National Labor Relations Board v. Interbake Foods, LLC

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NATIONAL LABOR RELATIONS 

BOARD,

Petitioner-Appellant,

v.  No. 09-2245

INTERBAKE FOODS, LLC,

Respondent-Appellee.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Richard D. Bennett, District Judge.

(1:09-cv-02081-RDB)

Argued: October 28, 2010

Decided: February 22, 2011

Before NIEMEYER and GREGORY, Circuit Judges,

and Damon J. KEITH, Senior Circuit Judge of the

United States Court of Appeals for the Sixth Circuit,

sitting by designation.

Affirmed in part and remanded in part for further proceedings

by published opinion. Judge Niemeyer wrote the opinion, in

which Judge Gregory and Senior Judge Keith joined.

2 NLRB v. INTERBAKE FOODS

OPINION

ARGUED: Kevin Patrick Flanagan, NATIONAL LABOR

RELATIONS BOARD, Washington, D.C., for Appellant.

Mark Keenan, MCGUIREWOODS, LLP, Atlanta, Georgia,

for Appellee. ON BRIEF: Ronald Meisburg, General Coun-

sel, John E. Higgins, Jr., Deputy General Counsel, John H.

Ferguson, Associate General Counsel, Margery E. Lieber,

Deputy Associate General Counsel, Eric G. Moskowitz,

Assistant General Counsel, Nancy E. Kessler Platt, Supervi-

sory Attorney, NATIONAL LABOR RELATIONS BOARD,

Washington, D.C., for Appellant. Brennan W. Bolt,

MCGUIREWOODS LLP, Atlanta, Georgia; Christopher M.

Michalik, MCGUIREWOODS LLP, Richmond, Virginia, for

Appellee.

OPINION

NIEMEYER, Circuit Judge:

In connection with an administrative hearing before the

National Labor Relations Board ("NLRB" or "Board") on

charges of unfair labor practices against Interbake Foods,

LLC, the Board issued a subpoena duces tecum to Interbake,

requiring it to appear, to testify, and to produce a broad array

of documents at the hearing. Interbake produced some docu-

ments and asserted attorney-client and attorney work-product

privileges as to others. Following the NLRB General Coun-

sel’s challenge to three of the allegedly privileged documents,

the administrative law judge ("ALJ") issued an order requir-

ing Interbake to produce the documents for in camera review.

When Interbake refused, the Board filed this application

under § 11(2) of the National Labor Relations Act ("NLRA"

or "the Act"), 29 U.S.C. § 161(2), for enforcement of the sub-

poena, requesting that the district court order Interbake to pro-

duce the three documents to the ALJ for in camera review so

NLRB v. INTERBAKE FOODS 3

that the ALJ could "fully consider [Interbake’s] claims of

privilege with respect to [the three] documents."

The district court denied the Board’s application by order

dated September 22, 2009. It concluded first that "only an

Article III court may determine whether subpoenaed docu-

ments are protected by the attorney-client or attorney work-

product privileges. As a result, the ALJ’s order requiring

Interbake to hand over certain privileged documents for in

camera review by him was improper." NLRB v. Interbake

Foods, LLC, No. RDB 09-2081, 2009 WL 3103819, at *4 (D.

Md. Sep. 22, 2009). It then concluded as to the three docu-

ments in question that it need not conduct an in camera

inspection because "Interbake ha[d] met its burden of estab-

lishing that the documents [were] privileged under Federal

Rule of Civil Procedure 26(a)(5)(A), and the NLRB ha[d] not

articulated a good faith basis for doubting Interbake’s claim

of privilege." Id. at *4 n.1.

In this appeal from the district court’s order, the Board con-

tends that Congress authorized ALJs, in the first instance, to

evaluate privilege objections to subpoenaed documents—

through in camera review if necessary—and that "judicial

review [of an ALJ’s determination is] available only after

objections are considered and denied by the Board." The

Board also contends that the district court abused its discre-

tion in declining to conduct an in camera review of the three

documents in question.

We agree in large part with the Board’s position that Con-

gress conferred authority on the Board—and on ALJs as its

delegatees conducting administrative hearings on behalf of

the Board—to receive and evaluate evidence under the Fed-

eral Rules of Evidence and to rule on claims of privilege

made with respect to that evidence. But we also hold that an

ALJ’s order imposed in the course of an administrative hear-

ing, even when ruling on evidence, can only be enforced by

an Article III court. When refusal to comply with a subpoena

4 NLRB v. INTERBAKE FOODS

and the Board’s order to produce documents is based on the

attorney-client or work-product privilege, the Board’s

recourse is to apply to the district court for an order enforcing

the subpoena. In deciding whether to enforce the subpoena,

the court must then assess the legitimacy of the claimed privi-

lege. Thus, while we do not preclude any administrative

assessment of claims of privilege, we do conclude that when

an assessment of those claims is necessary to a court’s deter-

mination of whether to enforce the subpoena, the assessment

must be conducted by the court.

On the question of whether the district court abused its dis-

cretion in declining to conduct an in camera inspection of the

three documents, we affirm in part and remand in part, direct-

ing the court to review the privilege claim as to the "e-mail

string" attached to two e-mails that the court found privileged.

I

During the course of two unsuccessful organizing cam-

paigns by the Bakery, Confectionery, Tobacco Workers and

Grain Millers International Union, Local 68 ("the Union") at

Interbake’s facility in Front Royal, Virginia, the Union filed

unfair labor practice charges against Interbake, and the NLRB

issued various complaints against Interbake on those charges.

At the hearing on those complaints before the NLRB, con-

ducted by ALJ John T. Clark, an Interbake employee, Missy

Jones, revealed that during the campaigns, she had secretly

recorded conversations with Interbake colleagues and supervi-

sors. Following an investigation into the matter, conducted by

Interbake’s Human Resources Manager, Jill Slaughter, Inter-

bake fired Jones for violating company policy in (1) smug-

gling the recorder into Interbake’s facility in violation of

Interbake’s electronic device policy, (2) violating company

policy by admittedly recording line team meetings, and (3)

violating Interbake’s work conduct provisions by the manner

in which she handled the recordings. The Union promptly

filed an additional unfair labor practice charge, alleging that

NLRB v. INTERBAKE FOODS 5

Jones’ firing was motivated by a desire to punish Jones for

her Union activities and for testifying against Interbake, and

the Board issued another complaint on that charge. That com-

plaint was also assigned to ALJ Clark, who consolidated the

hearing on that complaint with the hearing on the earlier filed

complaints.

At the request of the NLRB General Counsel, the Board

issued a subpoena to Jill Slaughter to appear before Judge

Clark, to testify at the hearing, and to bring with her a broad

array of documents. In the designation of documents, the sub-

poena demanded that, with respect to any document withheld

from production on a claim of privilege, Slaughter describe

the document’s author, recipient, date, and subject matter. In

response to the subpoena, Interbake produced approximately

320 pages of documents and withheld about 50 documents or

groups of documents, asserting that they were protected by

the attorney-client or work-product privilege. As requested by

the Board, Interbake provided a privilege log setting forth the

information requested about each document withheld. See

also Fed. R. Civ. P. 26(a)(5)(A). At the same time, Interbake

also filed a petition to revoke the subpoena as to the privi-

leged documents, pursuant to § 11(1) of the NLRA, 29 U.S.C.

§ 161(1).

At the hearing, Slaughter testified that the earliest she had

communicated with anyone regarding Missy Jones’ termina-

tion was February 13, 2009. This testimony, however, con-

flicted with Interbake’s privilege log, which listed two e-mails

authored by Slaughter on February 9, 2009, regarding the

"Missy Jones investigation" (Bates Nos. IBF100113 and

IBF100427). Based on the inconsistency in dates, the General

Counsel requested that ALJ Clark conduct an in camera

inspection of those documents to determine whether they

were in fact privileged. The General Counsel also sought an

in camera inspection of handwritten notes of a telephone con-

versation taken by Angie Otto, a non-attorney, regarding the

Jones investigation (Bates No. IBF100179). Following the

6 NLRB v. INTERBAKE FOODS

arguments of counsel and the ALJ’s review of the Board’s

decision in CNN America, Inc., 352 N.L.R.B. 448 (2008), the

Judge concluded that the only proper exercise of his discre-

tion would be to take a look at the three documents in camera.

He said, "I feel I have to do it, I’m bound to do it, and so I

can’t argue against the Board because I have to follow what

I think is their direction, and I do. So I have to order you to

give me the [three] documents from the privilege log." After

Interbake stated that it was "not prepared" to comply with the

order, the Board filed this application for enforcement of the

subpoena and the ALJ’s order for in camera review.

In its application, the Board sought specifically an order

from the district court directing Interbake "to comply with

Judge Clark’s lawful order that it produce documents

IBF100113, IBF100427, and IBF100179 responsive to the

Board’s administrative subpoena duces tecum at such time

and place as Judge Clark may designate for an in camera

inspection so that Judge Clark may fully consider [Inter-

bake’s] claims of privilege with respect to those documents."

Following a hearing, the district court denied the application

by order dated September 22, 2009, and this appeal followed.

II

The Board contends that the district court erred in refusing

to issue an order directing Interbake to produce the three sub-

poenaed documents to ALJ Clark for in camera review. This

review, the Board argues, would enable the ALJ, in the first

instance, to determine whether the documents are protected

by a privilege. In refusing to issue the order, the district court

held that "only an Article III court may determine whether

subpoenaed documents are protected by the attorney-client or

attorney work-product privileges." Interbake Foods, 2009 WL

3103819, at *4. This impasse between the Board and the dis-

trict court raises the ultimate question about the division of

power between the NLRB and Article III courts. The NLRB

asserts that the answer will not only be important to the nar-

NLRB v. INTERBAKE FOODS 7

row focus of this case but will also have "far-reaching conse-

quences that might apply to any executive or independent

regulatory agency or department that relies on federal courts

for the enforcement of its administrative subpoenas."

With its enactment of the NLRA, Congress created the

Board and empowered it to prevent any person from engaging

in any unfair labor practice affecting commerce. 29 U.S.C.

§ 160(a). And to that end, Congress authorized the Board to

file complaints charging violators with unfair labor practices

and to conduct hearings on those charges. Id. § 160(b). Tradi-

tionally, such hearings are conducted before ALJs as dele-

gatees of the Board, who are subject to Board review. See 29

C.F.R. §§ 102.31(b), 102.26. The Act provides that the hear-

ings "shall, so far as practicable, be conducted in accordance

with the rules of evidence applicable in the district courts." 29

U.S.C. § 160(b). Following a hearing, the Board is empow-

ered to issue cease and desist orders, orders reinstating

employees, and orders requiring reports. Such orders are sub-

ject to judicial review and enforcement. Id. § 160(e), (f).

To implement this charter, the Board is given investigatory

power with the authority to conduct hearings, subpoena testi-

mony and evidence, administer oaths, examine witnesses, and

receive evidence, 29 U.S.C. § 161(1), all of which are gener-

ally carried out in the first instance by ALJs.

Specifically, as relevant here, § 11(1) of the NLRA, 29

U.S.C. § 161(1), states that "[t]he Board, or any member

thereof, shall upon application of any party to [an NLRB] pro-

ceeding[ ], forthwith issue to such party subpenas requiring

the . . . production of any evidence in such proceeding[ ] or

investigation requested in such application." The Board is also

authorized, upon the motion of a party, to revoke the sub-

poena, in whole or in part, "if in its opinion the evidence

whose production is required does not relate to any matter

under investigation, or any matter in question in such pro-

ceedings, or if in its opinion such subpena does not describe

8 NLRB v. INTERBAKE FOODS

with sufficient particularity the evidence whose production is

required." Id. The bases for revocation stated in § 161(1) are

not, however, exclusive. See NLRB v. Interstate Builders,

Inc., 351 F.3d 1020, 1029 (10th Cir. 2003); Drukker

Commc’ns, Inc. v. NLRB, 700 F.2d 727, 730 (D.C. Cir. 1983).

Even when a subpoena targets relevant and well-defined

material, it may nonetheless be revoked if it is invalid "for

any other reason sufficient in law." 29 C.F.R. § 102.31(b). In

keeping with the Federal Rules of Civil Procedure, when

practicable to do so, see 29 U.S.C. § 160(b); NLRB v. Consol.

Bus Transit, Inc., 577 F.3d 467, 475 (2d Cir. 2009), the Board

has relied on Rules 26 and 45 in determining which "other

reason[s]" are sufficient to revoke or quash a subpoena, see

Brinks, Inc., 281 N.L.R.B. 468, 468-69 (1986); see also

EEOC v. Md. Cup Corp., 785 F.2d 471, 477-78 (4th Cir.

1986) (noting the relationship between § 160(1) and Rule 45).

These reasons include not only those that are immediately

apparent on a subpoena’s face but also those that can be deter-

mined through reference to authority, for instance the eviden-

tiary rules of privilege. See Fed. R. Civ. P. 45(c)(3)(A)(iii).

But when all is said, the NLRA carefully recognizes the

appropriate divide between the administrative authority to

conduct hearings and issue orders and the exclusively judicial

power of Article III judges to enforce such orders. The line of

division tracks Supreme Court’s observations in Interstate

Commerce Comm’n v. Brimson, 154 U.S. 447, 485 (1894),

abrogated on other grounds by Bloom v. Illinois, 391 U.S.

194, 198-200 (1968), where the Court stated:

The inquiry whether a witness before [an agency] is

bound to answer a particular question propounded to

him, or to produce books, papers, etc., in his posses-

sion and called for by that body, is one that cannot

be committed to a subordinate administrative or

executive tribunal for final determination. Such a

body could not, under our system of government,

and consistently with due process of law, be invested

NLRB v. INTERBAKE FOODS 9

with authority to compel obedience to its orders by

a judgment of fine or imprisonment.

Section 11(2) of the NLRA, 29 U.S.C. § 161(2), providing

specifically for court enforcement of subpoenas, manifests

this division of authority. It provides:

In case of contumacy or refusal to obey a subpena

issued to any person, any district court of the United

States . . . within the jurisdiction of which the

inquiry is carried on or within the jurisdiction of

which said person guilty of contumacy or refusal to

obey is found or resides or transacts business, upon

application by the Board shall have jurisdiction 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 . . .

.

29 U.S.C. § 161(2). This structural limitation on the NLRB’s

authority, emanating from the Constitution’s separation of

powers and due process requirements, "protect[s] against

abuse of subpoena power." United States v. Bell, 564 F.2d

953, 959 (Temp. Emer. Ct. App. 1977).

Inherent in the Board’s authority to issue subpoenas, to

revoke subpoenas, to examine witnesses, and to receive evi-

dence in accordance with the Federal Rules of Evidence is the

authority to make substantive rulings on the grounds for

objection to subpoenas and to the admissibility of evidence at

the administrative hearing. See NLRB v. Duval Jewelry Co.,

357 U.S. 1, 8 (1958) ("Certainly preliminary rulings on sub-

poena questions are as much in the purview of a hearing offi-

cer as are rulings on evidence and the myriad of questions

daily presented to him"). And within this scope, Board adjudi-

cators are authorized to make rulings on questions of privi-

lege, as they have been doing for decades. See, e.g., In re

Kaiser Aluminum & Chem. Corp., 339 N.L.R.B. 829, 829

10 NLRB v. INTERBAKE FOODS

(2003); Taylor Lumber and Treating, Inc., 326 N.L.R.B.

1298, 1299-1300 (1998); Feld & Sons, Inc., 263 N.L.R.B.

332, 332 (1982); Jackson Sportswear Corp., 211 N.L.R.B.

891, 899 n.33 (1974); Elias Bros. Big Boy, Inc., 137 N.L.R.B.

1057, 1066 n.4 (1962).

In most cases, an ALJ’s rulings on privilege do not require

court enforcement, because the parties either comply volun-

tarily with the ALJ’s rulings, see, e.g., Patrick Cudahy, Inc.,

288 N.L.R.B. 968, 968-69 (1988); see also Horizon Corp. v.

FTC, No. 76-2031, 1976 U.S. Dist. LEXIS 12222, at *2-7

(D.D.C. Nov. 18, 1976), or the ALJ’s rulings are made with-

out the need for inspection of the underlying documents, see,

e.g., Taylor Lumber, 326 N.L.R.B. at 1299-1300. If enforce-

ment becomes necessary, however, the parties must then turn

to the district courts to obtain it. At that time, only the district

court determines whether to enforce the subpoena and, in

making that determination, evaluates the claims of privilege

and, if necessary, conducts an in camera review. Moreover,

in carrying out this judicial function, the court cannot delegate

its task of conducting an in camera review to an ALJ.

This reservation of authority to Article III courts protects

against abuse of the subpoena power. While judicial scrutiny

of administrative subpoenas is, to be sure, limited, see EEOC

v. City of Norfolk Police Dept., 45 F.3d 80, 82 (4th Cir. 1995),

courts do not simply order the enforcement of subpoenas as

a matter of course, and certainly not blindly, see Penfield Co.

v. SEC, 330 U.S. 585, 604 (1947) (Frankfurter, J., dissenting).

Citing Brimson, Justice Frankfurter articulated the established

principle:

Instead of authorizing agencies to enforce their sub-

poenas, Congress has required them to resort to the

courts for enforcement. In the discharge of that duty

courts act as courts and not as administrative

adjuncts. The power of Congress to impose on courts

the duty of enforcing obedience to an administrative

NLRB v. INTERBAKE FOODS 11

subpoena was sustained precisely because courts

were not to be automata in carrying out the wishes

of the administrative. They were discharging judicial

power with all of the implications of the judicial

function in our constitutional scheme.

Id. at 604 (Frankfurter, J., dissenting).

Accordingly, before a court commands a party to comply

with a subpoena, it must first determine that the subpoena "is

within the authority of the agency, the demand is not too

indefinite and the information sought is reasonably relevant."

United States v. Morton Salt Co., 338 U.S. 632, 652 (1950).

In short, on an application of an administrative agency for the

enforcement of a subpoena in court, the respondent is guaran-

teed an opportunity to contest the subpoena’s validity through

any appropriate defense. See Penfield, 330 U.S. at 604 (enum-

erating several grounds on which "[a]n administrative sub-

poena may be contested"); NLRB v. Cable Car Advertisers,

Inc., 319 F. Supp. 2d 991, 996 (N.D. Cal. 2004) ("[A] party

[to] . . . a subpoena enforcement proceeding may raise appro-

priate defenses once in district court"). In addition to guarding

against over breadth or a lack of specificity, the right to raise

appropriate defenses includes the right to vindicate claims that

a subpoena improperly calls for records protected by the

attorney-client or work-product privileges. See, e.g., Director,

Office of Thrift Supervision v. Vinson & Elkins, LLP, 124

F.3d 1304, 1306-07 (D.C. Cir. 1997); NLRB v. Harvey, 349

F.2d 900, 907 (4th Cir. 1965). Because a respondent’s claim

of privilege is the basis for its refusing to produce documents

in response to a subpoena, it is inherent in carrying out the

judicial function of deciding whether to enforce the subpoena

to resolve the respondent’s challenge to the subpoena. See

NLRB v. Int’l Medication Sys., Ltd., 640 F.2d 1110, 1115-16

(9th Cir. 1981); Harvey, 349 F.2d at 907 (holding that the dis-

trict court was required to conduct "a full evidentiary hearing"

before enforcing a Board subpoena challenged on privilege

grounds).

12 NLRB v. INTERBAKE FOODS

Thus, in this case, ALJ Clark had authority, on the basis of

the privilege log and the Board’s response to it, to sustain the

claim of privilege or to order the production of documents for

in camera review. But when Interbake refused to comply with

that order, the ALJ lacked the power to enforce it. To obtain

enforcement, the Board had to apply to the district court for

a judicial order of enforcement, in accordance with the estab-

lished division of powers between agencies and courts.

We do not say that an ALJ does not have authority to rule

on a claim of privilege. He can make such a ruling just as he

could rule on any issue of evidence presented to him during

the course of a hearing. But the ALJ has no power to require

the production of documents for in camera review or for

admission into evidence when a person or party refuses to

produce them. That would require Article III power, which

the ALJ does not have.

Once the Board files an application for judicial enforce-

ment, the district court is given the authority to evaluate the

parties’ positions and to take any action it believes appropri-

ate for determining whether the subpoena should be enforced.

See, e.g., NLRB v. Silver Spur Casino, 623 F.2d 571, 579-80

(9th Cir. 1980); NLRB v. Indep. Ass’n of Steel Fabricators,

Inc., 582 F.2d 135, 145 (2d Cir. 1978) (overruled on other

grounds by Charles D. Bonanno Linen Serv., Inc. v. NLRB,

454 U.S. 404 (1982)). It can make its ruling on the basis of

the privilege log and the Board’s response to it, or it can order

in camera review. But what it cannot do is order production

of documents to the ALJ to conduct in camera review. Rather,

the district court must satisfy itself whether, under appropriate

legal standards, it should enforce the subpoena and thus over-

rule Interbake’s claim of privilege.

The Board argues that Congress intended that the Board

evaluate privilege objections made with respect to subpoe-

naed documents during the course of administrative hearings,

with judicial review available only after objections are consid-

NLRB v. INTERBAKE FOODS 13

ered and denied by the Board. We agree with that articulation

to the extent the Board is able to make those determinations,

because rulings on privilege are inherent in conducting a hear-

ing and ruling on evidence. But if, in carrying out that func-

tion, it becomes necessary for the ALJ to order the production

of documents and the responding party chooses not to obey,

the ALJ and the respondent reach an impasse, which only an

Article III court can resolve. See Brimson, 154 U.S. at 486-87

(holding that compelling a witness to testify before an agency

and to produce documents "cannot be directly enforced except

by judicial process").

We also agree with the Board’s more particular claim that

the ALJ can order and conduct the in camera review of docu-

ments. But again, if the respondent refuses to comply with the

order, the issue can only be enforced by an Article III court.

Finally, we agree with the Board’s argument that in camera

review by an ALJ is not in conflict with its role as factfinder.

The agency’s structure ensures sufficient independence of

ALJs to conduct hearings fairly, especially when they are sub-

ject to Board review and judicial review. We note that district

judges sitting without a jury are permitted to review docu-

ments in camera, and we see no reason to conclude that ALJs

are not likewise permitted to do so.

In view of this division of authority between the Board and

the courts, we disagree with the district court’s broad state-

ment that an ALJ may not "determine" whether documents

are subject to the attorney-client privilege. Indeed, ALJs are

often able to make that determination in the first instance. But

we do agree with the court that when a respondent, on the

basis of a claim of privilege, refuses to comply with an order

that would enable the ALJ to conduct an in camera review,

then only an Article III court may resolve the privilege claim

as part of its decision whether to enforce the subpoena.

The Board argues, even so, that the district court should

defer on assessing the privilege claim and issue an order

14 NLRB v. INTERBAKE FOODS

directing Interbake to produce the questioned documents to

the ALJ to permit him in the first instance to conduct an in

camera review and make the privilege ruling. It argues that

§ 161(1) contemplates Board action on a motion to revoke a

subpoena before court action. As it states, "by insisting that

a federal district court be the first—and essentially exclusive

—forum to rule on privilege objections, Interbake and the

court below reverse[d] this statutory procedure." This posi-

tion, however, would require the district court to use its judi-

cial power to enforce subpoenas blindly, without determining

itself whether the subpoena was subject to enforcement. This

type of deferral and blind ruling would amount to no less than

an improper delegation of Article III power to the ALJ. See

Penfield Co., 330 U.S. at 604 (Frankfurter, J., dissenting)

(noting that courts, when enforcing agency subpoenas, are not

to be "automata carrying out the wishes of the administrative

[agency]").

Moreover, the scheme suggested by the Board would also

devolve into a piecemeal enforcement process such that the

district court would be called upon to review each incremental

step, resulting in an overly fragmented administrative pro-

ceeding. Moving in that direction would either interfere

unduly with the administrative process or tend ultimately

toward an improper delegation of Article III power to ALJs.

At bottom, we recognize that the Board has authority in

connection with its role in investigating charges and conduct-

ing hearings to subpoena documents; to revoke subpoenas in

whole or in part; to receive evidence in accordance with the

Rules of Evidence in the district courts, to the extent practica-

ble; to rule on evidence, including rulings on claims of privi-

lege; and to order and conduct in camera review of

documents, as required to make evidentiary determinations.

But recognizing the division of power between the adminis-

trative authority of the NLRB and the judicial power of Arti-

cle III courts, we hold that only an Article III court may

enforce the orders and subpoenas of the Board or an ALJ as

NLRB v. INTERBAKE FOODS 15

the delegatee of the Board. Thus, when, on the Board’s appli-

cation, an Article III judge is called on to determine whether

to enforce a Board subpoena, the court must exercise its full

judicial function and decide for itself the validity of the sub-

poena and the validity of the reason given for not complying

with it.

In this case, we affirm the district court’s order insofar as

it refused to delegate to the ALJ its responsibility to decide

the issue of privilege, even though we take exception to the

court’s unqualified statement that only an Article III judge has

authority to determine an issue of privilege.

III

This now brings us to the question of whether the district

court erred in handling and deciding Interbake’s privilege

claim with respect to the three documents in question. In a

two-sentence footnote at the end of its opinion, the district

court concluded that Interbake made a prima facie showing of

privilege as to these documents and that the Board failed to

present evidence sufficient to call that showing into question.

The Board contends that both of these conclusions were

unjustified.

We review the district court’s privilege determination for

abuse of discretion. See NLRB v. Carolina Food Processors,

81 F.3d 507, 510 (4th Cir. 1996). Under this standard of

review, we will reverse the district court’s ruling "only in the

most extraordinary of circumstances." Id. (quoting NLRB v.

G.H.R. Energy Corp., 707 F.2d 110, 113 (5th Cir. 1982)).

A party asserting privilege has the burden of demonstrating

its applicability. See United States v. Jones, 696 F.2d 1069,

1072 (4th Cir. 1982) (per curiam). In claiming the attorney-

client privilege, a party must satisfy procedural and substan-

tive criteria. Procedurally, the party must "expressly make the

claim" and "describe the nature of the documents . . . in a

16 NLRB v. INTERBAKE FOODS

manner that, without revealing information itself privileged or

protected, will enable other parties to assess the claim." Fed.

R. Civ. P. 26(a)(5)(A). Substantively, a party must show that:

(1) the asserted holder of the privilege is or sought

to become a client; (2) the person to whom the com-

munication was made (a) is a member of the bar of

a court, or is his subordinate and (b) in connection

with this communication is acting as a lawyer; (3)

the communication relates to a fact of which the

attorney was informed (a) by his client (b) without

the presence of strangers (c) for the purpose of

securing primarily either (i) an opinion on law or (ii)

legal services or (iii) assistance in some legal pro-

ceeding, and not (d) for the purpose of committing

a crime or tort; and (4) the privilege has been (a)

claimed and (b) not waived by the client.

Jones, 696 F.2d at 1072 (quoting United States v. United Shoe

Machinery Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950)).

And in claiming the work-product privilege, the party must

demonstrate that the documents in question were created "in

preparation for litigation." In re Grand Jury Proceedings, 33

F.3d 342, 348 (4th Cir. 1994) (citing Hickman v. Taylor, 329

U.S. 495, 509-14 (1947)). When a party relies on a privilege

log to assert these privileges, the log must "as to each docu-

ment . . . set[ ] forth specific facts that, if credited, would suf-

fice to establish each element of the privilege or immunity

that is claimed." Bowne, Inc. v. AmBase Corp., 150 F.R.D.

465, 474 (S.D.N.Y. 1993).

In this case, Interbake provided a privilege log in which it

identified the nature of each document, the date of its trans-

mission or creation, the author and recipients, the subject, and

the privilege asserted. Although the log is not detailed, if the

assertions contained in it are credited, a court could reason-

ably conclude that all of the elements described in Rule

26(a)(5) and the test set forth in Jones had been met. While

NLRB v. INTERBAKE FOODS 17

it is true, as the Board argues, that the attorney-client privilege

does not apply simply because documents were sent to an

attorney, see Simon v. G.D. Searle & Co., 816 F.2d 397, 403

(8th Cir. 1987), Interbake’s log does more than that. It also

shows that the communications concerned an investigation

closely linked to the ongoing NLRB adjudication. Accord-

ingly, we conclude that the district court did not abuse its dis-

cretion in concluding that the privilege log had made a prima

facie showing that the three documents in question were pro-

tected from production by the attorney-client privilege.

Likewise, we conclude that the district court was within its

discretion to reject the Board’s proffered reasons for doubting

Interbake’s preliminary showing of privilege. Once a prima

facie showing of a privilege has been made, an opposing party

can justify in camera inspection of the documents by advanc-

ing "a factual basis sufficient to support a reasonable, good

faith belief that in camera inspection may reveal evidence that

information in the materials is not privileged." In re Grand

Jury Investigation, 974 F.2d 1068, 1074 (9th Cir. 1992); see

also G.D. v. Monarch Plastic Surgery, 239 F.R.D. 641, 650

(D. Kan. 2007) (requiring a "cogent basis" to justify in cam-

era review). The Board claims that it met this standard by

showing a conflict between Jill Slaughter’s testimony that the

earliest she communicated with anyone about the Missy Jones

investigation was "around February 13," 2009, and Inter-

bake’s privilege log, which identifies two e-mails that Slaugh-

ter sent on February 9, 2009 regarding the "Missy Jones

Investigation." The fact that Slaughter may have testified

incorrectly regarding the dates of her communications (inten-

tionally or otherwise) does not compel an inference that her

February 9 e-mails were not privileged. Especially in light of

the heightened standard of review on such matters, we find

this argument insufficient to justify reversal.

The Board notes additionally that even if the privilege log

and the Board’s response failed to justify an in camera

inspection of the three documents in question, the privilege

18 NLRB v. INTERBAKE FOODS

log failed to disclose that the two e-mails authored by Jill

Slaughter on February 9, 2009 (Bates Nos. IBF100113 and

IBF100427) in fact prompted replies, forming an "e-mail

string" that was not identified in the privilege log. Interbake

disclosed the existence of these replies for the first time in its

response before the district court. The Board notes that

because two of the e-mail recipients were lawyers and two

were non-lawyers, the fact that there were replies would

require an independent assessment of each of the reply e-

mails to determine whether the replies and any other e-mails

in the string were properly protected by a claim of privilege.

Generally, each e-mail within a particular line of discussion

must be analyzed separately for privilege purposes. See In re

Universal Serv. Fund Tel. Billing Practices Litig., 232 F.R.D.

669, 672-74 (D. Kan. 2005); Muro v. Target Corp., 243

F.R.D. 301, 306-07 (N.D. Ill. 2007). To the extent that the

replies to Jill Slaughter’s February 9, 2009 e-mails were writ-

ten by non-lawyers, the work-product privilege might not

apply. Similarly, if the e-mails failed any of the Jones criteria,

the attorney-client privilege might also be inapplicable.

Because Interbake has not presented a document-by-

document privilege analysis of the reply e-mails or offered a

specific reason why the e-mail string should be treated as a

group, see In re Universal Serv. Fund Litig., 232 F.R.D. at

673, we conclude that the district court must assess the privi-

lege claim with respect to each e-mail in the string to deter-

mine whether Interbake has carried its burden, see Jones, 696

F.2d at 1072.

In sum, we affirm the district court’s privilege ruling as to

the three documents identified in Interbake’s privilege log but

remand for further review as to any replies to Slaughter’s two

e-mails of February 9, 2009. On remand, the district court

should determine whether these documents are privileged and,

if necessary, conduct an in camera review for making that

determination.

NLRB v. INTERBAKE FOODS 19

AFFIRMED IN PART AND REMANDED

IN PART FOR FURTHER PROCEEDINGS