UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

HILDA L. SOLIS, Secretary of Labor, ) 

United States Department of Labor ) 

 ) 

 Complainant, ) 

 ) OSHRC Docket No. 08-1104 

v. ) 

 ) 

IMPERIAL SUGAR COMPANY; IMPERIAL- ) 

SAVANNAH, L.P.; and their Successors, ) OSHA Inspection No. 310988712 

 ) 

 Respondents. ) 

COMPLAINANT’S MOTION TO COMPEL RESPONSES TO 

INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS 

AND MEMORANDUM IN SUPPORT 

Pursuant to Rule 2200.52(e) of the Occupational Safety and Health Review Commission, 

which incorporates Rule 37(a) of the Federal Rules of Civil Procedure, Complainant moves for 

an Order compelling Respondents to provide complete responses to Complainant=s First 

Interrogatories and Requests for Production of Documents (as enumerated below and attached 

hereto as Exhibits B and C). As grounds for this Motion, Complainant shows as follows: 

I. CERTIFICATION 

 Pursuant to Fed. R. Civ. P. 37(a)(2)(B), the undersigned counsel hereby certify that they 

have, in good faith, conferred with counsel for Respondents in an effort to secure the information 

and material described herein without court action. A copy of the parties’ written 

communications confirming the issues discussed are attached hereto as Exhibit A. 

II. DISPUTED DISCOVERY RESPONSES 

On December 11, 2008, Complainant served Respondents with First Interrogatories and 

Requests for Production of Documents, pursuant to Rules 52, 53, and 55 of the Rules of 
Procedure for the Occupational Safety and Health Review Commission, and Federal Rules of 

Civil Procedure 33 and 34. (See Exhibits B and C, attached hereto). On January 12, 2009, in 

response to several Interrogatories and Requests for Documents, which are summarized below, 

Respondents included in their response the following statement in pertinent part: 

[P]ursuant to Federal Rule of Civil Procedure 33(d), Imperial will 

produce non-privileged documents in its possession and/or control 

containing information responsive to this Interrogatory, except to 

the extent Imperial has already produced or provided access to 

such documents during the investigation of this matter and in 

response to Complainant’s six Subpoenas duces tecum (containing 

one hundred and sixty (160) document requests). 

Respondents provided the answer above in response to the following Interrogatories: 

Interrogatory No. 1: State all facts, identify all persons with knowledge of 

the facts, and identify all documents upon which Imperial relies in support 

of its denial in its Answer of the allegations contained in the Complaint. 

In answering this Interrogatory, please specify to which paragraph of the 

Complaint the facts, persons, and/or documents that you identify relate. 

 

Interrogatory No. 2: State all facts, identify all persons with knowledge of 

the facts, and identify all documents upon which Imperial relies in support 

of its affirmative defenses in its Answer. In answering this Interrogatory, 

please specify to which affirmative defense the facts, persons, and/or 

documents that you identify relate. 

Interrogatory No. 3: Please identify all facts, all persons with knowledge 

of the facts, and all documents that Imperial possessed, received, or 

created prior to February 7, 2008, that pertained to the hazards associated 

with sugar dust and/or cornstarch, including but not limited to the hazards 

of fire, explosion, combustion, deflagration, an/or dust accumulations. 

Interrogatory No. 4: Please identify all facts, all persons with knowledge 

of the facts, and all documents that Imperial possessed, received, 

reviewed, or created prior to February 7, 2008, that pertain to cleanliness 

and/or housekeeping with respect to sugar dust and/or cornstarch at the 

facility, including but not limited to standards for cleanliness, 

determinations of acceptable levels of accumulation, communications of 

cleanliness standards and accumulation levels to employees, and cleaning 

and inspection schedules. 

*** 

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Interrogatory No. 7: Identify all facts, all persons with knowledge of the 

facts, and all documents regarding accumulations of sugar dust and/or 

cornstarch in places of employment and workrooms on the floors and/or 

elevated surfaces at the facility. 

 

Interrogatory No. 8: Identify all oral or written communications made or 

received before February 7, 2008 by Imperial, on the hazards of fire, 

explosion, combustion, deflagration, or dust accumulation between or 

among the directors, officers, managers, supervisors, employees, 

representatives, and/or agents of Imperial. 

Interrogatory No. 9: Identify all facts, all persons with knowledge of the 

facts, and all documents regarding the electrical classification of locations, 

including the classification of Class II hazardous locations, as defined by 

29 C.F.R. § 1910.399, at the facility. 

Interrogatory No. 10: Identify all facts, all persons with knowledge of the 

facts, and all documents regarding deflagration relief venting and/or 

deflagration suppression systems for sugar conveyance and processing 

equipment utilized by Imperial at the facility. 

Interrogatory No. 11: Identify all facts, all persons with knowledge of the 

facts, and all documents regarding the maintenance of dust collector 

systems and screw augers at the facility. 

Interrogatory No. 12: Identify all facts, all persons with knowledge of the 

facts, and all documents regarding the type of materials that should be 

used for exterior walls or roofs in Class II, Division 1 or 2 areas at the 

facility. 

Interrogatory No. 13: Identify all facts, all persons with knowledge of the 

facts, and all documents regarding the use of bearing temperature, belt 

alignment, and vibration detection monitors on processing and conveyance 

equipment, including the bulk material steel conveyor belts and inside of 

the bucket elevators at the facility. 

Interrogatory No. 14: Identify all facts, all persons with knowledge of the 

facts, and all documents regarding scrubber machines and/or gasoline and 

propane powered industrial trucks that were used at the facility, including 

but not limited to the areas in which the scrubber machines and/or trucks 

were used, and any ratings for hazardous locations that were held by the 

trucks and/or scrubber machines. 

Interrogatory No. 15: Identify all facts, all persons with knowledge of the 

facts, and all documents regarding the conditions identified in Citation 2, 

Items 16 through 19. 

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Interrogatory No. 16: Identify all facts, all persons with knowledge of the 

facts, and all documents regarding the conditions identified in Citation 2, 

Item 25(a) and (b). 

Interrogatory No. 17: Identify all facts, all persons with knowledge of the 

facts, and all documents regarding the conditions identified in Citation 1, 

Item 1. 

Interrogatory No. 18: Identify all facts, all persons with knowledge of the 

facts, and all documents regarding the conditions identified in Citation 1, 

Item 3. 

Interrogatory No. 19: Identify all facts, all persons with knowledge of the 

facts, and all documents regarding the conditions identified in Citation 1, 

Items 7 through 14. 

Interrogatory No. 20: Identify all facts, all persons with knowledge of the 

facts, and all documents regarding the conditions identified in Citation, 1, 

Items 15 through 19. 

Interrogatory No. 21: Identify all facts, all persons with knowledge of the 

facts, and all documents regarding the conditions identified in Citation 1, 

Items 20 through 51. 

Interrogatory No. 23: Identify all oral and written communications by 

Imperial before February 7, 2008, on the explosion that occurred at the 

Domino Sugar Plan in Baltimore, Maryland on November 2, 2007. 

(Exhibit B, attached hereto). 

Respondents also provided the answer above in response to the following Requests for 

Documents: 

1. All documents that Imperial contends support its denial of the 

allegations contained in the Citations and Notifications of Penalty. 

 

2. All documents that concern or relate to sugar dust or cornstarch 

accumulations at any facility owned, operated, or in any way 

controlled by Imperial on or before February 7, 2008. 

 

3. All documents that concern or relate to the dangers and/or hazards 

associated with sugar dust and/or cornstarch, including documents 

concerning the combustive and/or explosive nature of sugar dust 

and/or cornstarch at any facility owned, operated, or in any way 

controlled by Imperial on or before February 7, 2008. 

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4. All documents that concern or relate to cleanliness and/or 

housekeeping, including but not limited to the dangers and/or 

hazards associated with lack of cleanliness and/or housekeeping, 

the standard or degree of cleanliness and/or housekeeping set by 

Imperial, the methods used to measure cleanliness and/or 

housekeeping, and persons who were responsible for ensuring 

standards were met at any facility owned, operated, or in any way 

controlled by Imperial on or before February 7, 2008. 

5. All documents that concern or relate to the electrical classification 

of locations, including the classification of Class II hazardous 

locations, as defined by 29 C.F.R. § 1910.399, at the facility. 

6. All documents that concern or relate to “hot work,” work with or 

on energized equipment, and/or work with potential ignition 

sources at any facility owned, operated, or in any way controlled 

by Imperial on or before February 7, 2008. 

 

7. All documents that relate to deflagration relief venting or 

deflagration suppression systems for sugar conveyance and 

processing equipment at any facility owned, operated, or in any 

way controlled by Imperial on or before February 7, 2008. 

8. All documents that relate to the design, construction, and 

maintenance of dust collector systems at any facility owned, 

operated, or in any way controlled by Imperial on or before 

February 7, 2008. 

9. All documents that relate to the maintenance of screw augers at the 

facility. 

10. All documents that relate to the type of materials that should be 

used for exterior walls or roofs in Class II, Division 1 or 2 areas at 

any facility owned, operated, or in any way controlled by Imperial 

on or before February 7, 2008. 

11. All documents that relate to the use of bearing temperature, belt 

alignment, and vibration detection monitors on processing and 

conveyance equipment, including the bulk material steel conveyor 

belts and inside of the bucket elevators any facility owned, 

operated, or in any way controlled by Imperial on or before 

February 7, 2008. 

12. All documents that relate to scrubber machines and/or gasoline and 

propane powered industrial trucks that were used at the facility, 

including but not limited to the areas in which the scrubber 

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machines and/or trucks were used, and any ratings for hazardous 

locations that were held by the trucks and/or scrubber machines. 

13. All documents that support or refute Imperial’s denial in its 

Answer of the allegations in the Complaint. 

14. All documents that support or refute Imperial’s affirmative 

defenses raised in its Answer to the Complaint. 

 *** 

 18. All documents Imperial intends to rely upon to support its 

contention that it did not commit violations as alleged in the 

Complaint and Citations and Notifications of Penalty. 

 19. All documents Imperial intends to rely upon to support its 

contention that it did not commit Willful violations as alleged in 

the Complaint and Citations and Notifications of Penalty. 

 20. All documents Imperial intends to rely upon to support its 

contention that it should not be subject to instance-by-instance 

penalties for Willful violations as alleged in the Complaint and 

Citations and Notifications of Penalty. 

 21. All documents Imperial intends to rely upon to support its 

contention that it should not be subject to instance-by-instance 

penalties for Willful violations as alleged in the Complaint and 

Citations and Notifications of Penalty. 

 *** 

 26. All documents that relate to the conditions identified in Citation 2, 

Items 16 through 19. 

 27. All documents that relate to the conditions identified in Citation 2, 

Item 25(a) and (b). 

 28. All documents that relate to the conditions identified in Citation 1, 

Item 1. 

 

 29. All documents that relate to the conditions identified in Citation 1, 

Item 3. 

 30. All documents that relate to the conditions identified in Citation 1, 

Items 7 through 14. 

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 31. All documents that relate to the conditions identified in Citation, 1, 

Items 15 through 19. 

 32. All documents that relate to the conditions identified in Citation 1, 

Items 20 through 51. 

(Exhibit C, attached hereto). 

 In response to Complainant’s Requests for Documents, Respondents provided a single 

disc containing 199 pages of documents (numbered “IMPERIAL-0000001 to IMPERIAL0000199”), consisting primarily of (1) e-mail correspondence from Graham H. Graham, 

Respondents’ Vice President of Operations at the time of the February 7, 2008, Port Wentworth 

refinery explosion, and (2) 102 pages of documents that Respondents received from Mr. Graham 

through his private legal counsel. Respondents have not produced any other documents in 

response to Complainant’s first discovery requests and have not identified with specificity, by 

Bates number, document name, or otherwise, any other documents that are responsive to 

Complainant’s discovery requests. 

 In addition, in response to Complainant’s First Interrogatory Nos. 1-4, 7, and 9-25, 

seeking the identification of persons with knowledge of facts regarding Respondents’ defenses, 

affirmative defenses, and various hazards and conditions specified in these interrogatories, 

Respondents’ provided the following response: 

[P]ersons listed in Appendix A to these responses may have 

knowledge of facts [that are the subject of the Request]. Upon 

information and belief, Imperial notes that Complainant has 

previously interviewed each of the referenced persons, on one or 

more occasions, to obtain information sought in this request. 

Current or former members of Imperial’s management may be 

contacted only through counsel for Imperial. 

Respondents subsequently asserted that identification of persons with knowledge regarding the 

matters set forth in Complainant’s several interrogatories is “asking Imperial counsel” to do 

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Complainant’s job. (Exhibit A, April 24, 2009, letter at p. 4). Respondents assert that 

Complainant interviewed, or had opportunity to interview, “each and every employee of the 

company...presumably to obtain the very information now sought in the discovery requests,” 

and that if Complainant failed to ask questions of these persons about these subject areas, “such 

failure should not be suffered by Imperial.” (Id.). 

III. ARGUMENT AND CITATION OF AUTHORITY 

“Parties may obtain discovery regarding any matter, not privileged, which is relevant to 

the subject matter involved in the pending action, whether it relates to the claim or defense of the 

party seeking discovery or to the claim or defense of any other party, including the existence, 

description, nature, custody, condition and location of any books, documents, or other 

tangible things and the identity and location of persons having knowledge of any discoverable 

matter.” Fed.R.Civ.P. 26(b)(1) (emphasis added). Complainant’s interrogatories and requests for 

documents clearly seek relevant information including the existence of documents and identities 

of persons with relevant knowledge of certain specified topics. 

A. Interrogatories 

1. Respondents are required to specify the records that are responsive to 

Complainant’s discovery requests. 

Rule 33(d) of the Federal Rules of Civil Procedure (“Option to Produce Business 

Records”) provides in relevant part: 

If the answer to an interrogatory may be determined by examining, auditing, 

compiling, abstracting, or summarizing a party's business records (including 

electronically stored information), and if the burden of deriving or ascertaining 

the answer will be substantially the same for either party, the responding party 

may answer by: 

(1) specifying the records that must be reviewed, in sufficient detail to enable 

the interrogating party to locate and identify them as readily as the 

responding party could. 

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Fed.R.Civ.P. 33(d) (emphasis added). Rule 37(a)(4) provides that “an evasive or incomplete” 

answer is to be treated as a “failure to answer.” Fed.R.Civ.P. 37(a)(4). 

Rule 33(d) requires that, if documents are referenced as responsive to an interrogatory, all 

such documents be identified in some manner so that the party that served the discovery request 

may as easily locate responsive documents as the party responding to the requests. An 

Interrogatory response asserting Rule 33(d), whether expressly or not, requires more than a broad 

identification of documents kept in the normal course of business. A responding party may refer 

to business records in lieu of a narrative response if those records are clearly identified. 

USCFTC v. American Derivatives Corp, 2007 WL 1020838, *3 (N.D.Ga., Mar. 30, 2007) 

(emphasis added); L.H. v. Schwarzenegger, 2007 WL 2781132, *2 (E.D.Cal., Sept. 21, 2007) 

(“[[I]n situations where a requesting party has asked for much information, and this information 

could be gleaned from reference to the responding party's records, the law permits a responding 

party to specifically direct the requesting party to such records.[] The reference to such records, 

however, must be specific and designed to provide the information requested.”) 

 Here, Respondents’ broad and general reference to unidentified records that they state 

were previously produced, or to which “access” was provided during the OSHA inspection, does 

not meet the requirements of Rule 33. Respondents’ invocation of Rule 33(d), in referencing 

documents in response to interrogatories in lieu of providing written responses, must include 

specification of the records that Respondents believe contain responsive information, and in 

“sufficient detail” to enable Complainant to locate such records. Respondents have not made 

this effort in response to the initial requests or Complainant’s subsequent requests made in a 

good faith effort to resolve this matter. 

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To the extent that Respondents would rely upon 29 C.F.R. 2200.52(c) and claim that 

Complainant has had “ample opportunity” to obtain the information sought by discovery, 

Commission Rule 2200.52(c) provides only that the “frequency or extent of the discovery 

methods provided by these rules may be limited by the Commission or Judge if it is 

determined that: (1) the discovery sought is unreasonably cumulative or duplicative, or is 

obtainable from some other source that is more convenient, less burdensome, or less expensive; 

(2) the party seeking discovery has had ample opportunity to obtain the information sought by 

discovery in the action; or (3) the discovery is unduly burdensome or expensive, taking into 

account the needs of the case, limitations on the parties’ resources, and the importance of the 

issues in litigation.” (emphasis added). There has been no legal determination that the discovery 

sought by Complainant should be limited due to any of the reasons set forth in the rule. Further, 

Respondents have not identified with any specificity the responsive documents, which they claim 

Complainant had “ample opportunity” to obtain, thus making it impossible for Complainant to 

ascertain what documents the Respondents deem are responsive and purportedly cumulative or 

burdensome to produce at this time. Respondents’ position requires Complainant to respond to 

her own discovery requests, which is not the intent of the discovery procedures, either in letter or 

in spirit. 

2. Respondents are required to identify the persons with knowledge 

regarding the subject areas identified in several interrogatories. 

In response to several interrogatories (First Interrogatory Nos. 1-4, 7, and 9-25) seeking 

the identification of persons with knowledge of the facts pertaining to several different subject 

areas,

1

 Respondents referred Complainant to a list of over 100 individuals in Respondents’ 

 

1

 The interrogatories at issue request the identification of persons with knowledge of facts regarding: Respondents’ 

defenses (#1), affirmative defenses (#2), hazards associated with sugar dust and/or cornstarch (such as fire, 

explosion, combustion, deflagration, and/or dust accumulations) (#3), housekeeping with respect to sugar dust 

10
Appendix A to their discovery responses, which is a 2 1⁄2 page list of management and nonmanagement employees. (Exhibit A, Appendix A). Respondents state in response to each of the 

interrogatories at issue that persons on this list “may have knowledge of facts responsive to 

Complainant’s First Interrogatories, facts related to Imperial’s denials of defenses to the 

allegations in the Complaint, and facts related to Imperial’s efforts to reduce the hazards alleged 

in the Complaint.” (Id.). Respondents make no effort to identify which of these persons, in fact, 

have knowledge that Respondents deem responsive to any of the interrogatories. As such, 

Respondents would have Complainant identify such persons based on any information that 

Complainant may have obtained during the investigation. 

Respondents’ position appears to be that Complainant’s sole opportunity to determine 

what persons have knowledge of the requested facts was during the investigation, and that, if 

Complainant did not obtain the information or did not interview every management and nonmanagement employee of Respondents and its contractors, then Complainant is not entitled to 

the discovery it now seeks. Respondents’ position also assumes that the only persons with the 

requested knowledge are those whom Complainant allegedly interviewed or had the 

“opportunity” to interview during the investigation, and that no information or facts could have 

developed or been discovered by Imperial since the issuance of the citations in July 2008. 

Contrary to Respondents’ assertion, discovery requests asking Respondents to identify the 

persons that they believe have knowledge of the matters set forth in the interrogatories is not 

 and/or cornstarch at the facility (#4), accumulations of sugar dust and/or cornstarch on workroom floors and 

elevated surfaces (#7), electrical classification locations (#9), relief venting and deflagration suppression systems 

(#10), maintenance of dust collector systems and screw augers(#11), the types of materials that should be used for 

exterior walls or roofs in Class II, Division 1 or 2 areas (#12), the use of detection devices for bearing temperature, 

belt alignment, and vibration detection monitors (#13), scrubber machines and/or powered industrial trucks and their 

locations of use (#14), conditions cited in Citation 2, Items 16 through 19 (#15), conditions cited in Citation 2, Items 

25(a) and (b) (#16), conditions cited in Citation 1, Item 1 (#17), conditions cited in Citation 1, Item 3 (#18), 

conditions cited in Citation 1, Items 7 through 14 (#19), conditions cited in Citation 1, Items 15 through 19 (#20), 

conditions cited in Citation 1, Items 20 through 51 (#21), and persons with knowledge of facts and reasons that any 

Citation classified as “willful” should not be so classified (#25). 

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“asking Imperial counsel” to do Complainant’s job; rather, Respondents’ refusal to provide the 

requested information requires Complainant to both serve and answer its own discovery 

responses. (Exhibit A, April 24, 2009, letter at p. 4). Complainant thus seeks an order 

compelling Respondents to provide responses to the interrogatories at issue. 

B. Requests for Production of Documents 

Pursuant to Rule 34(b)(2)(B), when responding to a request for documents, 

For each item or category [requested], the response must either 

state that inspection and related activities will be permitted as 

requested or state an objection to the request, including the 

reasons. 

 Respondents’ objection to producing documents, which they believe were already 

provided during the inspection, is an inadequate and incomplete response to Complainant’s 

document requests, as Respondents have again failed to identify what documents that they 

believe are responsive to each request. Complainant, therefore, cannot identify whether such 

documents are, in fact, already in her possession as a result of the investigation. Further, 

Respondents’ position that they “provided access to” unidentified documents during the 

investigation is vague and not responsive to the requests. Complainant has absolutely no way of 

identifying or obtaining such documents other than via discovery in this proceeding. If 

documents that were allegedly made available but not produced during the investigation are 

responsive to any of the requests, Respondents are obligated to produce them in discovery. 

Respondents’ position again assumes that no documents were obtained, identified, or 

discovered since the citations were issued. However, Respondents clearly have documents that 

were not provided during the investigation, which is evidenced by exhibits Respondents filed in 

this proceeding in connection with their Motion for Partial Summary Judgment, concerning the 

bucket elevator specifications and speeds. (See Exhibits A-F in Attachment 1 to Respondents’ 

12
Motion for Partial Summary Judgment, filed January 27, 2009). No such documents were 

produced to Complainant during in the investigation or in response to her discovery requests. 

Respondents have unilaterally and impermissibly limited the extent of discovery pursuant 

to 29 C.F.R. § 2200.52(c), which is a matter solely within the power of the Commission or the 

Judge. See 29 C.F.R. § 2200.52(c) (“The frequency or extent of the discovery methods provided 

by these rules may be limited by the Commission or Judge” if certain determinations are made); 

see also Fed.R.Civ.P. 26(b)(2)(C)(i) (“On motion or on its own, the court must limit the 

frequency or extent of discovery otherwise allowed by these rules or by local rule” if certain 

determinations are made). Complainant thus seeks an order compelling Respondents’ to provide 

responses to the discovery requests at issue. 

IV. CONCLUSION 

 WHEREFORE, for the foregoing reasons, Complainant respectfully requests that the 

present Motion be granted. 

Respectfully submitted, this 1st day of June, 2009. 

ADDRESS: CAROL DE DEO 

Deputy Solicitor of Labor 

Office of the Solicitor 

U. S. Department of Labor STANLEY E. KEEN 

61 Forsyth Street, S.W. Regional Solicitor 

Room 7T10 

Atlanta, GA 30303 SHARON D. CALHOUN 

 Counsel 

Telephone: 404/302-5435 

Facsimile: 404/302-5438 By: s/Karen E. Mock 

Mock.karen@dol.gov KAREN E. MOCK 

Donaldson.angela@dol.gov Senior Trial Attorney 

ANGELA F. DONALDSON 

 Trial Attorney 

SOL Case No. 08-60093 Attorneys for the Complainant 

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CERTIFICATE OF SERVICE 

 I certify that all parties have consented that all papers required to be served may be 

served and filed electronically. I further certify that a copy of Complainant’s Motion to Compel 

Responses to Interrogatories and Requests for Production of Documents and Memorandum in 

Support, with all exhibits thereto, was electronically served on June 1, 2009 on the following 

parties: 

Charles H. Morgan, Esq. 

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 

 s/Karen E. Mock_________

KAREN E. MOCK 

 Senior Trial Attorney 

SOL Case No. 08-60093 

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