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UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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SECRETARY OF LABOR, :

: OSHRC No. 21-0986

Complainant, :

:

v. : Inspection No. 1529328

:

KANE LOGISTICS, dba KANE :

WAREHOUSING, INC, : Judge Dennis L. Phillips

and its successors, :

:

Respondent. :

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ORDER GRANTING COMPLAINANT’S MOTION TO COMPEL 

ENTRY UPON LAND

I. Background

On or about May 5, 2021, an employee operating an electric pallet truck (EPC) (specifically

an End Control Pallet Truck, model PE 4500, heading towards aisle 92 in Kane Logistics, dba Kane 

Warehousing, Inc.’s (Respondent or Kane) Distribution Center 6 located at 24 Stauffer Industrial 

Park, Taylor, Pennsylvania 18517 (Worksite), ran into the bottom horizontal support bar of the 

material storage racking system, which resulted in fatal injuries. At the time, the employee was 

driving the EPC forward with the forks trailing behind him. (Opposition at 1).

The following day, the Occupational Safety and Health Administration (OSHA) initiated 

an inspection of the Worksite. Two OSHA Compliance Officers (CO) visited the Worksite. 

During their visit, they reportedly took more than 20 pictures of the Worksite and the accident 

scene and took measurements of the height and length of the storage rack. During the inspection, 

Kane also reportedly provided OSHA with the more than 20 pictures it took of the accident scene 

on the night of the incident and video surveillance from the moments before the incident. Kane
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also provided OSHA documents related to employee powered industrial truck training and certain 

powered industrial truck operator manuals. (Opposition at 1-2).

On September 16, 2021, OSHA issued a citation to Respondent alleging two violations:

(1) a violation of the general duty clause based on the recognized hazard of employees operating 

forklift trucks in areas where there are storage racks with horizontal crossbars or beams that 

could enter the operator areas, potentially resulting in crushing injuries; and (2) a violation of 29 

C.F.R. § 1910.178(l)(3)(ii)(I) for failing to train employees about these kinds of “under-ride 

hazards” while operating the pallet trucks. 

The alleged violation description for the general duty clause violation states:

a) Kane DC6 Warehouse – On or about May 5, 2021, employees operated pallet trucks in 

the warehouse in areas where the bottom shelves of storage racks were approximately 55 

inches from the ground, such that the horizontal crossbars or beams of the shelves could 

enter into the operator areas and come into contact with, and potentially crush, the pallet 

truck operators. One example of the potential for crushing injuries occurred on May 5, 

2021: a worker operating a Crown End Control Pallet Truck, model PE 4500 Series, 

serial number 10250215, was killed when a storage rack shelf that was 55 inches from the 

ground entered into the operator area and came into contact with him and crushed him. 

The pallet truck had been traveling with the forks trailing (or power unit first) and the 

platform and power unit went under the shelf.

To establish the general duty clause violation with respect to this citation, the Secretary 

will be required to prove: (1) an activity or condition in Respondent’s workplace presented a 

hazard to employees; (2) either Respondent or the industry recognized the condition or activity as 

a hazard; (3) the hazard was likely to or actually caused death or serious physical harm; and (4) a 

feasible means to eliminate or materially reduce the hazard existed. See Fabi Constr. Co. v. 

Sec’y of Labor, 508 F.3d 1077, 1081 (D.C. Cir. 2007). 

The Secretary has the burden of proof to establish the elements of each alleged violation, 

and is entitled to gather the information through discovery necessary to prove his case in 

accordance with the Commission’s Rules of Procedure. See 29 C.F.R. §§ 2200.52 through 

2200.56. The Secretary intends to rely on expert witness testimony to help prove his case.
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The Secretary served a Request to Permit Entry (Request) upon Respondent on February 

17, 2022, pursuant to Rule 53(a). The Request specified that the Secretary is asking Respondent 

to “permit the Secretary’s outside expert, attorney, and CO to enter the warehouse facility 

located at 24 Stauffer Industrial Park, Taylor, Pennsylvania, 18517, on a date and at a time to be 

mutually agreed upon, but occurring no later than April 15, 2022.” The Secretary explained 

that the “purpose of the entry will be to examine the warehouse areas that are the subject of the 

current contest and to take measurements, photographs, and videos of those areas, including 

shelving, aisleways, and travelways.” The Secretary specified that the areas to be examined 

would be “any areas where pallet trucks are operated and there are shelf racks positioned at 

heights such that the shelf racks could make contact with the operators of the pallet trucks.” 

The Secretary further explained the basis for requesting a site visit: “The information 

gathered during the entry regarding the conditions and activities at the worksite is information 

that is necessary for purposes of the Secretary’s expert forming his opinions and conclusions 

about the violations issued in this matter.” Finally, the Secretary provided additional details 

about the scope of the worksite visit: “In addition, the request includes the opportunity to 

inspect, measure, photograph, and videotape all pallet trucks that are presently being used at 

the facility as well as any pallet trucks that were in use at the facility in May of 2021, even if 

such pallet trucks are not presently in use.”1

Respondent served upon the Secretary its Objection and Response to Complainant’s 

Request to Permit Entry. In its Objection and Response, Respondent asserted that the Secretary 

1 The Secretary asserted that he needs to inspect the pallet trucks themselves in order to determine whether there are 

any warning labels on the trucks similar to the warnings contained in the Operator Manual, such as the warning on 

page 4 that states: “You could be pinned or crushed by objects intruding or poking into the operator area.”
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did not provide enough specificity as to “the areas of the warehouse facility that the Secretary 

wants to inspect.” Respondent refused to allow the Secretary to inspect the premises.

On March 21, 2022, the Secretary filed his Motion to Compel Entry upon Land (Motion 

to Compel Entry upon Land or Motion to Compel). The Secretary requests the Court issue an 

order requiring Respondent to allow the Secretary to visit the worksite with an expert and a 

party representative.

On March 29, 2022, Respondent filed its Opposition to Complainant’s Motion to Compel 

Entry Upon Land (Opposition). Kane requeststhis Court deny the Secretary’s Motion to Compel in

its entirety. Alternatively, if this Court grantsthe Secretary’s Motion to Compel, Kane requeststhis 

Court order that: (1) only the Secretary’s expert attend the discovery inspection; (2) the discovery 

inspection be limited to two (2) hours and confined to the main thoroughfare of the Worksite, aisle 

92, and the EPC involved in the May 5, 2021 incident; and (3) the Secretary reimburse Kane for 

all reasonable costs that result from the discovery inspection, if any. (Opposition at 8).

On March 30, 2022, the Secretary filed his Reply to Respondent’s Opposition to Motion 

to Compel Entry upon Land (Reply). In his Reply, the Secretary asserts that there is no basis for 

excluding the Secretary’s counsel and a party representative from the discovery inspection.

He asserts that there are only a few federal court cases addressing motions to exclude persons

from discovery inspections. See Hillesheim v. RVD Real Est. Properties LLC, 8:18 CV 449, 

2019 WL 1900384, at *4 (D. Neb., Apr. 29, 2019).

2 He further argues that Respondent’s 

request that the Court order the Secretary to reimburse for costs associated with the discovery 

inspection has little or no basis in law.

2 In Hillesheim, the defendant sought to exclude the plaintiff’s chosen property inspector from entry upon 

defendant’s land based solely upon conclusory statements challenging his credibility. The Court found that good 

cause was not established and denied the motion for protective order.
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II. DISCUSSION

Rules 52(a)(1)(i) and 53(a)(1) allow parties to “enter upon land,” and contemplate that an 

entry upon land may be utilized as a legitimate method of discovery. 28 C.F.R. §§ 

2200.52(a)(1)(i) and 2200.53(a)(1). 

Review Commission Rule 53 provides for the use of worksite visits for purposes 

of discovery. The rule provides, in pertinent part:

(a) Scope. At any time after the filing of the first responsive pleading or motion that 

delays the filing of an answer, such as a motion to dismiss, any party may serve on any 

other party a request to:

. . . .

(2) Permit entry upon designated land or other property in the possession or control of the 

party upon whom the request is served for the purpose of inspection and measuring, 

surveying, photographing, testing, or sampling the property or any designated object or 

operation on the property.

29 C.F.R. § 2200.53(a). The rule also specifies the procedure to be used for requesting entry, 

and the procedure to follow if entry is refused:

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

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

shall specify a reasonable time, place, and manner of making the inspection and 

performing related acts. The party upon whom the request is served shall serve a written 

response within 30 days after service of the request, unless the requesting party allows a 

longer time. The Commission or the Judge may allow a shorter time or a longer time, 

should the requesting party deny an extension. The response shall state, with respect to 

each item or category, that inspection and related activities will be permitted as 

requested, unless the request is objected to in whole or in part, in which event the reasons 

for objection shall be stated. If objection is made to part of an item or category, that part 

shall be specified. To obtain a ruling on an objection by the responding party, the 

requesting party shall file a motion conforming to § 2200.40 with the Judge and shall 

annex its request to the motion, together with the response and objections, if any.

29 C.F.R. § 2200.53(b). (Motion to Compel at 4).

Conducting a discovery inspection with an expert is an appropriate method of gathering 

information during discovery. See Owens-Illinois, Inc., No. 77–648, 1978 WL 7118 

(O.S.H.R.C., Dec. 20, 1978) (possibility that trade secrets will be disclosed does not warrant 

barring discovery inspections by non-federal employees such as outside experts since trade 
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secrets can be adequately protected by issuance of protective order). Guidance discussing 

applicable legal standards when an employer objects to the Secretary’s request to enter upon land

may be found in the case law dealing with Fed. R. Civ. P. 34(a)(2), which sets forth a provision 

similar to Commission Rule 53(a)(2). Fed. R. Civ. P. 34(a)(2) states, in part:

A party may serve on any other party a request within the scope of Rule 26(b) . . . to 

permit entry onto designated land or other property possessed or controlled by the 

responding party, so that the requesting party may inspect, measure, survey, photograph, 

test, or sample the property or any designated object or operation on it.

Fed. R. Civ. P. 34(a)(2). The reference to Rule 26(b) indicates that the request to enter upon 

land must be:

relevant to any party’s claim or defense and proportional to the needs of the case, 

considering the importance of the issues at stake in the action, the amount in controversy, 

the parties’ relative access to relevant information, the parties’ resources, the importance 

of the discovery in resolving the issues, and whether the burden or expense of the 

proposed discovery outweighs its likely benefit.

Fed. R. Civ. P. 26(b)(1). (Motion to Compel at 5).

“Judges have wide discretion in deciding whether to permit discovery.” FMC Corp., No. 85-

226, 1985 WL 44754, at *2 (O.S.H.R.C., Nov. 13, 1985).

Rule 52(b) of the Rules of Procedure outlines the scope of discovery.

The information or response sought through discovery may concern any matter that 

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

case and proportional to the needs of the case, considering the importance of the 

issues at stake, the parties’ relative access to relevant information, the parties’ 

resources, the importance of the discovery in resolving the issues, and whether the 

burden or expense of the proposed discovery outweighs its likely benefit. 

Information within this scope of discovery need not be admissible in evidence to 

be discoverable.

Rule 52(b). Rule 52(b) is virtually identical to Rule 26(b) of the Federal Rules of Civil Procedure. 

Respondent asserts that the information sought must be relevant and proportional to the 

needs of the case. See e.g., Ehrlich v. Inc. Vill. of Sea Cliff, No. 04-4025, 2007 WL 1593211, at

*6 (E.D.N.Y. May 31, 2007) (denying motion to compel entry and inspection because plaintiff 

failed to prove such inspection was relevant). That is, “the degree to which the proposed inspection 
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will aid in the search for truth must be balanced against the burdens and dangers created by the 

inspection.” Belcher v. Bassett Furniture Indus., Inc., 588 F.2d 904, 908 (4th Cir. 1978). 

Respondent argues the Secretary must establish a need for the discovery inspection, and even if

the Secretary does that, the discovery inspection must still be limited or proportional to the needs 

of the case. (Opposition at 4). The Court finds that the Secretary has established that he needs to 

perform the sought-after discovery inspection and it is proportional to the needs of the case, which 

involves a fatality. The Court further finds that the requested discovery inspection will not be 

duplicative.

“The touchstone for analysis of a Rule 34 inspection is reasonableness.” McConnell v.

Canadian Pac. Realty, 280 F.R.D. 188, 191 (M.D. Pa. 2011). “A party seeking discovery bears 

the initial burden of proving the relevance of the requested information.” Id., at 193 (citing 

Morrison v. Philadelphia Hous. Auth., 203 F.R.D. 195, 196 (E.D. Pa. 2001)). “Once that initial 

burden is met, ‘the party resisting the discovery has the burden to establish the lack of relevance 

by demonstrating that the requested discovery (1) does not come within the broad scope of 

relevance as defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal relevance that the 

potential harm occasioned by discovery would outweigh the ordinary presumption in favor of 

broad disclosure.’” McConnell, 280 F.R.D. at 193 (quoting In re Urethane Antitrust Litig., 261 

F.R.D. 570, 573 (D. Kan. 2009)). (Motion to Compel at 5-6).

Inspections are typically allowed where “the specific location relates to the subject matter 

of the cause of action.” Welzel v. Bernstein, 233 F.R.D. 185, 186 (D.D.C. 2005) (collecting 

cases and granting motion to compel inspection and allowing photographs or video); see Alonso

v. Sch. Bd. of Collier Cty., Fla., No. 2:16-CV-379-FtM-38 MRM, 2018 WL 9617238, at *2 

(M.D. Fla., Nov. 20, 2018) (granting motion to compel entry upon land with expert where 

plaintiffs alleged violation of Equal Educational Opportunities Act and expert would observe 
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classes and inspect school facility). (Motion to Compel at 6).

For cases that involve expert witnesses, visiting the worksite or facility in question “is the 

best way for [an] expert to gain an accurate understanding of the conditions there. And [the] 

expert can be expected to produce a report and testimony that is more useful to the Court if the 

expert observes conditions at the facility firsthand.” Chunn v. Edge, No. 20-CV-1590 (RPK), 

2020 WL 1872523, at *1 (E.D.N.Y., Apr 15, 2020) (granting petitioners’ motion to compel entry 

upon land with expert in case involving constitutional challenge to conditions of confinement at 

detention center). “Site inspections under RCFC [Rules of the Court of Federal Claims] 34(a)(2) 

and Fed.R.Civ.P. 34(a)(2) can readily involve experts because their knowledge and skills are at 

times required to render the inspection fruitful for the inspecting party.” Ark. Game & Fish 

Comm'n v. United States, 74 Fed. Cl. 426, 430 (2006). (Motion to Compel at 6).

Parties are routinely permitted to visit sites with experts during discovery. See McKesson 

Corp. v. Islamic Republic of Iran, 185 F.R.D. 70, 72, 75 (D.D.C. 1999) (permitting plaintiff’'s 

expert to inspect the defendant’s “facilities, equipment, and machinery”); Chem. Bank v. First 

Chicago Bank of Ravenswood, No. 93 c 5220, 1993 WL 524715, at *1 (N.D.Ill., Dec. 14, 1993) 

(permitting plaintiff’s general contractor and subcontractors to conduct “environmental 

inspecting and measuring, surveying, photographing, testing or sampling” of defendant’s 

premises); New York State Ass’n for Retarded Children v. Carey, 706 F.2d 956, 960–62 (2d Cir. 

1983) (upholding a district court’s order permitting plaintiffs’ consultants and experts to inspect 

the defendants’ facilities to “take photographs, make observations, take notes, form 

conclusions”); Eirhart v. Libbey– Owens–Ford Co., 93 F.R.D. 370, 371-72 (N.D.Ill. 1981) 

(granting plaintiffs’ consultants access to the defendant’s plant to observe an experimental 

production line). (Motion to Compel at 7).

For purposes of formulating his opinions regarding the existence of hazardous conditions 
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and feasible means of abatement, the Secretary’s expert witness is expected to benefit from an 

opportunity to view the conditions and activities that are alleged to be hazardous in the general 

duty clause violation. See, e.g., Welzel, 233 F.R.D. at 186 (inspections typically allowed where 

“the specific location relates to the subject matter of the cause of action”). A site visit would 

provide the Secretary’s expert with an opportunity to view relevant conditions and activities 

including the layout and design of the warehouse and aisles, the height and locations of the 

storage racks and shelves, the pallet trucks used in the warehouse, and the operation of the pallet 

trucks.

Here, the Secretary, has satisfied his initial burden “of proving the relevance of the 

requested information.” McConnell, 280 F.R.D. at 193. The conditions and activities here are 

“relevant” to the subject matter of the litigation. See Fed. R. Civ. P. 26(b)(1) (request to enter 

upon land must be “relevant to any party’s claim or defense). Respondent has not established a 

lack of relevance “by demonstrating that the requested discovery (1) does not come within the 

broad scope of relevance as defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal 

relevance that the potential harm occasioned by discovery would outweigh the ordinary 

presumption in favor of broad disclosure.” McConnell, 280 F.R.D. at 193. The Court also finds 

that there would be little burden or expense for Respondent resulting from the Secretary visiting 

the worksite. Id. (factors include “whether the burden or expense of the proposed discovery 

outweighs its likely benefit”). 

The Court further finds that he Secretary provided Respondent with reasonable and 

sufficient specificity pertaining to the areas of the warehouse facility that the Secretary wants to 

inspect. The Secretary identified “any areas where pallet trucks are operated and there are shelf 

racks positioned at heights such that the shelf racks could make contact with the operators of the 

pallet trucks.” Respondent also complains that the Secretary failed to identify which of its 
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multiple warehouses will be inspected. The Secretary indicated that he would be visiting DC6, 

where the fatality occurred. (Motion to Compel at 9). Respondent also objected because the 

Secretary’s Request “does not specify how long the Secretary intends to be on-site for the 

inspection.” The Secretary proposed that the parties could begin with an agreement that the visit 

would initially last one day, and that if the Secretary’s expert needed additional time, the 

Secretary would communicate the reasons for needing a second day so that Respondent could 

decide whether to object or not. (Motion to Compel at 9). The Court finds the terms and 

conditions of the duration of the visit as proposed by the Secretary to be reasonable.

Respondent further contends that the Secretary should be satisfied with his expert being limited to 

the photographs and measurements taken by the OSHA CO during the OSHA inspection. 

Photographs and measurements taken by the CO during his inspection are not a substitute for an expert’s 

first-hand observations and measurements. See Chunn, 2020 WL 1872523, at

*1 (visiting worksite or facility in question “is the best way for [an] expert to gain an accurate 

understanding of the conditions there”). Respondent’s expert has had, and will continue to 

have, full access to the area where the accident occurred and the entire warehouse, and the 

Secretary would be at a significant disadvantage if his expert cannot also produce a report 

and testimony based on firsthand observations. Id. (“expert can be expected to produce a 

report and testimony that is more useful to the Court if the expert observes conditions at the 

facility firsthand”). (Motion to Compel at 10-11). Additionally, the Secretary’s general duty 

clause violation is not limited to the conditions involved in the accident or the specific shelf 

related thereto. It may encompass all areas of the warehouse where these kinds of pallet 

jacks are operated near storage rack shelves that could come into contact with the operators.

That is the hazard alleged by the Secretary. Consequently, the Secretary’s expert is entitled 

to examine all such areas first-hand and determine what conditions should be photographed 
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and measured. (Motion to Compel at 11). Respondent also claims that the expert’s site visit 

will be cumulative and duplicative because Respondent has produced more than 3,000 pages 

of documents.3 Documents produced during discovery and depositions that may be taken of 

management employees do not alleviate the need for a site visit by the Secretary’s expert.

Respondent also asks the Court to require the Secretary reimburse Kane for its 

reasonable costs that result from the discovery inspection. Respondent cites to FMC Corp., 

1985 WL at 44754, in support of this request. (Opposition at 8). That case is readily 

distinguished from the matter herein. FMC Corp. involved an alleged violation of the general 

duty clause for “fail[ing] to prevent or control exposure to a potential methylisocyanate 

uncontrolled reaction.” Id. at *1. There, the Secretary had conducted “a number of inspections” 

prior to issuing the citation, and, after Respondent contested the citation, the Secretary 

conducted additional inspections on March 25, 26, and May 9-11, 1985. Id. After filing a 

complaint, the Secretary conducted another inspection on May 29, 1985. Id. When the 

Secretary sought “to conduct still another inspection,” Respondent objected and the Judge

denied the Secretary’s motion to compel. On interlocutory appeal, the Commission allowed the 

Secretary to conduct another inspection because of the “unusual” circumstances (potential 

catastrophic consequences from an uncontrolled release of methylisocyanate). Id. at *2. 

Because, Respondent had “already been subjected to considerable expense” as a result of the 

approximately nine days the Secretary had already visited the facility, the Court required the 

Secretary “to reimburse the company for the reasonable costs it incurs as a result of the 

discovery inspection.” Id. (Motion to Compel, Reply, at 2-3). 

In this case the Secretary visited Respondent’s warehouse a single time during the OSHA 

3 The Secretary asserts that these documents provide minimal, if any, information that will be 

helpful to the Secretary’s expert in forming his opinions. He argues they do not support Respondent’s refusal to 

permit entry. (Motion to Compel at 11-12).
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inspection and has not inspected the warehouse since the citation was issued. Unlike in FMC 

Corp., Respondent has not offered any evidence that there were any costs associated with that 

inspection. Nor has Respondent offered any persuasive evidence that a discovery inspection with 

an expert would entail any significant costs. 

Respondent’s request for the Secretary to reimburse Kane for its reasonable costs that 

result from the discovery inspection is without merit.

III CONCLUSION

The Secretary has established that the site visit would produce relevant information, and 

Respondent has not shown that the numerous benefits of a site visit would be outweighed by any 

burden or expense to it.

IV. ORDER

Having reviewed Complainant’s Motion to Compel Entry Upon Land, Respondent’s Opposition,

and the Secretary’s Reply, it is hereby ORDERED that the Motion to Compel is GRANTED. It is further 

ORDERED that:

1. Respondent shall permit Complainant’s counsel, Complainant’s expert witness, and a party 

representative (to be selected by Complainant) to visit the DC6 warehouse located at 24 Stauffer Industrial 

Park, Taylor, Pennsylvania, 18517.

2. Complainant shall identify and communicate to Respondent three dates on or before April 29, 

2022 when Complainant’s counsel, expert, and party representative are available to visit the worksite. 

Respondent’s counsel shall immediately confer with all necessary individuals and select one such date for 

the site visit and communicate such date to Complainant’s counsel within 48 hours after the three options are 

proposed.

3. The worksite visit may last for up to eight hours, and may continue for additional days only upon 

mutual agreement of the parties, or an order from the Court.

4. Complainant’s expert, Complainant’s party representative, and Complainant’s counsel may make 
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observations, take measurements, take photographs, take videos, and take any other steps Complainant 

deems appropriate to gather relevant information during the worksite visit, other than conducting employee 

interviews.

5. At least ten days prior to the site visit, Respondent’s counsel shall confer with the necessary 

individuals and identify and communicate to Complainant in writing all areas of the DC6 warehouse where, 

in May 2021, any pallet trucks or pallet jacks (including but not limited to all “walkie/rider pallet trucks” 

and all Crown PE 4500 Series pallet trucks) were operated and there were shelf racks positioned at heights 

such that the shelf racks could make contact with the operators of the pallet trucks. If the parties are unable 

to come to an agreement as to which areas are to be inspected, Complainant shall be permitted to inspect the 

entire DC6 warehouse on the day of the worksite visit and make an independent determination as to which 

areas will be inspected.

6. Respondent shall ensure that all pallet trucks or pallet jacks (including but not limited to all 

“walkie/rider pallet trucks” and all Crown PE 4500 Series pallet trucks) that are presently being used at the 

facility, or that were in use at the facility in May of 2021 and are in, or under, Respondent’s control, even if 

they are no longer in operation, are conveniently located and ready to be inspected by Complainant. 

7. Respondent’s request for the Secretary to reimburse Kane for its reasonable costs that 

result from the discovery inspection is DENIED. 

SO ORDERED.

 /s/ 

 The Honorable Dennis L. Phillips

 U.S. OSHRC Judge 

Dated: April 14, 2022___ 

 Washington, D.C.