National Labor Relations Board v. Sanders-Clark and Co Inc

Filing 52

MINUTES (IN CHAMBERS) - EX PARTE APPLICATION TO STAY CASE (Dkt. 45 , filed May 5, 2016) by Judge Christina A. Snyder: Accordingly, the Court finds that respondent has failed to make the requisite showing to warrant a stay of the Courts April 25 Order. Respondents ex parte application is, therefore, DENIED. IT IS SO ORDERED. (clee)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

‘O’

Case No.

2:16-cv-02110-CAS(AFMx)

Title

NATIONAL LABOR RELATIONS BOARD V. SANDERS CLARK &
CO., INC.

Present: The Honorable

Date

May 10, 2016

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Not Present
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Not Present

Not Present

Proceedings:

(IN CHAMBERS) - EX PARTE APPLICATION TO STAY CASE
(Dkt. 45, filed May 5, 2016)

On April 25, 2016, the Court issued a ruling in this case finding that respondent
had waived the attorney-client privilege by failing to timely produce an adequate
privilege log and ordering defendant’s to produce all documents responsive to the
National Labor Relations Board’s subpoena. Dkt. 44. Thereafter, on May 5, 2016,
respondent filed a motion for leave to appeal the Court’s April 25 Order. Dkt. 46.1
Respondent now brings the instant ex parte application requesting that the Court stay the
effect of its April 25 Order pending the resolution of respondent’s appeal. Dkt. 47. On
May 6, 2016, the NLRB filed an opposition to this application. Dkt. 49.
In considering whether to grant a stay pending the resolution of an appeal, the
Court considers four factors: (1) likelihood of success on the merits of the appeal; (2)
harm to the defendant in the absence of a stay; (3) harm to the plaintiff if the action is
stayed; and (4) the public interest. Leiva–Perez v. Holder, 640 F.3d 962, 964–70 (9th
Cir. 2011) (citing Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). The decision whether
or not to issue a stay is “an exercise of judicial discretion,” and “[t]he propriety of its
issue is dependent upon the circumstances of the particular case.” Nken v. Holder, 556
1

On May 9, 2016, the NLRB filed a notice of non-opposition to respondent’s
motion for leave to appeal. Moreover, it is well established that district court decisions
granting or denying enforcement of NLRB subpoenas are final and ripe for review. See,
e.g., NLRB v. Bakersfield Californian, 128 F.3d 1339, 1340 (9th Cir. 1997); NLRB v. N.
Bay Plumbing, Inc., 102 F.3d 1005, 1006 (9th Cir. 1996). Accordingly, the Court hereby
GRANTS respondent leave to appeal the Court’s April 25 Order.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:16-cv-02110-CAS(AFMx)

May 10, 2016

Title

NATIONAL LABOR RELATIONS BOARD V. SANDERS CLARK &
CO., INC.

U.S. 418, 433 (2009) (quoting Virginian R. Co. v. United States, 272 U.S. 658, 672-73
(1926)).
The Court finds that a stay is inappropriate because respondent has failed to make a
showing that it is likely to succeed on the merits of its appeal. In order to justify a stay,
respondent must show, at a minimum, that it “has a substantial case for relief on the
merits.” Leiva-Perez v. Holder, 640 F.3d at 966. On appeal, the Ninth Circuit will apply
a deferential standard of review with respect to the Court’s finding that respondent had
waived the attorney-client privilege. See Burlington Northern Santa Fe Ry. Co. v. U.S.
District Court, 408 F.3d 1142, 1146 (9th Cir. 2005) (applying “clear error” standard of
review to district court’s finding that defendant had waived the attorney-client privilege
by failing to timely produce a privilege log). As the Court explained in its prior order,
respondent delayed for nearly a year before finally producing a privilege log in February
2016. Moreover, according to the NLRB, this privilege log was “sparse” and “devoid of
meaningful detail” and respondent delayed yet another month before producing a more
detailed privilege log. The Ninth Circuit has held that, absent “mitigating circumstance,”
a delay of only five months is sufficient to “immunize [a] district court’s [waiver] ruling
from reversal.” Id. at 1149. Furthermore, during a hearing the Court asked counsel for
respondent why she had failed to timely produce a privilege log and why she had not
requested an extension from the Court in which to submit a privilege log. As the Court
explained in its April 25 Order, counsel’s responses were “wholly inadequate.” Dkt. 44,
at 10. Accordingly, for these reasons, and particularly given that the Ninth Circuit will
apply a deferential standard of review to the Court’s ruling, the Court finds that
respondent has failed to demonstrate a likelihood of success on appeal.
In addition, the Court previously noted that “the NLRB has suffered prejudice as a
result of respondent’s delay in timely producing a privilege log.” Id., at 11. Specifically,
the underlying administrative hearing in this case has now been underway for two
months. However, as a result of respondent’s delays, the NLRB has been forced to
proceed without many relevant documents. Granting respondent’s requested stay would
only exacerbate this prejudice to the NLRB.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

Case No.

2:16-cv-02110-CAS(AFMx)

May 10, 2016

Title

NATIONAL LABOR RELATIONS BOARD V. SANDERS CLARK &
CO., INC.

Accordingly, the Court finds that respondent has failed to make the requisite
showing to warrant a stay of the Court’s April 25 Order. Respondent’s ex parte
application is, therefore, DENIED.
IT IS SO ORDERED.
00
Initials of Preparer

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:

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CMJ

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