The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NATIONAL LABOR RELATIONS
BOARD,
Petitioner,
v.
Civ. No. 22-04702 (KM) (CLW)
NEW VISTA NURSING AND
REHABILITATION CENTER and ORDER
JASINSKI, P.C.,
Respondents.
THIS MATTER having come before the Court on the National Labor
Relations Board’s (“NLRB”) motion to enforce administrative subpoenas (DE 1)
and Magistrate Judge Waldor’s Recommendation Enforcing Subpoenas (DE 18)
(the “Recommendation”); and the Court having considered Respondent
Jasinski, P.C.’s (“Jasinski’s”) objection to the Recommendation (DE 19) and
NLRB’s response thereto (DE 20) without oral argument pursuant to Fed. R.
Civ. P. 78(b); and
IT APPEARING that Congress gave the NLRB broad authority to
subpoena information in connection with their investigations. 29 U.S.C. § 161;
and
IT FURTHER APPEARING that where a person refuses to obey a Board
subpoena, Congress gave district courts authority, “upon application by the
Board . . . to issue to such person an order requiring such person to appear
before the Board, its member, agent, or agency, there to produce evidence if so
ordered, or there to give testimony touching the matter under investigation or
in question.” 29 U.S.C. § 161(2); and
IT FURTHER APPEARING that Respondents have not complied with the
subpoenas; and
IT FURTHER APPEARING that Magistrate Judge Waldor considered the
record and recommended that the NLRB’s application be granted and that the
subpoenas at issue be enforced in their entirety. (DE 18); and
IT FURTHER APPEARING that the only objection raised to the
Recommendation is that Jasinski claims the subpoenas at issue “seek
privileged and confidential information” and that certain information is
“protected under attorney/client privilege,” DE 19 at 2, while Jasinski does not
set forth what particular information is privileged or cite any authority; and
IT FURTHER APPEARING that the party asserting the privilege bears
the burden of asserting it,1 and that Jasinski’s blanket claims of privilege are
insufficient; and
IT FURTHER APPEARING that Respondent New Vista Nursing and
Rehabilitation Center has not made any objections to the Recommendation;
and
THE COURT HAVING independently reviewed the record and the
Recommendation and found no clear error;2
For the foregoing reasons, and good cause appearing therefor;
IT IS this 20th day of September 2023,
1 The party asserting a privilege or protection bears the burden of establishing
its applicability on a document-by-document basis.” Occidental Chem. Corp. v. 21st
Century Fox Am., Inc., No. 18-11273, 2022 WL 2805637, at *3 (D.N.J. July 18, 2022)
(citation omitted). The “appropriate method” for asserting the privilege as to a
deposition is “to allow the deposition to be taken and permit the attorney to claim
privilege in the face of certain questions, if necessary.” V. Mane Fils, S.A. v. Int’l Flavors
& Fragrances Inc., No. 06-2304, 2008 WL 3887621, at *4 (D.N.J. Aug. 20, 2008)
(noting that the attorney “is certainly free to object to individual questions on privilege
grounds” but that “a blanket prohibition on a deposition is inappropriate”). As to
requests for documents, “claims of attorney-client privilege must be asserted
document by document, rather than as a single, blanket assertion.” United States v.
Rockwell Int’l, 897 F.2d 1255, 1265 (3d Cir. 1990) (citation omitted).
2 “[W]here no objections are made in regard to a report or parts thereof, the
district court will adopt the report and accept the recommendation if it is ‘satisf[ied] . .
. that there is no clear error on the face of the record.’” Sportscare of Am., P.C. v.
Multiplan, Inc., No. 10-4414, 2011 WL 500195, at *1 (D.N.J. Feb. 10, 2011) (quoting
Fed. R. Civ. P. 72 Advisory Committee’s Notes).
ORDERED that the Recommendation Enforcing Subpoenas (DE 18) is
adopted in its entirety; and it is further
ORDERED that NLRB’s motion to enforce the subpoenas is GRANTED;
and it is further
ORDERED that the Clerk of the Court is directed to close this matter.
/s/ Kevin McNulty
____________________________________
Kevin McNulty
United States District Judge