United States of America

 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 1120 20th Street, N.W., Ninth Floor

 Washington, DC 20036-3457 

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET Nos. 16-1458 & 16-1468 

PILGRIM’S PRIDE CORPORATION, 

Respondent. 

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UNITED FOOD AND COMMERCIAL 

WORKERS INTERNATIONAL UNION 

(UFCW), LOCAL 1996, 

Authorized Employee Representative. 

ORDER GRANTING RESPONDENT’S MOTION TO COMPEL

The Respondent has filed a motion to compel discovery dated May 4, 2017, seeking an 

order overruling the Secretary’s objections to certain propounded interrogatories and requests for 

production and compelling the Secretary to provide information and materials that are responsive 

to those discovery requests. The Secretary filed its opposition to the motion dated May 18, 2017. 

The Respondent filed a reply (and later, on June 8, 2017, an amended reply) to the Secretary’s 

opposition. The Authorized Employee Representative has not made any filing respecting the 

motion to compel.

The discovery requests at issue seek information relating to an administrative inspection

warrant issued on March 9, 2016 by the U.S. District Court for the Middle District of Florida 
2 

(hereinafter “district court”) authorizing the Secretary to conduct a comprehensive inspection of 

the Respondent’s poultry processing facility located in Live Oak, Florida. The Respondent seeks 

the requested information with a view toward developing a more complete evidentiary record for 

a potential motion challenging the issuance of the warrant on the ground that the affidavit filed in 

support of the application for the warrant contained false statements and/or material omissions 

that were knowingly or intentionally made, or made with reckless disregard for the truth, without 

which probable cause would not have existed for issuance of the warrant. See Franks v. 

Delaware, 438 U.S. 154, 171 (1978) (holding that in criminal proceedings, where a “defendant 

makes a substantial preliminary showing that a false statement knowingly and intentionally, or 

with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if 

the allegedly false statement is necessary to the finding of probable cause, the Fourth 

Amendment requires that a hearing be held at the defendant’s request”); Tri-State Steel Constr., 

Inc., 15 BNA OSHC 1903, 1917 (No. 89-2611, 1992) (consolidated) (applying the Franks

standard in challenge to veracity of affidavit filed in support of an administrative inspection 

warrant to conduct an inspection and investigation pursuant to sections 8(a) and 8(f) of the OSH 

Act), aff’d 26 F.3d 173 (D.C. Cir. 1994). 

The Secretary objected to providing information and material that would be germane to a 

Franks challenge to the affidavit that had been filed with the district court to support the 

application for the administrative inspection warrant, principally on relevancy grounds. In its 

opposition to the motion to compel, the Secretary asserts the information and material sought are 

not relevant because the Respondent had not made a “substantial preliminary showing” that the 

affidavit contained any false statements, so that discovery requests that sought information and 
3 

material germane to such a “substantial preliminary showing” should not be permitted. See TriState Steel, 15 BNA OSHC at 1917-20. 

For the reasons described below, the motion to compel is granted.

Background 

The Respondent owns and operates poultry processing facilities across the United States, 

including a facility in Live Oak, Florida that is the subject of the underlying citations here. 

On January 27, 2016, the area office of the Occupational Safety and Health 

Administration (OSHA) located in Jacksonville, Florida, received a complaint from a person 

employed at the Live Oak facility reporting that an employee had been injured in a fall from a 

ladder. 

On the morning of February 1, 2016, a team of three OSHA officials from the 

Jacksonville area office, led by Assistant Area Director Michelle Gonzales, arrived at the facility 

to commence an inspection and investigation. During the opening conference AAD Gonzales

informed the facility manager, Mr. Thomas Giovanni, that OSHA intended to conduct an 

inspection of the facility as a result of the ladder-fall complaint, and intended also to conduct a 

wider scope inspection pursuant to a Regional Emphasis Program for Poultry Processing 

Facilities (Poultry REP) in effect in OSHA Region IV, which is headquartered in Atlanta, 

Georgia. (Gonzales Declaration 5/16/2017, ¶4; Giovanni Declaration 5/2/2017, ¶ 5). 

Giovanni consented to OSHA conducting the inspection and investigation on the 

complaint, but denied consent for any broader inspection pursuant to the Poultry REP. Giovanni 

informed AAD Gonzales that it would be necessary for OSHA to obtain a warrant in order to 

conduct its intended wider inspection under the Poultry REP. (Gonzales Decl. ¶ 9; Giovanni 

Decl. ¶¶ 10-11.) 
4 

The OSHA team departed the facility late afternoon on February 1, 2016, but the team

coordinated with the Respondent for the team to return later that evening to continue the 

investigation into the complaint. Accordingly, around 11:30 p.m. that evening, the team returned 

to the facility as planned, and departed in the early morning hours of February 2, 2016. 

(Gonzales Decl. ¶¶ 11-13; Giovanni Decl. ¶¶ 12-13.) 

On February 10, 2016, two OSHA officials from the Jacksonville area office arrived at 

the Live Oak facility to conduct an inspection relating to a different employee complaint—this 

complaint involved reported lockout-tagout violations—and also to continue investigating the 

earlier ladder-fall complaint. The Respondent consented to the conduct of the complaint

investigations, but also informed the inspectors that the Respondent would not consent to 

widening the scope of the inspection beyond investigation of the two complaints. (Gonzales 

Decl. ¶ 15; Giovanni Decl. ¶¶ 21-23.) 

The Poultry REP under which OSHA sought to conduct a broader inspection than a 

complaint investigation is Directive Number CPL 16/08, subject “Regional Emphasis Programs 

for Poultry Processing Facilities,” with an effective date of October 26, 2015.

Section I of the Poultry REP, titled “Purpose,” includes the following pronouncement

(emphasis supplied): 

This REP will provide the administrative authority to evaluate the 

employers’ workplace(s) at all programmed, unprogrammed, or other 

limited-scope inspections. Area offices will normally conduct inspections 

for all complaints, formal and non-formal, which contain allegations of 

potential worker exposure to poultry processing hazards unless there are 

significant resource implications. In addition and where applicable, all 

unprogrammed inspections will be expanded to include all areas required 

by this emphasis program.

 

The “Scheduling” section of the Poultry REP (§ IX) prescribes a neutral protocol for 

selecting which poultry processing facilities within the domain of any given OSHA area office 
5 

are to receive a comprehensive health and safety inspection pursuant to the REP that year, as 

well as the order in which such facilities are to be inspected—the REP refers to the resulting 

sequential inspection list as the “program inspection register.” However, paragraph IX.d. states 

that “[e]stablishments may be selected from the inspection register for inspection in an order that 

makes efficient use of available resources.” This provision seems to authorize an area office to 

alter the sequence of inspection that had been neutrally established, provided that such an 

alteration of that sequence “makes efficient use of available resources.” 

Paragraphs a, b and c of the Poultry REP’s “General Procedures” section (§ X) provide as 

follows: 

a. All inspections conducted at poultry processing facilities, either livekill or further processing operations, are covered by this instruction.

b. In accordance with the FOM, Chapter 9, Complaint and Referral 

Processing, Area Offices will normally conduct an inspection for all 

complaints, formal or non-formal, which contain allegations of poultry 

processing hazards.

c. If an employer refuses to allow the compliance officer to perform a 

comprehensive inspection under this program to cover poultry 

processing operations, a warrant shall be sought in accordance with 

procedures in the current FOM.

The Poultry REP’s “Inspection Procedures” section (§ XI) provides in paragraph XI.a

that “[a]ny inspection activity performed under this emphasis program will be conducted as both 

safety and health comprehensive inspections.” (Emphasis in original). Paragraph XI.b.1. 

describes certain circumstances in which an unprogrammed inspection (such as a complaint 

investigation) is not required to be expanded to a comprehensive inspection under the Poultry 

REP—e.g., “The CSHO will review the inspection file for the earlier inspection and confer with 

the Area Office managers to determine if an unprogrammed inspection is to be expanded.” 

Paragraph XI.b.i. thus seems to be the only provision of the Poultry REP that limits the general 
6 

policy set forth in § I that “all unprogrammed inspections will be expanded” to a comprehensive 

inspection under the Poultry REP.

The “Outreach” section of the Poultry REP (§ XIV) directs all area offices in Region IV 

to “conduct outreach activities intended to reach as many employers and stakeholders as is 

practicable.” The “Outreach” section provides further: “The method of outreach is at the Area 

Director’s discretion; however, all efforts shall begin at least three months before the initiation of 

inspections.”1 (Emphasis in original). The Outreach section instructed OSHA area offices to do 

the following: 

Upon establishing a list of affected worksites, provide a letter to 

inform industry, employees, government and other stakeholders of 

hazards associated with that particular industry, and inform 

employers of your outreach and targeting plan prior to 

commencement of inspection activities. 

(Emphasis supplied). The Poultry REP contained an exemplar of such an “outreach and 

targeting plan” letter in its Appendix A. That exemplar contains the following declaration: 

“Enforcement activities will begin not sooner than three months after outreach begins ....” 

On February 26, 2016, after the Respondent had denied the OSHA inspection team 

consent to conduct a comprehensive inspection of its Live Oak facility under the Poultry REP, 

the Area Director of OSHA’s Jacksonville Area Office (Brian Sturtecky) executed an affidavit 

that was later filed with the district court in support of an application for a warrant authorizing

OSHA “to conduct and complete a comprehensive safety inspection” of the Live Oak facility 

pursuant to the Poultry REP. The affidavit stated, among other things, that the Live Oak facility 

“has been selected for inspection pursuant to” the Poultry REP (Sturtecky Aff. ¶ 3). The 

 1

 Thus, assuming outreach efforts commenced on the effective date of the Poultry REP 

(October 26, 2015), the earliest date inspections under Poultry REP could be initiated would 

have been three months later, on or after January 26, 2016. 
7 

affidavit described the neutral procedure set forth in the Poultry REP for the development of the 

program inspection register. (Id. at ¶¶ 4-6). The affidavit stated further that the Jacksonville 

area office “generated correspondence to the ... poultry processing facilities within its 

jurisdiction notifying them of its outreach efforts and targeting plan prior to inspection via 

certified mail,” and that the area office had “received the green card return receipt with signature 

noting Pilgrim’s ... receipt of the correspondence” (Id. at ¶ 6), although the affidavit did not 

indicate either the date of that correspondence or the date of its delivery as is typically recorded 

on the green card return receipt. The affidavit stated that the three existing poultry processing 

facilities within the area office’s territory “were numbered consecutively” and that a random 

table list was utilized to establish an “order of inspection” under the Poultry REP for those three 

facilities. (Id.). The affidavit does not specify the date on which the inspection list was 

generated, but it implicitly represents that the list was generated before February 1, 2016—

paragraph 7 states that at the time of the inspection on February 1, 2016, the Live Oak facility 

“was number one on the inspection list compiled pursuant to the REP” and that one of the OSHA 

team members present at the opening conference that day was there for the purpose of

conducting a comprehensive inspection pursuant to the Poultry REP.

On March 9, 2016, a United States Magistrate Judge granted the application for a warrant 

and issued a warrant for inspection of the Live Oak facility to “extend to all items delineated” in

the Poultry REP. 

On March 15, 2016, OSHA commenced an inspection of the facility pursuant to the 

warrant. The inspection was concluded on March 28, 2016, and resulted in the issuance of the 

underlying citations on July 21, 2016, which included citation items related to both of the 

complaint investigations as well as to the comprehensive inspection authorized by the warrant. 
8 

The material filed in connection with the Respondent’s motion to compel reveals a 

conflict in the accounts of what AAD Gonzales said to Pilgrim’s officials on February 1, 2016, 

and in the early morning hours of February 2, 2017, when she sought consent to broaden the 

scope of the ladder-fall complaint investigation pursuant to the Poultry REP. The Respondent 

has filed several affidavits that aver that on February 1 & 2, 2017, AAD Gonzales stated that the 

unprogrammed complaint investigation had “triggered” a comprehensive investigation under the 

REP that could last up to six months. (Giovanni Decl., ¶¶ 5, 9; Cheryl Smith Decl. 6/8/2017, ¶6; 

Halie Orr Decl. 5/31/2017, ¶ 6). The Giovanni declaration also avers that in the early morning 

hours of February 2, 2016, AAD Gonzales informed him that because OSHA understood that the 

employee who had fallen from the ladder had been hospitalized, and because the Respondent had 

not reported this hospitalization to OSHA, that the inspectors had the authority under the Poultry 

REP to expand the complaint investigation “to a full scope inspection.” (Giovanni Decl. ¶¶ 14-

15 & 19). 

Each of the three declarations the Respondent filed in support of the motion contained

averments that throughout the course of the two complaint inspections on February 1, 2 and 10, 

2016, none of the OSHA officials stated that the Live Oak facility had been selected for a 

programmed inspection pursuant to an inspection list created pursuant to the Poultry REP. 

(Giovanni Decl. ¶ 23; Smith Decl. ¶¶ 7-8; Orr Decl. ¶¶ 7-8). 

Regarding the Respondent receiving Poultry REP “outreach” correspondence from the 

area office, facility manager Giovanni averred that he is “not aware of the Live Oak facility 

receiving any REP outreach correspondence from” the OSHA area office in Jacksonville. 

(Giovanni Decl. ¶ 25).
9 

The Secretary filed a declaration that AAD Gonzalez signed on May 16, 2017, in 

opposition to the Respondent’s motion. The averments of AAD Gonzales’ declaration conflict 

with the averments of the three declarations that the Respondent filed in support of its motion in 

the following salient respects: AAD Gonzales averred (1) that the Live Oak facility had been 

identified as “number one on the inspection list compiled pursuant” to the Poultry REP at some 

unspecified time prior to the time the OSHA team arrived at the Live Oak facility on February 1, 

2017 (id. ¶¶ 3-4), (2) that during the opening conference on February 1, 2016, she informed the 

Respondent that OSHA intended to conduct a comprehensive inspection of the facility pursuant 

to the REP “because Pilgrim’s was one of the establishments listed on the inspection list” 

(Gonzales Decl. ¶¶ 3-4), (3) that at the opening conference on February 1, 2016, she personally 

“provided Pilgrim’s with ... another correspondence letter notifying Pilgrim’s of OSHA’s 

outreach and targeting plan” under the Poultry REP2

 (id., ¶ 7), (4) that in the early morning hours 

of February 2, 2016, she never stated that a reporting violation had triggered a comprehensive 

inspection (id., ¶ 14), and (5) she “never made any statements suggesting that a complaint 

triggered a comprehensive inspection under the Poultry REP” (id., ¶ 16). 

Further in support of the motion, the Respondent has filed material that it argues “support 

the inference that no Inspection List existed, or if one does exist, it was created in response to 

Pilgrim’s refusal to allow an expansion of the Ladder Fall Complaint unprogrammed 

inspection.” (Memorandum in support of motion, p. 15). 

 2 Gonzalez’s declaration reflects that this “outreach and targeting plan” correspondence 

was attached to her declaration as “exhibit 2.” However, neither “exhibit 2” nor the other two 

exhibits referenced in the declaration were filed with the Commission along with the declaration 

itself. If this “outreach” correspondence was a copy of correspondence that had been sent to the 

Respondent before the opening conference on February 1, 2016, the correspondence would seem 

to have been a document responsive to disputed Request for Production No. 22 in case 16-1458, 

infra, and disputed Request for Production No. 31 in case 16-1468, infra. 
10 

The documents to which the Respondent points are:

• The case file diary created by the area office, which contains no reference to the 

creation of an inspection list, but rather whose entry for 2/1/2016 states simply 

that “[a]s per REP, CSHOs explained it was going to be a comprehensive insp.” 

(Exh. 9 to Respondent’s Memorandum). 

• The safety narrative created by the area office that states the inspection “was 

initiated ... due to a safety complaint” and “was supposed to be expanded to a 

comprehensive inspection as delineated in the” Poultry REP. (Exh. 10 to 

Respondent’s Memorandum).

• The safety narrative created by the area office that notes the Respondent objected 

to the expansion of the inspection but contains no reference to any inspection list: 

“The employer objected [to] the comprehensive inspection indicating there was 

no reason to expand it even though the CSHOs explained the purpose and scope 

under the Poultry REP. Still the employer agreed to proceed with the complaint 

inspection.” (Id.) 

• The OSHA compliance officer’s inspection notes that state the Respondent did 

not provide “authorization to expand under” the REP, but contain no mention of 

a targeted inspection list. (Exh. 11 to Respondent’s Memorandum).

• A Site Specific Targeting inspection cycle list relating to an inspection that 

OSHA had conducted at another poultry processing facility that the Respondent 

operates within OSHA Region IV, which the Secretary produced to the 

Respondent (apparently without objection) in response to a discovery request in a 

other matter before the Commission (Docket No. 15-1699). (Exhibit 3 to 

Respondent’s Amended Reply Memorandum).

• A redacted Poultry REP inspection list that OSHA officials provided to the 

Respondent prior to beginning a list-based programmed REP inspection at 

another of the Respondent’s facilities within OSHA Region IV. (Exhibit 4 to 

Respondent’s Amended Reply Memorandum).

The Respondent seeks to compel responses from the Secretary to the following 

interrogatories and requests for production: 
11 

Interrogatory No. 11 (Docket No. 1458): If your contention is that the

inspection at issue in this matter was a programmed inspection, please

identify the program.

Amended Answer: The Secretary objects to this Interrogatory and declines

to respond to the extent it seeks information that is not relevant and is not 

reasonably calculated to lead to the discovery of admissible evidence.

Subject to and without waiving said objections, the Secretary directs

Respondent to the OSHA investigative file relating to Inspection 1123183 

attached hereto as Health Exhibit 1, particularly the Health Narrative. 

Please also see the Secretary's Privilege Log, attached hereto as Health,

Exhibit 2.

Interrogatory No. 20 (Docket No. 1468): If your contention is that the

inspection at issue in this matter was a programmed inspection, please

identify the program.

Amended Answer: The Secretary objects to this Interrogatory to the 

extent it seeks information that is not relevant and is not reasonably 

calculated to lead to the discovery of admissible evidence. Subject to and 

without waiving said objections, the Secretary directs Respondent to the 

OSHA investigative file relating to Inspection 1122733 which has been

produced as Safety, Exhibit 1, particularly the Safety Narrative and 

Complaint Item Responses. The Secretary has also produced a Privilege

Log, attached thereto as Safety, Exhibit 2.

Interrogatory No. 13 (Docket No. 1458) and Interrogatory No. 22 (Docket No. 

1468): Identify all individuals involved in, or with knowledge of, the creation

of "a targeted inspection list pursuant to the Poultry REP," as stated on 

pages 4-5 of the "Ex Parte Application for an Administrative Warrant" in

this case.

Amended Answer: The Secretary objects to this Interrogatory and declines

to respond to the extent it seeks information that is not relevant and is not 

reasonably calculated to lead to the discovery of admissible evidence and 

on the grounds that it is overly broad and ambiguous.

Interrogatory No. 14 (Docket No. 1458): With respect to Pilgrim's Live Oak 

facility's selection for inspection "[u]sing Random Table List One 

referenced in Appendix C of CPL 02-00-025," as stated on page 5 of the

"Ex Parte Application for an Administrative Warrant" in this case, please

provide the following: a. The date on which Pilgrim's was selected for

inspection; b. Who made the decision to select Pilgrim's for inspection;
12 

and c. Any and all criteria used, or facts related to, the selection of 

Pilgrim's for inspection.

Amended Answer: The Secretary objects to this Interrogatory and declines 

to respond to the extent it seeks information that is not relevant and is not 

reasonably calculated to lead to the discovery of admissible evidence.

Interrogatory No. 23 (Docket No. 1468): With respect to Pilgrim's Live Oak

facility's selection for inspection "[u]sing Random Table List One

referenced in Appendix C of CPL 02-00-025," as stated on page 5 of the 

"Ex Parte Application for an Administrative Warrant" in this case,

please provide the following: a. The date on which Pilgrim's was selected

for inspection; b. Who made the decision to select Pilgrim's for

inspection; and c. Any and all criteria used, or facts related to, the

selection of Pilgrim's for inspection.

Amended Answer: The Secretary objects to Respondent's Request and 

declines to respond to the extent it seeks information that is not relevant

and is not reasonably calculated to lead to the discovery of admissible 

evidence.

RPD No. l (Docket No. 1458): All documents identified in your answers to

the Interrogatories served contemporaneously with these requests for

production of documents, including, but not limited to those documents

identified in your answers to Interrogatory Nos. 1-16.

Answer: The Secretary objects to this Request to the extent it seeks

documents protected from disclosure by one or more of the following 

privileges: (1) the deliberative process privilege; (2) the work product 

privilege; (3) the attorney-client privilege; (4) the Governmental privilege

for investigative files and techniques; and (5) the informer's privilege. The 

Secretary further objects to this Request to the extent it seeks documents 

or records protected from disclosure by the Privacy Act of 1974 ("the 

Privacy Act''), 5 U S.C. § 552a. Subject to and without waiving said

objections, the OSHA inspection file for Inspection No. 1123183, is hereby

produced as Health Exhibit 1, subject to any privileges specified therein.

Please also see the Secretary's Privilege Log, attached hereto as Health, 

Exhibit 2. [Irrelevant portion of answer omitted].

RPD No. 1 (Docket No. 1468): All documents identified in your answers to 

the Interrogatories served contemporaneously with these requests for

production of documents, including, but not limited to those documents

identified in your answersto Interrogatory Nos. 1-26.
13 

Answer: The Secretary objects to this Request to the extent it seeks

documents protected from disclosure by one or more of the following

privileges: (1) the deliberative process privilege; (2) the work product 

privilege; (3) the attorney-client privilege; (4) the governmental privilege

for investigative files and techniques; and (5) the informer’s privilege. The 

Secretary further objects to the Requests to the extent they seek documents 

or records protected from disclosure by the Privacy Act of 1974 ("the 

Privacy Act"), 5 US.C. § 552a. Subject to and without waiving said

objections, the OSHA inspection file for Inspection No. 1122733 is hereby

produced as Safety Exhibit 1, subject to any privileges specified therein.

Please also see the Secretary's Privilege Log, attached hereto as Safety,

Exhibit 2. [irrelevantportion of answer omitted].

RPD No. 21 (Docket No. 1458) and RPD No. 30 (Docket No. 1468): The 

"internet search of poultry processing facilities" identified on page 5 of the 

"Ex Parte Application for an Administrative Warrant" in this case.

Amended Answer: The Secretary objects to Respondent's Request and 

declines to respond on the grounds that it seeks information that is not 

relevant and is not reasonably calculated to lead to the discovery of 

admissible evidence. Furthermore, the Secretary objects on the grounds 

that an "internet search" is not a document subject to or capable of 

production.

RPD No. 22 (Docket No. 1458) and RPD No. 31 (Docket No. 1468): The

correspondence sent to Pilgrim's Live Oak facility notifying Pilgrim's of 

OSHA's REP "outreach and targeting plan," as stated on page 5 of the "Ex 

Parte Application for an Administrative Warrant" including any proof of

Pilgrim's receipt of that correspondence.

Amended Answer: The Secretary objects to Respondent's Request and 

declines to respond to the extent it seeks information that is not relevant

and is not reasonably calculated to lead to the discovery of admissible 

evidence. Further, the Secretary objects as Respondent is in possession

and/or control of the correspondence received at the Pilgrim's Live Oak 

facility.

RPD No. 23 (Docket No. 1458) and RPD No. 32 (Docket No. 1468): All

documents related to the selection of Pilgrim's Live Oak facility for

inspection under the REP, including without limitation any and all "cycle

lists" in which Pilgrim's appears.

Amended Answer: The Secretary objects to Respondent's Request and 
14 

declines to respond to the extent it seeks information that is not relevant

and is not reasonably calculated to lead to the discovery of admissible 

evidence and on the grounds that the phrase "related to the selection" is

overly broad and ambiguous.

RPD No. 24 (Docket No. 1458) and RPD No. 33 (Docket No. 1468): All

documents related to the randomization of the REP inspection list that 

listed Pilgrim's Live Oak facility.

Amended Answer: The Secretary objects to Respondent's Request and 

declines to respond to the extent it seeks information that is not relevant

and is not reasonably calculated to lead to the discovery of admissible 

evidence and on the grounds that the phrase "related to the randomization" 

is overly broad and ambiguous.

RPD No. 25 (Docket No. 1458) and RPD No. 34 (Docket No. 1468): All

documents related to the scheduling of Pilgrim's Live Oak facility for

inspection under the REP.

Amended Answer: The Secretary objects to Respondent's Request and 

declines to respond to the extent it seeks information that is not relevant

and is not reasonably calculated to lead to the discovery of admissible 

evidence and on the grounds that the phrase "related to the scheduling" is

overly broad and ambiguous. 

Discussion

The Fourth Amendment governs inspections conducted pursuant to the OSH Act, and 

administrative inspections are subject to the warrant requirement. Marshall v. Barlow's, Inc., 

436 U.S. 307 (1978). OSHA may obtain a warrant to conduct an administrative inspection in 

two ways. It may offer “specific evidence of an existing violation ... [or] ... show[] that 

‘reasonable legislative or administrative standards for conducting an . . . inspection are satisfied 

with respect to a particular [establishment]’.” Id., 436 U.S. at 320-21; Tri-State Steel Constr., 

Inc., 15 BNA OSHC 1903, 1911 (No. 89-2705, 1992) (describing Barlow’s two alternative tests 

for establishing probable cause – the “specific evidence test” and the “administrative plan” test), 

aff’d 26 F.3d 173 (D.C. Cir. 1994). For an inspection conducted pursuant to an administrative 
15 

plan (the sole basis on which the magistrate judge found probable cause to issue the warrant 

here), the plan must be neutral so that employers are insulated from the "unbridled discretion [of] 

executive and administrative officers, particularly those in the field, as to when to search and 

whom to search." Barlow’s 436 U.S. at 323. “[B]ecause employee complaints lack the 

administrative and legislative guidelines that ensure that the target of the search was not chosen 

for the purpose of harassment," Donovan v. Sarasota Concrete Co., 693 F.2d 1061, 1068 (11th 

Cir. 1982), an administrative plan that utilizes an employee complaint as a prompt for the 

conduct an expanded inspection is inconsistent with the Barlow's standard. Trinity Indus., Inc. v. 

OSHRC, 16 F.3d 1455, 1460 (6th Cir. 1994) (holding that a programmed full-scope inspection in 

response to an employee complaint “cannot be the product of the kind of reasonable 

administrative inspection plan proposed in Barlow’s,” and rejecting the Review Commission’s 

conclusion to the contrary in Trinity Indus., Inc., 15 BNA OSHC 1827, 1837-39).

To successfully challenge an administrative inspection warrant under Franks, a cited 

employer “has the burden of proving that the warrant affidavit included (1) false statements (2) 

that were knowingly or intentionally made or made with reckless disregard for the truth and (3) 

that were necessary to the magistrate’s finding of administrative probable cause.” Tri-State 

Steel, 15 BNA OSHC at 1917. 

A theory that might underlie a Franks challenge to the Sturtecky affidavit is that on 

February 1, 2016, when the OSHA inspection team sought to expand the complaint inspection to 

a comprehensive inspection under the Poultry REP, the team was applying the Poultry REP’s 

edict that “all unprogrammed inspections will be expanded to include all areas required by this 

emphasis program,” and that contrary to the representations made in the affidavit, the Live Oak 

facility had not in actuality been previously selected for a comprehensive inspection by use of 
16 

the neutral protocol as precisely prescribed in § IX of the Poultry REP.3 If, upon the conduct of 

a Franks hearing, a preponderance of the evidence establishes that the affidavit contained false 

statements or material omissions pertaining to the putative selection of the Live Oak facility for 

inspection pursuant to the neutral administrative plan set forth in the Poultry REP, and such false 

statements or material omissions were made deliberately or with reckless disregard for the truth, 

then Franks would require that the warrant application be reformed by setting aside the 

misstatements and/or by including the omissions, and determining whether the reformed 

application nonetheless establishes probable cause for issuance of the requested warrant. Franks, 

438 U.S. at 171.

The Secretary argues that discovery of information or material that would be relevant to a 

Franks challenge to an affidavit is available only after the requesting party has met the Franks

standard for entitlement to an evidentiary hearing. The Commission’s decision in Tri-State

provides some support for the Secretary’s position that the necessary showing for mandating a 

Franks hearing—“a substantial preliminary showing that a false statement knowingly and 

intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant 

affidavit, and ... the allegedly false statement is necessary to the finding of probable cause” 

[Franks, 438 U.S. at 155-56]—is the same showing that a cited employer must make to obtain 

discovery of material that would be germane to a Franks challenge. In Tri-State, the 

 3

Exactly one week after the OSHA team here sought to commence a comprehensive 

inspection of the Live Oak facility in conjunction with an unprogrammed inspection, a different 

area office within OSHA Region IV attempted to do the same thing at another poultry processing 

facility based upon the Poultry REP’s command to expand unprogrammed inspections to 

comprehensive inspections. A court issued an inspection warrant on that basis, but a magistrate 

judge later recommended that the warrant be quashed because the attempted expansion of the 

unprogrammed inspection into a comprehensive inspection under the Poultry REP ran afoul of 

the Barlow’s standard. Mar-Jac Poultry, Inc., 2016 WL 8938586 (N.D. Ga.) (Case No. 2:16-

MC-004-JCF, Aug. 5, 2016) (magistrate judge’s report and recommendation approved and 

adopted by district court judge on Nov. 2, 2016, case no. 2:16-CV-192-WCO-JCF). 
17 

Commission agreed with a Commission judge’s denial of a motion to depose the OSHA official 

upon whose affidavit a court had issued an inspection warrant on the ground that the movants

had “failed to make the ‘substantial preliminary showing’ that would have entitled them to 

conduct discovery into the underlying basis, the accuracy, or the completeness of the warrant 

affidavit.” Tri-State Steel, 15 BNA OSHC at 1917. The Commission reviewed six claimed 

misstatements or material omissions of fact in the warrant affidavit and concluded that none of 

them met all three conditions of the Franks standard for entitlement to an evidentiary hearing: 

• The Commission found that the first misstatement was not necessary to the 

magistrate’s finding of probable cause. Tri-State Steel, 15 BNA OSHC at 1917-

18. 

• The Commission concluded that the argument regarding the second claimed 

misstatement simply “makes no sense.” Id. at 1918-19. 

• As to a third item, the Commission concluded there was no intent to deceive with 

respect to a claimed material omission in the affidavit. Id. at 1919. The 

Commission observed further that “while the affidavit might have been more 

clear in informing the magistrate that the inspection of the area described in the 

employee representative’s complaint had basically been completed and that 

OSHA’s intent was therefore to seek a geographic expansion of its inspection, we 

cannot conclude that the affidavit was misleading with respect to these matters.” 

Id. at 1919. 

o Moreover, as to each of the preceding three items, the Commission noted 

that the parties had alerted the magistrate to each of the claimed 

falsehoods or omissions before issuing the warrant, and thus the 

magistrate could not have relied on them in finding probable cause. Id.

• As for a fourth item, the Commission found that the argument challenging a 

claimed misstatement in the affidavit “borders on the frivolous” and “was totally 

irrelevant to the magistrate’s determination of administrative probable cause.” Id.

• As for a fifth item, the affidavit’s omission of mentioning an earlier objection to 

an expanded inspection had been brought to the attention of the magistrate before 

the magistrate issued the warrant. The magistrate was thus aware of the claimed 

omission and it could not have affected the probable cause finding. Id.

• And as to a final item, the claimed misstatement related to a matter of the affiant’s 

opinion and was not an assertion of fact. Id. at 1919-20. 
18 

The Commission’s lengthy treatment of the myriad claimed false statements or material 

omissions in the affidavit in Tri-State Steel does not reflect a holding that the standard for 

conducting discovery into material that would be germane to a Franks challenge is identical to 

the standard for mandating a Franks hearing. Rather, the Commission in Tri-State Steel

essentially upheld a Commission judge’s discretionary ruling on the scope of permitted 

discovery. Cf. Sturm Ruger & Co., 20 BNA OSHC 1720 (No. 99-1873, 2004) (consolidated) 

(concluding the employer had not shown the judge had abused discretion in not permitting 

certain discovery on Franks a claim); Del Monte Corp., 9 BNA OSHC 2136, 2141 (No. 11865, 

1981) (observing that the “decision whether to allow discovery is within the judge's sound 

discretion” that “should be guided by the objective of providing a fair and prompt hearing to the 

parties,” and that “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”); Commission Rule 52(c), 29 C.F.R. § 

2200.52(c) (allowing Commission judge to limit the frequency or extent of discovery if such 

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”). In Tri-State 

Steel, by determining on the complete post-hearing record before it that none of the claimed false 

statements or material omissions could meet each of the three components of the Franks

standard, the Commission implicitly but necessarily concluded that deposing the OSHA official 

who executed the affidavit on which the warrant was issued would not have affected the 

Commission’s rejection of the Franks claim.

It would be paradoxical for the standard for obtaining discovery of matter that would be 

relevant to a Franks challenge to be the same as the standard for mandating a Franks hearing. If 
19 

a party were able to meet the standard for mandating a Franks hearing without conducting

discovery on the issue, there would be a far less compelling need for that discovery than if the 

party were unable to make the “substantial preliminary showing” that Franks requires to obtain a 

hearing. It is particularly paradoxical with respect to the types of discovery requests involved 

here—interrogatories and requests for production—which the Commission’s Rules of 

Procedures make available to the parties as a matter of right in Commission Rules 53 and 55, 29 

C.F.R. §§ 2200.53 & 2200.55. It may be somewhat less paradoxical with respect to the conduct 

of depositions on a Franks issue, in that depositions are not available as a matter of right under 

Commission rule 56(a), 29 C.F.R. § 2200.56(a).4

A more reasoned standard for allowing discovery into material that is germane to a 

Franks hearing would be similar to the standard for allowing discovery in Commission 

 4 In Franks, the Court crafted the “substantial preliminary showing” requirement in part 

in response to the concern that allowing a challenge to an affidavit that supported a warrant 

would be misused by criminal defendants as a way to conduct discovery that was not otherwise 

available: The Court in Franks noted the concern that “if such hearings were conducted 

routinely, it is said, they would be misused by defendants as a convenient source of discovery, 

and that “[d]efendants might even use the hearings in an attempt to force revelation of the 

identity of informants.” 438 U.S. 167. The Court addressed this concern by creating the 

stringent “substantial preliminary showing” standard for obtaining a Franks hearing: “The 

requirement of a substantial preliminary showing would suffice to prevent the misuse of a 

veracity hearing for purposes of discovery or obstruction.” 438 U.S. at 170. It is manifest that 

the “substantial preliminary showing” devised in Franks was a product of the context of that 

case—a criminal prosecution, where historically discovery as a matter of right has been either 

non-existent or far more limited than discovery that is available in civil proceedings (or, for that 

matter, in proceedings before the Review Commission). See Fed. R. Crim. P. Rule 16; 2 Charles 

Allen Wright & Peter J. Henning, Federal Practice and Procedure—Criminal § 251 (4th ed. 

2009). The Franks “substantial preliminary showing” standard, designed to diminish the 

potential for misuse of the Franks procedure to obtain discovery of information that would 

otherwise not be obtainable by a criminal defendant, addressed a concern that simply is not 

present in civil proceedings, where there are many and varied modes of discovery available to 

litigants as a matter of right.
20 

proceedings on a potential claim for vindictive prosecution. The Commission described that 

standard in Sturm Ruger& Co., 20 BNA OSHC at 1726, as follows:

“To compel discovery on a vindictive prosecution claim, a defendant must 

show a colorable basis for the claim. A colorable basis is some evidence 

tending to show the essential elements of the claim.” United States v. 

Benson, 941 F.2d 598, 605 (7th Cir. 1991) (quoting United States v. 

Heidecke, 900 F.2d 1155, 1159 (7th Cir. 1990)). See also United States v. 

Schmucker, 815 F.2d 413, 418 (6th Cir. 1987); United States v. Berrios, 

501 F.2d 1207, 1211 (2d Cir. 1974). Cf., e.g., United States v. Lanoue, 137 

F.3d 656, 665 (1st Cir. 1998) (“generally where a defendant can point to 

specific facts that raise a likelihood of vindictiveness a district court must 

grant an evidentiary hearing on the issue,” with the opportunity for 

discovery).

Another formulation of a standard for obtaining discovery of Franks information would be for 

the party seeking that discovery to demonstrate a reasonable suspicion that an affidavit filed in 

support of a warrant application contains a false statement of fact or material omission that was 

made knowingly or with reckless disregard for the truth, and that such false statement or material 

omission was material to the probable cause determination.5 

The record that is presented on the motion to compel at the very least establishes both a 

colorable basis and a reasonable suspicion for a Franks claim. If the averments in the 

 5 Cf. Brock v. Brooks Woolen Co., Inc., 782 F.2d 1066, 1069 (1st Cir. 1986), which 

includes the following dictum (internal citations omitted):

[W]e observe that Franks does not proscribe scrutiny of warrant affidavits 

in the absence of the substantial showing that that case specifies; Franks

merely holds that subfacial challenges are not mandated to protect a 

defendant’s constitutional rights unless the specified showing is made. 

Thus, in the case of an administrative search warrant, where the probable 

cause required to secure the warrant is less than that necessary for a 

criminal warrant, it may well be that an ALJ should have some discretion 

to probe alleged falsehoods brought to his or her attention, even if the 

warrant challenge falls short of the Franks standards. But since the issue 

is not before us, we leave to another day discussion of the existence and 

scope of any discretion. 
21 

declarations filed by the Respondent are accepted as true for purposes of the motion to compel, 

no OSHA official informed the Respondent that the Live Oak facility had been selected for a 

comprehensive inspection pursuant to the neutral protocol set forth in the Poultry REP at any 

time prior to OSHA obtaining the warrant, and to date no documentary evidence has been 

disclosed to the Respondent to corroborate the averments that the Live Oak facility was duly 

identified for selection utilizing the neutral protocol of the Poultry REP. Rather, according to the 

declarations filed by the Respondent, OSHA officials advised the Respondent that the complaint 

inspection had “triggered” the comprehensive inspection under the REP. Such an explanation, if 

made, would have been entirely consistent with the provisions of the Poultry REP which 

established a general requirement that any unprogrammed inspection (such as a complaint 

inspection) be expanded to a comprehensive inspection under the Poultry REP. See, e.g. MarJac Poultry, supra at footnote 3. The internal records created by members of the inspection team 

can also be viewed as corroborating the declarations filed by the Respondent—none of the 

contemporaneous records refer to the Live Oak facility having been identified for inspection 

under the neutral protocol of the Poultry REP independent of the complaint investigation. These 

circumstances alone give rise to both a colorable claim and a reasonable suspicion that when the 

area office commenced the complaint inspection on February 1, 2016, the area office had not yet 

identified the Live Oak facility for comprehensive inspection by utilizing the neutral protocol set 

forth in the Poultry REP. 

Further, the time line starting from the effective date of the Poultry REP (October 26, 

2015) provides only the thinnest of cushions for the area office to have begun enforcement 

activities after it commenced outreach activities. The Poultry REP requires that area offices not 

initiate inspections pursuant to the REP earlier than three months after outreach efforts begin. 
22 

Assuming outreach efforts commenced on the effective date of the REP, inspections should not 

have begun until three months later—no earlier than January 26, 2016. (The area office received 

the complaint about the fall from a ladder on January 27, 2016.) This circumstance similarly 

gives rise to both a colorable claim and a reasonable suspicion that the Live Oak facility had not 

been identified for inspection pursuant to the neutral protocol prescribed by the REP at the time 

that the area office received the complaint on January 27, 2016.

The confluence of these circumstances raises not only a reasonable suspicion, the record 

on the motion to compel considered in its entirety contains substantial circumstantial evidence 

that would support a finding of fact that statements in the affidavit filed in support of the warrant 

regarding the Live Oak facility’s selection by use of the neutral protocol prescribed by the

Poultry REP were false and were made knowingly or with reckless disregard for the truth. Thus, 

if the Commission’s decision in Tri-State Steel does hold that the “substantial preliminary 

showing” standard for mandating a Franks hearing is likewise the standard that applies in 

determining whether a party may obtain discovery into matter that is germane to a Franks

challenge, the record on the motion to compel makes such a substantial preliminary showing.6

Accordingly, it is ordered that the Secretary’s objections to the challenged discovery 

requests identified above are overruled, and the Secretary shall provide substantive responses of 

information and material that is not otherwise privileged, within 14 days of the date of this order. 

 6 It is entirely possible that the information and material that the Secretary provides to the 

Respondent in response to the contested discovery requests will disabuse the Respondent of its 

reasonable suspicion that the affidavit may have contained falsehoods or material omissions. For 

example, the Secretary represents in its memorandum in opposition to the motion, that the 

requested documents are maintained in a file other than the case file relating to the underlying 

inspection. (Memorandum in opposition, pp. 6-7). Upon production of that documentation, it is 

entirely possible the Respondent would decide not to request a Franks hearing. Further, if a 

request for a Franks hearing is later made and granted, it is entirely possible that the Respondent 

would fail to carry its burden of proof under Franks. Obviously, whatever evidence is presented 

in such a hearing, and the weight to be accorded such evidence, would remain to be seen. 
23 

Any claimed privileged material not provided shall be catalogued in an appropriately prepared 

privilege log. 

SO ORDERED.

 

 /s/ 

WILLIAM S. COLEMAN

Administrative Law Judge 

DATED: July 17, 2017