UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

 OSHRC DOCKET NO. 13-0658 

ORDER ON COMPLAINANT’S MOTION TO COMPEL

This matter comes before the Court on Complainant’s Motion to Compel Responses to 

Discovery. On January 30, 2014, Complainant propounded interrogatories and requests for 

production on Respondent. Respondent provided responses to Complainant’s requests for 

discovery on March 7, 2014. According to Complainant, Respondent’s responses were 

“incomplete, evasive, and objections to proper Answers and Responses are without support.” 

Compl’t Motion to Compel at 1. In response, Respondent filed its Response to Complainant’s 

Motion to Compel Discovery, within which it attempts to explain certain omissions, agrees to 

provide previously withheld information, and reasserts its right to withhold certain documents. 

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 Court has broad discretion regarding 

discovery. See Del Monte Corp., 9 BNA OSHC 2136 (No. 11865, 1981). The Review 

SECRETARY OF LABOR, 

 Complainant,

 

 v. 

PALMER MANUFACTURING & TANK, 

INC., 

 Respondent.

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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.”). 

Id. Based on the foregoing principles of law, the Court issues the following Order. 

Interrogatory No. 14 

This particular interrogatory requests that Respondent “[i]dentify by name and last 

known address and telephone number, all employees who manufacture fiberglass tanks for the 

six-month period on and before December 6, 2013.” Compl’t Motion at 2. Respondent initially 

objected to this request; however, as indicated in its Response, during the teleconference held on

March 10, Respondent agreed to provide said information provided that it would be protected 

against disclosure through a protective order. Respondent represents to the Court that it has 

begun preparing such an order for review by Complainant. 

The Court accepts the representations of Respondent. The Court ORDERS the Protective

Order to be completed and submitted to the Court for approval within five business days from 

the date of this Order. Once the Protective Order is entered as an Order of the Court, Respondent 

shall provide its amended response to Complainant within five business days of the date of that 

Order. Accordingly, subject to the foregoing, Complainant’s Motion is GRANTED with respect 

to this Interrogatory No. 14.

Request for Production No. 3 

This request for production seeks “all documents to or from Respondent and all 

individuals, vendors, or business entities who conducted any air sampling as identified in 

paragraph 6 of Respondent’s Answer to the Complaint.” Respondent initially objected on the 

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basis that the request was overly broad and unduly vague and sought materials covered by the 

work product privilege. In its Response, Respondent states that it has produced all documents 

pertaining to air sampling results. Response at 2. Respondent also notes that Complainant, in its 

Motion, clarified that it seeks docs pertaining to air sampling “post-citation” and that the 

documents “would specifically address the hazard(s) at issue in this matter . . . .” Id. Because 

Respondent claims it has already produced such documents, it claims that the matter is moot.

To the extent that Respondent has not already produced all documents related to postcitation air sampling the Court ORDERS that such documents be produced within 10 days of the 

date of this Order. Accordingly, Complainant’s Motion is GRANTED with respect to Request 

for Production No. 3. 

Request for Production No. 10 

This request for production seeks “all documents from whatever source including but not 

limited to or from all insurance carriers, insurance agents or brokers, state or local government 

agencies, private consultants, municipal fire departments, etc. regarding any workplace safety 

inspection, safety evaluation or insurance underwriting of Respondent’s workplace.” For the 

most part, Respondent’s initial objections were similar to those mentioned above (overly broad, 

unduly burdensome, not limited as to time, etc.); however, according to Respondent, this request 

also seeks a Section 21(d) Consultation Program inspection report that is confidential. See 29 

U.S.C. § 670(d); 29 C.F.R. §§ 1908.6(g)(2), 1908.7(a)(3). Complainant does not agree that the 

report is confidential, nor does he agree that the request needs to be limited in terms of time. 

That said, Complainant “will agree to limit this Request to documents which address confined 

space hazards and other safety or health related hazards concerning the fiberglass tanks in issue.” 

Compl’t Motion to Compel at 6. 

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According to Section 21(d) of the OSH Act, the Secretary is obliged to establish and 

support cooperative agreements with the States, wherein employers subject to the Act can 

consult with State personnel and request voluntary consultative inspections to help establish and 

maintain safe and healthful employment. 29 U.S.C. §§ 670(d)(1)–(2). These inspections are 

intended to take place independent of the enforcement arm of OSHA. Id. § 670(d)(3). Only in 

instances where an employer fails to take immediate action to correct an imminent danger or 

fails to correct serious hazards within a reasonable time after such are identified by the 

consultant shall a report be made to the appropriate enforcement authority. Id.; see also 29 

C.F.R. § 1908.7(a)(1) (“Consultative activity by a State shall be conducted independently of any 

OSHA enforcement activity.”). 

Not only are the consultative functions of the State and the enforcement activities of 

OSHA to remain independent, the reports issued by the State consultation authority are to remain 

confidential: 

Because the consultant’s written report contains information considered 

confidential, and because disclosure of such reports would adversely affect the 

operation of the OSHA consultation program, the state shall not disclose the 

consultant’s written report except to the employer for whom it was prepared and 

as provided for in § 1908.7(a)(3). 

29 C.F.R. § 1908.6(g)(2). Section 1907.7(a)(3), which is referenced in the preceding passage, 

states:

The identity of employers requesting onsite consultation, as well as the file of the 

consultant’s visit, shall not be provided to OSHA for use in any compliance 

activity, except as provided for in § 1908(6)(f)(1) (failure to eliminate imminent 

danger), § 1908.6(f)(4) (failure to eliminate serious hazards), paragraph (b)(1) of 

this section (inspection deferral), and paragraph (b)(4) of this section (recognition 

and exemption program). 

29 C.F.R. § 1908.7(a)(3) (emphasis added). The importance of the confidentiality of these 

reports is reiterated time and again in the regulatory history associated with Part 1908. As noted 

in the Federal Register, “OSHA regulations have always maintained the strict confidentiality of 

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employer-specific consultation information from OSHA enforcement personnel, in order to 

assure employers who avail themselves of this service that their use of the consultation service 

will not be the basis for scheduling an OSHA enforcement inspection or for other enforcementrelated purposes.” Consultation Agreements: Proposed Changes to Consultation Procedures, 64 

Fed. Reg. 35,972, 35,974 (July 2, 1999) (citing 29 C.F.R. § 1908.7(a)(3)). “[T]he success of 

OSHA’s consultation program depends to a great extent on the voluntary cooperation of 

employers who request its services; the confidentiality of the consultant’s report has long been 

viewed by OSHA and state consultants as essential to continued participation by employers in 

this important program.” Id. 

The Court can find no basis in fact—there has been no allegation that Respondent failed 

to correct an identified serious hazard or imminent danger during its consultative inspection—or 

law to undermine the confidentiality of the Section 21(d) Consultation Report. Accordingly, to 

the extent that Complainant seeks to gain access to this report, Complainant’s Motion to Compel 

is DENIED. 

To the extent that Complainant seeks to gain access to previous enforcement-related 

inspections, the Court finds that such documents need not be produced because Complainant is 

in as good a position as Respondent to have them in his possession. Finally, although the Court 

denies Complainant’s Motion as to the aforementioned documents, the Court does find that 

Complainant is entitled to documents (assuming they exist) that are defined by the following 

parameters: As indicated in Complainant’s Motion, Respondent shall produce any and all

documents, including, but not limited to, inspections and evaluations that address confined space 

hazards and other safety or health related hazards concerning the fiberglass tanks in issue that 

were created no earlier than six months prior to the beginning of the inspection. Contrary to 

Complainant’s assertion, a reasonable restriction on time is appropriate in a case involving only 

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“serious” violations of the standard. Respondent shall produce such documents within 10 days 

of the date of this Order. Accordingly, Complainant’s Motion is DENIED in part and 

GRANTED in part. 

Request for Production No. 12 

This request for production seeks “all documents regarding the mechanical ventilation of 

any buildings at Respondent’s workplace in which the manufacturing of fiberglass tanks occur, 

including but not limited to, documents dealing with the rate of air exchange/air movement in 

such buildings, limitations of any ventilation systems, and protocols for use of such ventilation 

during the manufacturing of fiberglass tanks.” In his Motion, Complainant specifically 

identifies, as the target of this request, air horns that replace and circulate air inside the fiberglass

tanks, which he argues is “directly relevant to the issue of whether any potentially hazardous 

atmospheres could exist within the tanks.” Compl’t Motion at 7–8. Accordingly, Complainant 

argues that it is entitled to all such documents from the manufacturer/vendor, including 

instructions and warnings, pertaining to those air horns. 

Respondent, with the above description in mind, stated that it does not object to the 

production of “all documents in its possession regarding the air horns and their use”; rather, its 

objection was to the broad-based nature of the request, which seemed to indicate a request for

information regarding the general ventilation of all buildings at its facility. Response at 10. 

Based on the foregoing, the Court ORDERS Respondent to produce any and all documents in its 

possession regarding the air horns and their use within ten days of the date of this Order. 

Accordingly, Complainant’s Motion is GRANTED with respect to this request for production. 

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SO ORDERED.

Date: April 2, 2014 /s/ 

Denver, Colorado Patrick B. Augustine 

 Judge, OSHRC

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