated. If objection is made to part

of an item or category, that part shall be specified.

29 C.F.R. § 2200.53(b) Complainant contends that Respondent must provide a separate response

to each individual request that indicates which of the produced documents is responsive.

Complainant further contends that Respondent’s responses do not comply with FRCP

34(b)(2)(E)(i), which provides that a “party must produce documents as they are kept in the usual

course of business or must organize and label them to correspond to the categories in the

request.” Fed. R. Civ. P. 34(b)(2)(E)(i). Accordingly, Complainant contends that Respondent’s

response to each individual request is insufficient.

In light of the above, there are three questions presented to the Court for review: (1)

whether Commission Rule 53(b) allows for the relief sought by Complainant; (2) whether FRCP

34(b)(2)(E)(i) is applicable to Commission proceedings; and (3) whether FRCP 34(b)(2)(E)(i)

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provides for the requested relief. Based on what follows, the Court answers each of the above

questions in the affirmative and grants relief in accordance with the Order at the conclusion of

this discussion.

Contrary to Respondent’s assertion, the Court finds that Commission Rule 53(b) requires

Respondent to identify which produced documents are responsive to a particular request. First,

the rule dictates that the response shall state “with respect to each item or category” that

inspection and related activities will be permitted as requested. Read narrowly, and in isolation

from the rest of the rule, this clause seems to indicate that compliance can be achieved by merely

providing documents or the opportunity to inspect them. However, when read in conjunction

with the remainder of the rule, the Court finds that the rule implies a quid pro quo between the

parties. Insofar as it is incumbent on Complainant to describe each item and/or category of items

requested with “reasonable particularity,” the Court finds that a reasonable reading of the rule

also requires Respondent to respond in kind “with respect to each item or category.” Merely

providing the Response which Respondent has provided (which refers to some 2100 pages of

documents) without providing any indication as to what, if anything, in that series of documents

is responsive is as helpful as being told to go to the library when asking a series of questions

about American history. While Commission Rule 53(b) does not specifically state that the

responding party shall identify which produced documents are responsive to which requests, the

Court finds that a comprehensive reading of the entire rule reasonably and clearly contemplates

such action on behalf of Respondent.

With respect to the second question, the Court finds that FRCP 34(b)(2)(E)(i) is

applicable to the present proceedings. First, Commission Rule 53(b) does not specifically state

how responses to requests for production shall be made; rather, it only indicates that “inspection

and related activities shall be permitted.” In other words, a literal reading of the rule seems to

indicate what a responding party’s obligations are and not how they are to be accomplished.

Thus, the Court finds that there is no specific Commission provision as to the manner of

providing responses to specific requests for production. The Commission Rules do not provide

procedures for this type of discovery; therefore, the Court finds that FRCP 34(b)(2)(E)(i) is

applicable to the present dispute in either case.

Finding that FRCP 34(b)(2)(E)(i) is applicable, however, does not resolve the issue. The

Court must also determine what obligations the rule imposes upon the responding party. The

rule is written such that a responding party can fulfill its obligation in one of two ways: (1)

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providing the documents as they are kept in the normal course of business; or (2) organizing and

labeling the documents to correspond to the categories in the request. See FRCP 34(b)(2)(E)(i).

Thus, a responding party can choose the manner of production insofar as it complies with the

options provided. Clearly, the first option would appear to impose a less onerous burden on the

responding party; however, more than one court has noted that, “if the business record-keeping

system used by the producing party ‘is so deficient as to undermine the usefulness of

production,’ that party may not have met its obligations under Rule 34.” Mizner Grand

Condominium Assn. v. Travelers Property Cas. Co. of America, 270 F.R.D. 698, 700 (S.D. Fla.

2010) (quoting Pass & Seymour, Inc. v. Hubbell, Inc., 255 F.R.D. 331, 336 n.2 (N.D.N.Y 2008));

see also T.N. Taube Corp. v. Marine Midland Mortgage Corp., 136 F.R.D. 449, 456 (W.D.N.C.

1991) (court expressed doubt that production of 789 bates-stamped documents provided in a box

with no discernible order was proper as the documents were kept in usual course of business and

directed responding party to organize and label documents to indicate the specific demand to

which each related). If a responding party utilizes the first option, they must do more than

merely state that the documents were kept in the usual course of business; rather, courts typically

require the producing party to provide some “modicum of information” regarding how

documents are ordinarily kept in the course of business, which would ideally include “the

identity of the custodian or person from whom the documents were obtained . . . , assurance that

the documents have been produced in the order in which they are maintained, and a general

description of the filing system from which they were recovered”. Id. at 701 (quoting Pass &

Seymour, 255 F.R.D. at 337).

If the documents were not acquired in the normal course of business but were instead

acquired during a “specific, non-routine occurrence,” then the responding party cannot resort to

the first option of FRCP 34(b)(2)(E). See id. (documents acquired in underlying litigation were,

by their very nature, not maintained in the usual course of business); Wagner v. Dryvit Syst., Inc.,

208 F.R.D. 606, 611 (D. Neb. 2001) (finding that repository of documents maintained for

purposes of separate litigation involving defendant in class action lawsuit not maintained in

ordinary course of business).

After reviewing the discovery responses provided by Respondent, the Court finds that

Respondent is not eligible to elect to produce the documents as they are kept in the ordinary

course of business as it relates to the U.S. Navy or Truston Technologies. First, the vast majority

of the documents produced are not kept by Respondent in the ordinary course of business. Many

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of these documents were acquired from outside sources during the course of the other

proceedings involving the inspection of the Worksite. Second, even if this is the manner in

which Respondent maintains documents obtained in the ordinary course of business, which the

Court doubts, the manner of production “is so deficient as to undermine the usefulness of

production.” Pass & Seymour, 255 F.R.D. at 336 n.2. Accordingly, the Court finds that

Respondent is required to respond to the production requests in conformity with the second part

of FRCP 34(b)(2)(E)(i). See Fed. R. Civ. P. 34(b)(2)(E)(i) (“[A] party must organize and label

[the responsive documents] to correspond to the categories in the request.”)

In addition, the Court also notes that it has broad discretion regarding discovery. See Del

Monte Corp., 9 BNA OSHC 2136 (No. 11865, 1981). As noted, the Court’s discretion should be

guided by the objective of providing a fair and prompt hearing. Unloading an amalgamation of

unsegregated, relevant and non-relevant documents does not comport with the twin goals of

fairness and promptness. Although Respondent has argued that Complainant’s request imposes

an undue burden, the Court notes that “[i]t is not sufficient to simply state that the discovery is

overly broad and burdensome, nor is a claim that answering the discovery will require the

objecting party to expend considerable time and effort analyzing ‘huge volumes of documents

and information’ a sufficient factual basis for sustaining the objection.” Dryvit, 208 F.R.D. at

610 (quoting Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296–97 (E.D. Pa. 1980)). By

granting Complainant’s Motion to Compel, the Court asks no more of Respondent than it would

already have to undertake in order to prepare for a trial on the merits; namely, segregating and

indexing the material according to the issues in the case.

In light of the foregoing, the Court GRANTS Complainant’s Motion to Compel and

ORDERS Respondent to provide amended responses to Respondent’s Production of Document

discovery requests, within TWENTY (20) DAYS

as follows:

1. Respondent shall review all produced documents/materials for relevant, responsive

information;

2. With respect to relevant and responsive information, Respondent shall identify where

those documents are located within the provided references/documents by providing an index,

which contains the title/identification of the document, the date (if any), bates stamp numbering,

and the specific request that the document is responsive to; and

3. To the extent that a privilege is claimed with respect to a particular document, or any

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portion thereof, Respondent shall provide Complainant with a privilege log that supplements the

above-mentioned index.

4. Respondent shall conduct and CERTIFY to the Court, within TWENTY (20) DAYS

that it has conducted a thorough search of its business records, documents and files for

responsive documents which were previously not provided to the Occupational Safety Health

Administration during its inspection which contain relevant, responsive information subject to

the citations at issue in this litigation. Failure to produce such document will subject Respondent

to sanctions pursuant to FRCP 37.

SO ORDERED.

/s/ Patrick B. Augustine

Dated: February 25, 2016

PATRICKB. AUGUSTINE

Judge, OSHRC

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