See, e.g., Docket No. 27 at 12. The fact that the subpoena seeks voluminous documents, however, is not sufficient to establish an undue burden in this context. Carolina Food Processors, 81 F.3d at 513-14; N.L.R.B. v. G.H.R. Energy Corp., 707 F.2d 110, 114 (5th Cir. 1982). Respondent has failed to show that complying with the subpoena would disrupt its normal business operations and, contrary to such a showing, the productions made to date that Respondent touts bely any such assertion of business disruption.
We review a district court's order enforcing an NLRB subpoena for abuse of discretion. NLRB v. G.H.R. Energy Corp., 707 F.2d 110, 113 (5th Cir. 1982). III.
Indeed, Mazer Chemicals expressly based its recommendation of dismissal in part on insufficiency of the evidence, suggesting that some investigation of the charge had occurred beforehand. Cf. NLRB v. G.H.R. Energy Corp., 707 F.2d 110, 114 (5th Cir. 1982) (per curiam) ("The mere fact that compliance with the subpoenas may require the production of thousands of documents is also insufficient to establish burdensomeness."). Lear also argues that "the potential for contradictory fact findings and conclusions of law that could result from dual-track investigations by OSHA and the NLRB is obvious" and "promises to create chaos in future litigation."
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.
I concur in the Court's opinion and write separately to consider the standard of review applicable to appellate consideration of a district court's determination of the relevance of information sought by an administrative subpoena. Preliminarily I note that with respect to review of the ultimate decision of a district court whether to enforce an administrative subpoena, it is generally said that the standard for appellate review is abuse of discretion. See, e.g., Ratliff v. Davis Polk Wardwell 354 F.3d 165, 168 (2d Cir. 2003); FTC v. GlaxoSmithKline, 294 F.3d 141, 146 (D.C. Cir. 2002); FDIC v. Wentz, 55 F.3d 905, 908 (3d Cir. 1995); NLRB v. Carolina Food Processors, 81 F.3d 507, 510 (4th Cir. 1996) (quoting NLRB v. G.H.R. Energy Corp., 707 F.2d 110, 113 (5th Cir. 1982)). A Sixth Circuit opinion has said that the appellate task is "to weigh the likely relevance of the requested material to the investigation against the burden to Ford of producing the material."
Section 11 of the NLRA grants to the Board and its agents broad investigatory authority, including the power to subpoena any evidence "that relates to any matter under investigation or in question." 29 U.S.C. § 161(1); see also NLRB v. Interstate Material Corp., 930 F.2d 4, 6 (7th Cir. 1991) (describing the Board's broad investigatory powers); NLRB v. Steinerfilm, Inc., 702 F.2d 14, 15 (1st Cir. 1983) (same); NLRB v. G.H.R. Energy Corp., 707 F.2d 110, 113 (5th Cir. 1982) (same). This broad subpoena power enables the Board "to get information from those who best can give it and who are most interested in not doing so."
In any event, Judge Waxse correctly concluded that the subject matter of the investigation is whether J Cubed and MHCP are successors of MHAC. The subpoenas seek documents and information concerning the business structure, assets and customers of J Cubed and MHCP — information vital for the NLRB to determine whether J Cubed and MHCP are legal successors to MHAC. See NLRB v. G.H.R. Energy Corp., 707 F.2d 110, 113-14 (5th Cir. 1982) (to determine whether companies constitute single employer, one must look at interrelation of operations, which involves "fairly wide-ranging investigation into affairs" of companies). The Court finds that the subpoenas do not request evidence which is unrelated to the subject matter of the investigation.
B. A subpoena enforcement order is reviewed for abuse of discretion. E.g., N.L.R.B. v. G.H.R. Energy Corp., 707 F.2d 110, 113 (5th Cir. 1982). "[I]t is settled that the requirements for judicial enforcement of an administrative subpoena are minimal."
The district court should enforce the Board's subpoena if the information sought is relevant to an investigation being conducted by the Board and is described with sufficient particularity. See NLRB v. G.H.R. Energy Corp., 707 F.2d 110, 113 (5th Cir. 1982); accord EEOC v. City of Norfolk Police Dep't, 45 F.3d 80, 82 (4th Cir. 1995) (noting that district court's review of administrative subpoena is limited to determining whether the agency is authorized to conduct the investigation, whether the agency "has complied with statutory requirements of due process," and whether the information sought is relevant). We, in turn, review the district court's decision to enforce the subpoena for abuse of discretion; we may reverse the district court's enforcement order "only in the most extraordinary of circumstances." G.H.R. Energy Corp., 707 F.2d at 113 (footnote omitted).
This approach comports with the standard employed by the majority of the circuits. See, e.g., FDIC v. Wentz, 55 F.3d 905, 908 (3d Cir. 1995); In re McVane, 44 F.3d 1127, 1135 (2d Cir. 1995); Reich v. National Eng'g Contracting Co., 13 F.3d 93, 98 (4th Cir. 1993); Linde Thomson Langworthy Kohn Van Dyke, P.C. v. RTC, 5 F.3d 1508, 1516 (D.C. Cir. 1993) (citing FTC v. Lonning, 539 F.2d 202, 210 n. 14 (D.C. Cir. 1976)); United States v. Medlin, 986 F.2d 463, 466 (11th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 347 (1993); NLRB v. G.H.R. Energy Corp., 707 F.2d 110, 113 (5th Cir. 1982); EEOC v. Packard Elec. Div., 569 F.2d 315, 317-18 (5th Cir. 1978). But see Reich v. Montana Sulphur Chem. Co., 32 F.3d 440, 443 (9th Cir. 1994) ("We review de novo the district court's decision regarding enforcement of an agency subpoena.") (citing EPA v. Alyeska Pipeline Serv. Co., 836 F.2d 443, 445-46 (9th Cir. 1988)), cert. denied, ___ U.S. ___, 115 S.Ct. 1355, (1995).