UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, )

)

Complainant )

)

v. ) Docket No. 08-1104

)

IMPERIAL SUGAR COMPANY; )

IMPERIAL-SAVANNAH, L.P., )

)

Respondents. )

____________________________________)

RESPONDENTS’ RESPONSE TO COMPLAINANTS’ MOTION TO COMPEL

Respondents Imperial Sugar Company and Imperial-Savannah, L.P. (collectively 

“Imperial”) respond to Complainant’s Motion to Compel Responses to Interrogatories and 

Requests for Production of Documents, stating the following;

I. INTRODUCTION.

Complainant’s motion seeks to compel Imperial to do three things: (1) identify the 

specific discovery requests to which documents previously produced to Complainant during the 

OSHA investigation (in response to Complainant’s six investigative subpoenas) are responsive;

(2) identify all “persons with knowledge” regarding the various subject areas described in 

Complainant’s interrogatories; and (3) produce documents to which Complainant was already 

provided unlimited hands-on access to, but did not request copies of, during the OSHA 

investigation. 

Imperial disagrees with Complainant’s contention that she has, in good faith, conferred 

with counsel for Imperial in an effort to secure, without Commission action, the information and 

material described in her motion. In fact, Imperial is surprised by Complainant’s filing of this 

motion. The written communications attached to Complainant’s motion demonstrate that the 
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parties have been in continuous communication about discovery issues, that Imperial has worked 

diligently to respond to the extremely ambitious discovery requests served by Complainant, and 

that Imperial has already agreed to comply with the three demands described in Complainant’s 

motion. In fact, by letter on April 24, 2009, Imperial clearly spelled out its plan to comply with

all three of these demands. (See Exhibit A to Complainant’s Motion to Compel (hereinafter 

“MTC”).) 

Imperial does concede that it initially hoped to supplement its discovery responses by 

early May 2009 (for demands 1 and 2) and late May (for demand 3), and that it was unable to do 

so until early June.1 Unfortunately, given the extraordinary number of subject matters at stake in 

this litigation, as well as the vast amount of relevant information accumulated during the 

investigation and throughout the litigation, the efforts required to respond to discovery requests 

have taken much more time than either party would prefer. Imperial has, however, diligently 

worked toward providing Complainant the information she has requested. Yet, prior to filing her 

Motion to Compel, Complainant raised no concern to Imperial about Imperial’s short delay in 

complying with these three demands. Just as Imperial recently granted Complainant a 45-day 

extension to respond to its discovery requests, Imperial would have expected the same 

cooperation from Complainant. 

In any event, as explained below, Imperial has already complied with all three of 

Complainant’s demands in her Motion to Compel, and the thus the motion is moot. Imperial 

regrets that the Commission has had to become involved in these issues that were, we believe, 

already resolved among the parties’ counsel.

1

It should be noted that the time for Imperial to comply with Complainant’s demands following its April 

24 letter—about 45 days—is the same amount of time Imperial recently granted Complainant as an 

extension of time in order to respond to Imperial’s second discovery requests. 
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II. BACKGROUND.

As the Commission is aware, Complainant conducted lengthy and comprehensive 

investigations at Imperial’s facilities in Port Wentworth, Georgia and Gramercy, Louisiana. 

Each investigation lasted over four (4) months. Over twenty (20) OSHA officials were directly 

involved in the investigations. Throughout the investigations, OSHA conducted numerous walkaround inspections, employee interviews, consultant visits, and reviews of Imperial’s 

documentary records. OSHA conducted over 200 interviews of Imperial employees, former 

employees, and contractors—and some of these interviews were repeated two or three times.

OSHA also conducted thirteen (13) sworn interviews (via deposition) of company managers and 

corporate personnel—including Imperial’s Chief Executive Officer, Senior Vice President of

Human Resources, Vice President of Operations, Vice President of Sugar Technology, Risk 

Manager, and Corporate Safety Director. OSHA investigators had virtually unlimited access to 

both facilities and the equipment within those facilities—including the damaged areas at the Port 

Wentworth site. OSHA took over 1,000 photographs of relevant facilities and equipment. 

Meanwhile, Complainant propounded six subpoenas duces tecum containing 160 separate 

requests for documents (some containing multiple subparts). During the investigation, Imperial 

provided to Complainant over 30,000 pages of documents in response to these requests. In 

addition, throughout the investigation, Imperial provided OSHA with virtually unlimited access 

to various repositories of historical records that were responsive to the subpoenas. By agreement 

reached between Complainant and Imperial, OSHA’s several investigators at the Port Wentworth 

site were permitted, at any time they requested over the course of their four-month investigation, 

to comb through several thousand pages of company records—including company 

correspondence, engineering diagrams, construction plans, specifications lists, contract records, 

equipment manuals, etc. 
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Imperial expended an extraordinary amount of time, effort, and money responding to 

OSHA’s numerous demands for documents and other information, coordinating and defending 

witness interviews, and otherwise supporting OSHA’s comprehensive investigations. Thus, to 

the extent that Complainant’s current discovery requests in this litigation require Imperial to 

repeat these efforts, Imperial’s position has been that such a requirement would impose an 

unreasonable burden on Imperial and would waste the resources of both Imperial and the U.S. 

Government.2 Accordingly, Imperial has generally objected to discovery requests seeking 

information or documents that are duplicative of or redundant to the information or documents it 

already produced or provided access to throughout Complainant’s comprehensive investigations.

Nevertheless, Imperial has worked with Complainant to come to an agreement regarding 

the types of discovery that are necessary and reasonable in this case. Thus far, the parties have 

worked through these issues, including the issues now addressed in Complainant’s motion.3

III. RESPONSE TO COMPLAINANT’S ARGUMENT

A. Interrogatories.

1. Complainant’s Demand that Imperial Specify the Discovery Requests to Which 

Documents Previously Produced During the OSHA Investigation Are Responsive. 

Complainant argues that, where Imperial has elected to rely on FRCP 33(d) and has 

referred to documents in response to particular interrogatories in lieu of providing written 

2 One reason Imperial cooperated so fully with Complainant’s investigations and at so much expense was 

so that Imperial would not have to repeat the entire process in subsequent litigation. 

3

It should also be noted that Complainant has incorrectly characterized the amount of document 

production Imperial has provided to date in this litigation. Complainant states that, since receiving her 

discovery requests in December 2008, Imperial has produced only 303 pages of responsive documents 

relating to its former Vice President of Operations, Graham H. Graham. (Complainant’s MTC at 7.) It is 

not clear how Complainant has come to this conclusion. In fact, since January 2009 (and before 

Complainant filed her MTC), Imperial has made eight (8) separate document productions directly 

responsive to her discovery requests, with a total page count of 9,687. In addition, Imperial has indicated 

to Complainant on several occasions in recent months that it was diligently working on a large production 

of responsive documents (see Exhibit A to Complainant’s MTC), and on June 12 it produced 63,113

pages of documents directly responsive to her requests.
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responses, it must describe the documents that contain responsive information in “sufficient 

detail” to enable Complainant to locate such documents. (Complainant’s MTC at 9.) Thus, 

with respect to the over 30,000 pages of documents Imperial previously produced during the 

OSHA investigation (in response to Complainant’s 160 subpoena requests), Complainant 

contends that Imperial must now re-visit those documents and identify which interrogatory or 

production request each document is responsive to, and identify each such document by Bates 

label. 

Imperial has objected to this demand, pursuant to 29 C.F.R. § 2200.52(c), on grounds that 

(1) it is “unreasonably cumulative or duplicative, or is obtainable from some other source that is 

more convenient, less burdensome, or less expensive”; (2) Complainant has “had ample 

opportunity to obtain the information sought” by other means; and (3) the request is “unduly 

burdensome or expensive.” First, requiring Imperial to provide information or documents that 

are duplicative of or redundant to the information or documents it already produced during 

Complainant’s comprehensive investigation and in response to Complainant’s six subpoenas 

duces tecum is “unreasonably cumulative and duplicative.” Second, Complainant “had ample 

opportunity to obtain the information sought” (having had no limit on the number of subpoenas

issued or other investigative authority). Finally, these requests are “unduly burdensome or 

expensive”—Imperial is being asked to entirely repeat its review of documents it already

produced to Complainant in response to very similar requests set forth in Complainant’s six 

subpoenas. 

Despite these valid objections, and in the interest of cooperative discovery, Imperial has 

already agreed to review its previous productions and identify the specific document requests 

and interrogatories to which each previously produced document is responsive. (See Exhibit A 
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to Complainant’s MTC, Letter Dated April 24, 2009.) 

Imperial counsel initially believed this process would be completed by early May 2009. 

Unfortunately, the process was extraordinarily time consuming and was not completed until June 

3, 2009, at which time the information was immediately provided to Complainant. (See Exhibit 

1, Imperial Letter Dated June 3, 2009). Accordingly, Imperial has complied with these requests,

and this portion of Complainant’s motion is moot. 

2. Complainant’s Request that Imperial Identify all Persons with Knowledge 

Regarding the Subject Areas Identified in Complainant’s Interrogatories.

Complainant’s Motion also seeks to have Imperial identify all “persons with knowledge 

of the facts” pertaining to several different subject areas addressed in various interrogatories. As 

noted by Complainant, Imperial initially provided a list (Appendix A of its Responses to 

Complainant’s First Interrogatories) of persons who may have knowledge of facts responsive to 

the various interrogatories. Unsatisfied, Complainant demanded that Imperial specifically 

identify all persons who have knowledge of the facts sought in each interrogatory. 

Imperial objected to Complainant’s demand on several grounds, including the fact that 

such request is unduly burdensome and duplicative.

4 During the course of its six-month 

comprehensive investigation, Complainant interviewed (or had the unrestricted opportunity to 

interview) every single one of Imperial’s employees and any other persons with knowledge of 

the facts related to this litigation, presumably in order to obtain the very information now sought 

in the interrogatories. Thus, Complainant has had “ample opportunity to obtain the information 

4

It should be noted that Complainant attempts to minimize the burden of this request in her Footnote 1, 

where she provides abbreviated summaries of the subject areas addressed in particular interrogatories. 

Complainant fails to acknowledge that certain of the interrogatories encompass multiple sub-categories of 

information. For example, Interrogatory No. 21 alone seeks information relating thirty-two (32) separate 

citation items, covering such diverse subjects as fall hazards, fixed ladders, man-lifts, portable fire 

extinguishers, machine guarding, wiring, electrical equipment and disconnects, electrical equipment 

labeling, signage, electrical exposure, lead exposure, Marine Dock violations, and others.
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sought” by other means. 29 C.F.R. § 2200.52(c).

Despite these valid objections, and in the interest of cooperative discovery, Imperial has 

already agreed to develop a list of those employees and other persons it presently knows to have 

knowledge regarding the subject areas identified in the interrogatories. (See Exhibit A to 

Complainant’s MTC, Letter Dated April 24, 2009.) 

Imperial counsel initially believed this process would be completed by early May. 

Unfortunately, the process was extraordinarily time consuming and was not completed until June 

12, 2009, at which time the information was immediately provided to Complainant. (See Exhibit 

2, Imperial Letter Dated June 12, 2009). Accordingly, Imperial has complied with these 

requests, and this portion of Complainant’s motion is moot. 

B. Requests for Production of Documents.

Complainant’s Motion to Compel also seeks to have Imperial produce documents to 

which Complainant was already provided unlimited hands-on access to, but did not request

copies of, during the OSHA investigation. (Complainant’s MTC at 12.)5 Complainant contends 

that, even if she had unlimited access to certain documents during the investigation but elected 

not to request copies of said documents, Imperial is now obligated to go back and review those 

documents and determine whether any of them are now responsive to her discovery requests. 

(Id.) 

Pursuant to 29 C.F.R. § 2200.52(c), Imperial has objected to providing documents that 

are duplicative of the documents it already produced or provided access to throughout 

Complainant’s comprehensive investigation and in response to Complainant’s six subpoenas. 

5 Complainant also complains that, with regard to the more than 30,000 pages of documents 

produced during the OSHA investigation, Imperial has “failed to identify what documents they 

believe are responsive to each request.” (Complainant’s MTC at 12.) This part of 

Complainant’s motion has already been addressed above in Part II.A.
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Throughout the investigation, Imperial provided OSHA with virtually unlimited access to 

various repositories of historical records (by some estimates, several hundred thousand pages) 

that were responsive to the subpoenas and may now be responsive to many of the current 

discovery requests. By agreement reached between Complainant and Imperial, OSHA’s several 

investigators were permitted, at any time they requested over the course of their four-month 

investigation, to comb these repositories—which included company correspondence, engineering 

diagrams, construction plans, specifications lists, contract records, equipment manuals, etc. In 

this process, Imperial expended an extraordinary amount of time, effort, and money facilitating 

the document reviews, responding to OSHA’s demands for the documents they identified, and 

copying and producing the documents. Despite these efforts during OSHA’s four-month 

investigation, Complainant now demands that Imperial return to these repositories and repeat 

what OSHA has already done. 

Despite these valid objections, and in the interest of cooperative discovery, Imperial has 

already agreed to re-visit the various repositories of documents (again, all of which were 

previously accessible to OSHA) and review the documents for responsiveness to Complainant’s 

current document requests. (See Exhibit A to Complainant’s MTC, Letter Dated April 24, 2009.) 

In this process, Imperial has identified and collected several thousand pages of additional 

responsive documents which Complainant did have access to, but elected not to request copies 

of, during the investigation. 

Imperial counsel initially believed this process would be completed by late May. 

Unfortunately, the process was extraordinarily time consuming and was not completed until June 

9, 2009 (see Exhibit 3, Imperial Letter Dated June 9, 2009) and the responsive documents were 

ultimately provided to Complainant on June 12, 2009 (see Exhibit 4, Imperial Letter Dated June 
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11, 2009). Accordingly, Imperial has complied with this request, and this portion of 

Complainant’s motion is moot. 

IV. CONCLUSION.

As noted above, discovery in this case is not like in a typical case before the Commission. 

The demands on both sides are extraordinary. Both sides are working diligently to move the 

case forward through the discovery process, and progress is being made. Imperial believes that 

the demands described in Complainant’s Motion to Compel have already been worked out

among the parties, and it regrets that the Commission has had to become involved in these 

matters. Imperial will continue to work toward resolving such issues in the future without the 

Commission’s intervention.

For the foregoing reasons, Imperial respectfully requests that the Commission deny

Complainant’s Motion to Compel in its entirety.

Respectfully submitted this 15th day of June 2009.

/s/ Matthew J. Gilligan

Charles H. Morgan

charlie.morgan@alston.com

Matthew J. Gilligan

matt.gilligan@alston.com

Ashley D. Brightwell

ashley.brightwell@alston.com

Jeremy D. Tucker

jeremy.tucker@alston.com

ALSTON & BIRD LLP

1201 West Peachtree Street

Atlanta, Georgia 30309-3424

(404) 881-7000

FAX: (404) 253-8757

Attorneys for Respondents 
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LEGAL02/31357424v1

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR, )

)

Complainant )

)

v. ) Docket No. 08-1104

)

IMPERIAL SUGAR COMPANY; )

IMPERIAL-SAVANNAH, L.P. )

)

Respondents. )

____________________________________)

CERTIFICATE OF SERVICE

I certify that all parties have consented that all papers required to be served in this action 

may be served and filed electronically. I further certify that a copy of RESPONDENTS’ 

RESPONSE TO COMPLAINANT’S MOTION TO COMPEL RESPONSES TO DISCOVERY 

was electronically served on June 15, 2009 on the following counsel for Complainant:

Karen E. Mock

Mock.Karen@dol.gov

Angela F. Donaldson

Donaldson.Angela@dol.gov

Office of the Solicitor

U.S. Department of Labor

61 Forsyth Street S.W.

Room 7T10

Atlanta, Georgia 30303

/s/ Matthew J. Gilligan

Matthew J. Gilligan

matt.gilligan@alston.com

Alston & Bird LLP

1201 West Peachtree Street

Atlanta, Georgia 30309-3424