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Appellate Court Clarifies Subpoena Power and Email Privilege

NLRB v. Interbake Foods, No. 09-2245 (Fourth Circuit Court of Appeals, (Feb. 22, 2011) | View pdf

In this appeal from the Maryland Federal District Court, the Fourth Circuit Court of Appeals clarified the division of labor between administrative law judges and Article III judges in enforcing subpoenas. It also ruled on an issue concerning the privilege of an email string.

The underlying claim here concerned an administrative hearing before the National Labor Relations Board (NLRB) on charges that Interbake Foods, LLC (Interbake) was engaging in unfair labor practices. The NLRB issued a subpoena duces tecum to Interbake, asking it to produce a broad array of documents. Interbake produced some of the documents, but asserted attorney-client and work-product privileges as to others. The NLRB also challenged three allegedly privileged e-mail documents, and the administrative law judge (ALJ) issued an order requiring Interbake to produce the documents for in camera review. When Interbake refused, the NLRB applied to the District Court to enforce the subpoena and to order Interbake to produce the three e-mails to the ALJ for in camera review. The District Court denied NLRB’s application.

The appellate court agreed with the District Court that if a party refused to comply with a subpoena issued by the ALJ, and the order to produce documents was based on the attorney-client privilege or work-product doctrine, the aggrieved party’s recourse was to apply to the District Court for an order enforcing the subpoena. The ALJ has no authority to enforce the subpoena; only an Article III court may enforce it. The purpose of reserving this authority to the Article III court is to protect against abuses of the subpoena power. In deciding whether to enforce the subpoena, the District Court (not the ALJ) must assess the legitimacy of the claimed privilege via in camera review. The District Court cannot “delegate its task of conducting an in camera review to an ALJ.”

The second issue was whether Interbake had met its burden establishing that the three email documents were privileged and whether the NLRB had articulated a good faith basis for doubting the privilege claim. The appellate court held that the District Court did not abuse its discretion in concluding that the privilege log made a prima facie showing that the three emails in question were protected from disclosure by the attorney-client privilege. The NLRB argued that Interbake’s log failed to disclose the string of reply emails that would have been prompted by the original, disclosed emails. Because the emails were sent to both lawyers and non-lawyers, their replies required an independent assessment to determine whether the replies and any other emails in the string were properly protected by a claim of privilege. The appellate court concluded that the District Court should assess the privilege claim with respect to each email in the string to assess whether Interbake has satisfied its burden. On remand, the District Court should conduct an in camera review of the documents to determine whether they are privileged.


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