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Exhibit 5

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HUNTON ANDREWS KURTH LLP
2200 PENNSYLVANIA AVENUE, NW
WASHINGTON, D.C. 20037-1701
TEL 202 • 955 • 1500
FAX 202 • 778 • 2201

SUSAN F. WILTSIE
DIRECT DIAL: 202 • 955 • 1546
EMAIL: swiltsie@HuntonAK.com

June 25, 2020

FILE NO: 027120.0000618

Via E-Mail
Sheila A. Stanley
Area Director
Occupational Safety and Health Administration
4404 South Technology Drive
Sioux Falls, SD 57106
Objections of Smithfield Packaged Meats Corp. to
OSHA’s Subpoena Duces Tecum to South Dakota Department of Health
Dear Sheila:
Smithfield Packaged Meats Corp. (“Smithfield” or the “Company”) has received a copy of the
subpoena duces tecum you served on the South Dakota Department of Health (“DOH”),
which requires production of documents on June 26, 2020 (the “Subpoena”). I write to
express Smithfield’s concerns about the purpose and scope of the Subpoena, and to assert the
Company’s legal objections.
As you well know, since the commencement on April 20, 2020 of OSHA’s investigation at
the Smithfield Sioux Falls facility, OSHA has served two subpoenas on Smithfield.
Smithfield has fully cooperated with OSHA, producing thousands of pages of responsive
documents, with planned production of thousands more pages. The Company and OSHA
have been able to amicably and swiftly resolve all disputes about scope and production timing
of the Subpoena responses.
Given this high level of cooperation and fulsome response, we were alarmed to learn that
OSHA is seeking information from DOH to use against the Company. Some of the requested
information already has been provided by the Company to OSHA. As such, OSHA does not
need to seek that information from DOH. The remainder, however, we consider an
inappropriate over-reach and at odds with public policy.
As background, Smithfield has partnered with DOH since the very first reported cases of
COVID-19 at its plant. It opened its doors to DOH and CDC, shared information and made
managers and hourly workers available to DOH/CDC investigators. It continues to partner
with DOH in an epidemiological study to be used for scientific purposes.
ATLANTA AUSTIN BANGKOK BEIJING BOSTON BRUSSELS CHARLOTTE DALLAS DUBAI HOUSTON LONDON
LOS ANGELES MIAMI NEW YORK NORFOLK RICHMOND SAN FRANCISCO THE WOODLANDS TYSONS WASHINGTON, DC
www.HuntonAK.com

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Sheila A. Stanley
June 25, 2020
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Smithfield strongly objects to OSHA’s attempt to obtain the information that Smithfield
disclosed to DOH for public health and scientific purposes. The Company views this as an
attempt to end-run OSHA’s standard investigative process and associated procedural
safeguards, and obtain from a third party what it could not obtain through a standard
investigation. Smithfield’s due process rights thus are compromised by this Subpoena, which
gives Smithfield standing to challenge the Subpoena in court.
The policy implications of this Subpoena are troubling, as well. In effect, the Subpoena takes
advantage of Smithfield’s voluntary cooperation with DOH by using the information
disclosed for scientific and public health purposes against Smithfield in an adversarial
context. Such practices will have a chilling effect on any company’s willingness to cooperate
with public health departments in the future. No reasonable employer would voluntarily
cooperate with public health officials for the greater good if the outcome of that cooperation is
an enforcement action by another government agency. No good deed goes unpunished writ
large. This is a dangerous precedent to set in the context of a novel virus about which much
remains unknown.
We hope that you are willing to consider the issues raised in these objections, and discuss
with DOH and with Smithfield whether the Subpoena can be narrowed to accommodate
Smithfield’s legitimate concerns or determine other alternative approaches. For example,
Smithfield proposes that it be given an opportunity to review the materials in DOH’s
production prior to its production to OSHA. This would allow Smithfield to specifically
identify any documents to which it objects and narrow the scope of any potential issues for
resolution with OSHA and/or a court. To facilitate our discussions and ensure that there is
sufficient time to account for Smithfield’s due process objections, we respectfully request that
you extend the time specified for DOH’s response to the Subpoena and notify DOH of same
immediately.
We are hopeful that we will be able to resolve our differences without court involvement.
However, if needed, Smithfield is prepared to assert the following objections and others, and
seek appropriate relief and protection from, the United States District Court for the District of
South Dakota.
GENERAL OBJECTIONS
1. Smithfield objects to the Subpoena generally on the grounds that it is overly broad,
and seeks information that is not relevant or proportionate to OSHA’s investigation of
Smithfield’s Sioux Falls plant. OSHA commenced its investigation after Smithfield
voluntarily assisted DOH with an epidemiological investigation of its employees for
public health purposes, after the Sioux Falls plant had closed and then re-opened (with

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Sheila A. Stanley
June 25, 2020
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the approval of the Department of Agriculture, the Centers for Disease Control, and
DOH), and after Smithfield put in place many new safety protocols approved by these
agencies and recommended by OSHA. The information sought by the Subpoena
relates to time periods that pre-date OSHA’s investigation.
2. Smithfield objects to the Subpoena generally on the grounds that it seeks to collect
information that would not otherwise be available in this investigation. OSHA started
its investigation on April 20, 2020 when the plant was shut down. OSHA’s onsite
investigation is limited to the reopened plant and what evidence it can collect from
Company records and recollections of the prior time period. OSHA should not be
permitted to change its investigatory timeline by using DOH conducted interviews in
March and early April.
3. Smithfield objects to the Subpoena generally on the grounds that production of some
of the information requested would violate Smithfield’s rights to due process of law.
Smithfield shared information with DOH in the context of a broader public health
effort and epidemiological study to better understand the novel virus, not an
adversarial proceeding such as an OSHA investigation. Those disclosures were not
made subject to the procedural safeguards guaranteed under the OSH Act.
4. Smithfield objects to the Subpoena generally on the grounds that compliance with the
Subpoena may require DOH to violate the terms and understandings pursuant to which
Smithfield agreed to share information in the interest of public health and for the
epidemiological study, including confidential employee data and other sensitive
information.
5. Smithfield objects to the Subpoena generally on the grounds that disclosure of some of
the information sought would violate the privacy interests of Smithfield’s employees,
which Smithfield has a duty to safeguard.
6. Smithfield objects to the Subpoena generally on the basis of its unreasonably short
return date, which leaves no time for consideration of Smithfield’s due process rights,
its employees’ privacy rights, and Smithfield’s other legitimate interests implicated by
the Subpoena.
7. Smithfield objects to this Subpoena generally because it seeks information voluntarily
disclosed for public health purposes, which OSHA now intends to use in an
adversarial proceeding against Smithfield. Voluntary cooperation with public health
agencies should not be weaponized for purposes of an adversarial proceeding. As a
policy matter, this creates a chilling effect on a company’s willingness to participate in

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Sheila A. Stanley
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public health investigations and studies. In the current pandemic where much remains
unknown about the virus and its characteristics, such a result could have far-reaching
and damaging consequences.
8. Each of these general objections is incorporated by reference into the specific
objections below.
SPECIFIC OBJECTIONS
1. Employee personally identifiable medical information.
Objection: Smithfield objects to this category only to the extent necessary to protect
its employees’ privacy rights. Smithfield legally may share information it has
regarding employee personally identifiable health information under the protection of
the OSHA issued medical access order and associated processes. Smithfield does not
know if DOH has personally identifiable medical information beyond that which the
Company provided to it and must have time to assess this issue and, if needed, offer
employees the opportunity to object to production or production without redaction.
2. Correspondence between the South Dakota Department of Health and Smithfield
representatives.
Objection: OSHA already has the CDC report regarding recommendations from its
site visit, which is publicly available. In addition to the general objections above,
Smithfield also objects to this category on the grounds that it is not sufficiently
definite, as required by United States v. Morton Salt Co., 338 U.S. 632, 652 (1950),
because there is no time or subject matter limitation on the requested correspondence
and is overly broad and seeks information neither relevant to, proportionate to, or
within the scope of OSHA’s investigation of the Smithfield Sioux Falls plant. See 29
U.S.C. § 657; Morton Salt, 338 U.S. at 652; OSHA 2020 Field Operations Manual
(“FOM”), Ch. 3; Donovan v. Union Packing Co. of Omaha, 714 F.2d 838, 839 (8th
Cir. 1983) (Secretary has subpoena power to obtain records company required to
maintain under section 657 “as well as other standard records which are necessary to
compute the lost workday injury rate.”).
3. Interviews conducted with employees or management officials related to the
outbreak of COVID-19.
Objection: In addition to the general objections above, Smithfield objects to the
production of this information on the grounds that it violates Smithfield’s due process
rights. The DOH interviews were not conducted subject to the procedural safeguards

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Sheila A. Stanley
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guaranteed by OSHA, including but not limited to the right of management employees
to have a company attorney or other representative present at the interview, the right
of non-managerial employees to have a union representative, or other representative of
their choosing, present, and the contextual information that OSHA is required to
disclose prior to any interviews. See FOM, Ch. 3 [Inspection Procedures], § (II); Ch.
5, §VII. In the context of Smithfield’s cooperation with DOH, Smithfield did not
insist on the same protections that it would be entitled to had OSHA conducted the
interviews. Smithfield also objects to this category because the information sought is
not relevant or proportionate to its investigation. The information Smithfield
managers and hourly workers shared with DOH for public health purposes is not
coextensive with the information to which OSHA has a right for law enforcement
purposes. OSHA is conducting its own interviews for purposes of its investigation, at
which these procedural safeguards are in place. It must base its findings on the results
of its own investigation. See FOM, Ch. 3-5 generally.
4. Statistical data reflecting any potential clusters of COVID-19 within the plant,
including production lines, work stations, or common areas.
Objection: Smithfield objects to production of any information in this category
created, compiled and analyzed by DOH. This information, which belongs to DOH, is
integral to its public health and epidemiological study. It was collected before OSHA
commenced its Sioux Falls investigation; indeed, before OSHA even published
guidelines for the meat processing industry. To the extent OSHA seeks to use DOH
collected, compiled and analyzed data in an effort to prove hazardous conditions,
OSHA is essentially converting DOH into an expert witness. This may place DOH
and Smithfield in an adversarial position wholly at odds with the current cooperative
effort, and chill future cooperation. Were OSHA to issue citations to the Company,
the Company might find itself in the position where it had to depose DOH to defend
the Company. If OSHA seeks to make a case based upon statistical data it needs to
conduct its own analysis using its own resources or publicly available information.
5. Photographs and/or video taken of the plant, including workstations, processes or
equipment.
Objection: In addition to the general objections above, Smithfield objects to this
category because it seeks the company’s trade secrets, confidential and proprietary
information, which Smithfield shields from public disclosure. See FOM Ch. 5-12(C).
The equipment and processes that Smithfield uses on its production lines have value to
Smithfield’s competitors. Smithfield would not disclose this information to OSHA

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Sheila A. Stanley
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without appropriate confidential classification establishing that it would not be subject
to FOIA disclosures or used for any purpose outside OSHA’s investigation.
6. Any recommendations issued to Smithfield by the State of South Dakota,
Department of Health, to combat the spread of the virus.
Objection: OSHA already has the CDC report regarding recommendations from its
site visit, which is publicly available. In addition to the general objections above,
Smithfield objects to this category to the extent it seeks additional information that the
DOH/CDC chose not to release to the public.
I welcome the opportunity to discuss these issues amicably and reach resolution. In the
meantime, please confirm that you will extend DOH’s response deadline.
Yours truly,

Susan F. Wiltsie
Cc:

Justin L. Williams, Esq.
Kim Malsam-Rysdon

027120.0000618 EMF_US 80860329v7