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UNITED STATES DISTRICT COURT OCT 12 2022
WESTERN DISTRICT OF NEW YORK L □
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LINDA M. LESLIE, Regional
Director of the Third Region of
the National Labor Relations
Board for and on behalf of the
National Labor Relations Board,
Petitioner,
v.
22-CV-478 (JLS)
STARBUCKS CORPORATION,
Respondent.
DECISION AND ORDER
Last month, the Court set deadlines for limited document discovery.
Respondent Starbucks Corporation served document subpoenas on current and
former Starbucks employees and the custodian of records for Workers United.
Workers United, which agreed to accept service of the subpoenas on behalf of
Starbucks employees,! moved to quash the subpoenas issued to those employees and
to its custodian of records. On September 23, 2022, the Court granted, in part, and
denied, in part, the motions to quash? and set deadlines for document production,
briefing on the petition, and a hearing at which the Court may allow the parties to
present testimony from certain witnesses. Dkt. 49.
1 The Court recently granted Workers United permission to participate in this case
as amicus curiae to the extent of “filing a brief. .., but... not present[ing] evidence
or participat[ing] in oral arguments or any hearing.” Dkt. 52, at 10.
2 Petitioner Linda M. Leslie also moved to quash the subpoenas. Dkt. 44.
In particular, the Court “rejected the motions [to quash] on privilege grounds,
as raised in the motions—e.g., the blanket claims of privilege to entire topics.” Id.
at 3.3 But the Court allowed “anyone in the possession of responsive documents
[who] objects, in good faith, to the production of specific documents on a specific,
articulable privilege ground|[,] . . . to do so following the proper procedure, including
providing a particularized privilege log.” Id. Because the Second Circuit does not
recognize a union-employee privilege in this context, the Court cautioned against
withholding documents on that basis. See id. at 3 & n.1 (citing Hernandez v. Office
of the Comm’ of Baseball, 331 F.R.D. 474, 477 (S.D.N.Y. 2019)). The Court ordered
production of responsive documents and service of any privilege logs by October 14,
2022. Id. at 8.
On October 7, 2022—two weeks after the Court’s discovery order and a week
before the deadline for document production—Workers United moved the Court to
(1) reconsider its discovery order, or (2) certify the question of “whether the
information that the discovery order requires [Workers United] to submit to
[Respondent] is protected under the law,” to facilitate an interlocutory appeal by
Workers United. See Dkt. 53, at 1. Petitioner responded in support of Workers
United’s motion for reconsideration, for the reasons stated in her motion to quash
the subpoenas (Dkt. 44), but took no position on Workers United’s certification
request or the unfair labor practice charge Workers United filed based on
3 Unless otherwise noted, page references are to the numbering in the footer of each
page and not to the numbering automatically generated by CM/ECF.
Respondent’s subpoenas. See Dkt. 55. Respondent opposed Workers United’s
motion in all respects. See Dkt. 56.
For the reasons below, the Court denies Workers United’s motion in full.
DISCUSSION
I. Motion for Reconsideration
Workers United first asks the Court to reconsider the order granting, in part,
and denying, in part, its motions to quash subpoenas served on its custodian of
records and on current and former Starbucks employees.
A motion for reconsideration presents “an extraordinary request,” and the
“standard for a district court to grant such a motion is strict.” Smith v. CVS
Albany, LLC, No. 20-4000, 2022 WL 3022526, at *1 (2d Cir. Aug. 1, 2022) (internal
citations, quotation marks, and alterations omitted). Courts typically deny motions
for reconsideration “unless the moving party can point to controlling decisions or
data that the court overlooked—matters, in other words, that might reasonably be
expected to alter the conclusion reached by the court.” Shrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995). A court should not grant a motion for
reconsideration “where the moving party seeks solely to relitigate an issue already
decided.” Id.
Here, Workers United cites neither controlling decisions nor data that the
Court overlooked when ruling on the motions to quash and analyzing the privilege
question. Workers United relies on the decisions it cited in its motions to quash—
NLRB decisions and distinguishable cases—none of which amounts to controlling
decisions overlooked by the Court. The only arguably new data Workers United
presents is the unfair labor practice charge it filed on October 5, 2022, based on
Respondent’s service of the subpoenas at issue here. Workers United claims that,
because it filed an unfair labor practices charge with the NLRB,‘ the NLRA
preempts enforcement of Respondent’s subpoenas. But Workers United cites no
authority to support that claim. See Dkt. 53, at 4-5.
Because Workers United does not meet the standard that applies to motions
for reconsideration, the Court denies that request.
II. Motion to Certify Question under 28 U.S.C. § 1292(b)
As an alternative to reconsideration, Workers United asks the Court to
certify, pursuant to 28 U.S.C. § 1292(b), “the question of whether the information at
issue is protected under the law,” so it can file an interlocutory appeal of the
discovery order to the Second Circuit. Dkt. 53, at 1, 4.
A district court may so certify when it is “of the opinion that such order
involves a controlling question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the order may materially
advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). The
Second Circuit has “urged . . . district courts to exercise great care in making a
4 The Court notes that Workers United filed this charge 25 days after Respondent
issued the subpoenas, 13 days after the Court’s order on the motions to quash, and
2 days before this motion for reconsideration.
§ 1292(b) certification.” Westwood Pharms., Inc. v. Nat'l Fuel Gas Distrib. Corp.,
964 F.2d 85, 89 (2d Cir. 1992).
Workers United does not meet the Section 1292(b) standard. Assuming that
Workers United raises a controlling question of law, the Court cannot conclude
that there exists substantial ground for a difference of opinion regarding that
question—especially because Workers United cites no cases from this circuit or in
this context to support its position.
Nor can the Court conclude that an immediate appeal may materially
advance the termination of this litigation, in light of the safeguards imposed
regarding subpoena compliance. In particular, the Court’s discovery order imposes
significant limits on document production designed to address Workers United’s
concerns, including quashing numerous document requests, paring down other
requests, allowing redactions, and providing the opportunity to submit privilege
logs through which Respondent and (if necessary) the Court may address privilege
objections as to specific documents. See Dkt. 49. The Court’s order does not, as
Workers United seems to suggest, order unfettered document production.
For these reasons, the Court denies Workers United’s alternative request for
certification under 28 U.S.C. § 1292(b).
5 For purposes of this decision and order only, the Court assumes that Workers
United raises such a question.
CONCLUSION
For these reasons, the Court denies, in full, Workers United’s motion for
reconsideration and certification under 28 U.S.C. § 1292(b) (Dkt. 53).
SO ORDERED.
JOH L. SINATRA, JR.
UNITED STATES DISTRICT JUDGE
Dated: October 12, 2022
Buffalo, New York