United States District Court, W.D. Tennessee, Eastern Division
OVERRULING RESPONDENT'S OBJECTIONS TO THE
MAGISTRATE JUDGE'S ORDER ON THE MOTION
TO STRIKE, OVERRULING IN PART, SUSTAINING IN
PART, AND HOLDING IN ABEYANCE IN PART
RESPONDENT'S OBJECTIONS TO THE MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION ON THE APPLICATION
TO ENFORCE SUBPOENA, AND ORDERING RESPONDENT
TO PRODUCE AN AMENDED PRIVILEGE LOG
DANIEL BREEN CHIEF UNITED STATES DISTRICT JUDGE
December 17, 2013, Applicant, the National Labor Relations
Board (“NLRB” or “Board”) applied to
this Court for an order enforcing a subpoena duces tecum
under Section 11(2) of the National Labor Relations Act
(“the Act”). 29 U.S.C. §§ 151-169
(2015). (Docket Entry (“D.E.”) 1.) The subpoena
is related to a pending unfair labor practice proceeding
concerning Tiffney Penley. On February 4, 2014, Respondent,
NPC International (“NPC”), filed a response in
opposition to the enforcement application, (D.E. 12), to
which the NLRB replied on February 24, 2014 (D.E. 13).
Thereafter, NPC moved to strike Applicant's reply. (D.E.
14.) The motion for an order enforcing a subpoena duces tecum
was referred to the magistrate judge for a report and
recommendation and/or determination on December 29, 2013,
(D.E. 6), and the motion to strike was referred to the
magistrate judge for determination on December 29, 2015 (D.E.
23). On February 9, 2016, United States Magistrate Judge
Edward G. Bryant entered an order denying NPC's motion to
strike and granting the NLRB's application to enforce the
subpoena and its request for attorney's fees. (D.E. 24.)
NPC subsequently submitted an emergency motion to stay Judge
Bryant's order, (D.E. 25), which this Court granted on
February 19, 2016 (D.E. 26). NPC then filed objections to the
magistrate judge's decision, (D.E. 27), which are
presently before the Court for review.
following facts were adduced from the pleadings. On March 29,
2013, Attorney Gordon E. Jackson filed a charge with the NLRB
on behalf of Ashley Lewis and Tiffney Penley.
charge alleged that
[t]he Employer constructively and retaliatorily discharged
Ashley Lewis by changing her work schedule upon learning that
Lewis had filed a collective action lawsuit seeking to
redress the wage claims of herself and other employees under
federal wage & hour laws. The Employer further failed to
properly process the workers' compensation claim of
employee Tiffney Penley in retaliation for her participation
in the same lawsuit and has subjected her to an unti[mely]
and unwarranted investigation of alleged wrongdoing while she
is on workers' compensation leave.
(D.E. 1 at PageID 7.)
20, 2013, the Board issued a subpoena duces tecum requesting
that Troy Baxter, NPC Human Resource Leader,  appear before it
on July 9, 2013, and provide the following:
1. All documents Respondent submitted to or received from the
Tennessee Department of Labor and Workforce Development
regarding the workers' compensation benefit claim of NPC
International, Inc. employee Tiffney Penley.
2. All documents reflecting the investigation of Tiffney
Penley's workers' compensation claim and all findings
and determinations made during the course of the
3. All documents reflecting communications relating in any
way to Tiffney Penley's workers' compensation claim.
4. All documents relating to the February 14, 2013 release by
Jeffrey M. Sorenson, MD authorizing Tiffney Penley to return
to work without restrictions.
5. All documents that discuss or refer to Sorenson's
medical release of Tiffney Penley.
(D.E. 1 at PageID 11-15.) Paragraph ten of the subpoena
directed that “if any document responsive to any
request herein was withheld from production on the asserted
ground that it is privileged, identify and describe the
following: (a) author; (b) recipient; (c) date of the
original document; (d) subject matter of the document; and
(e) nature of privilege asserted.” (Id. at
1, 2013, pursuant to NLRB regulations, NPC petitioned the
Board to revoke or modify the subpoena on various grounds.
(D.E. 1 at PageID 23.) Respondent asserted that the subpoena
sought to “improperly enjoin [NPC's] ability to
investigate or otherwise defend/prosecute Tiffney
Penley's state court claim . . . .” (Id.
at PageID 26.) NPC requested that the unfair labor practice
charge be held in abeyance pending the outcome of the
underlying workers' compensation claim, arguing that
“[t]o do otherwise would deprive NPC of its First
[A]mendment right to have state law questions decided by the
state judicial system.” (Id.)
also requested revocation on the ground that the subpoena was
overly broad. (D.E. 1 at PageID 27.) Respondent pointed to
language in the subpoena requesting “all documents,
” which NPC contended would lead to an
“exhaustive search” that was
“illogical” and “contrary to the NLRB's
mandates and the Federal Rules of Civil Procedure.”
(Id.) Respondent averred that the subpoena
“improperly [sought] the production of documents and
materials that are protected under the attorney-client
privilege and work product doctrine, ” specifically
requests 2-5 (Id.) Respondent did not offer any
details about the documents it withheld on these bases. NPC
further stated that the Board had not shown that the
documents requested were relevant to any issue in dispute.
(Id.) Finally, Respondent contended that request
4-records from Penley's doctor releasing her to full
duty-asked for documents that were outside NPC's control.
October 25, 2013, the Board denied Respondent's petition
to revoke. (D.E. 1 at PageID 38.) It concluded that the
subpoena sought relevant information for the matter under
investigation and “describe[d] with sufficient
particularity the evidence sought . . . .”
(Id.) The Board noted that NPC had “failed to
establish any other legal basis for revoking the
November 12, 2013, counsel for NPC emailed Applicant's
counsel and informed her that Respondent would not produce
any additional documents. (D.E. 1 at PageID 40.) Thereafter,
the NLRB applied to this Court seeking an order enforcing the
subpoena. (Id.) Applicant requested that this Court:
(1) issue an order directing NPC to show cause why an order
should not issue directing compliance with the subpoena, (2)
issue an order requiring Respondent to obey the subpoena
duces tecum and provide the requested documents within ten
days of entry ...