Among administrative law judges, magistrate judges, and Article III judges involved in administrative issues, who can make privilege calls?
In NLRB v. NPC International, Inc., No. 13-0010, 2017 U.S. Dist. LEXIS 23138 (W.D. Tenn. Feb. 16, 2017), the United States magistrate judge ordered defendant to produce documents pursuant to an NLRB subpoena. The Article III judge followed other decisions in holding that magistrate judges' order are "dispositive," because they "dispose of the entire matter at issue." Id. at *7. The court therefore construed the magistrate judge's decision "as a recommendation which will be reviewed de novo and [to which the court] will apply the clearly erroneous or contrary to law standard." Id. at *8. The judge then turned to the difference between its power under Article III and the NLRB's administrative law judge's power. While criticizing defendant for failing to prepare a privilege log for the administrative law judge, the court acknowledged that it rather than the ALJ had "authority to make an ultimate determination on these issues" – and then overturned the magistrate judge's recommendation that the defendant waived its protections by not preparing a log. Id. at *20.
In those murky administrative areas where administrative, magistrate, and Article III judges exercise their power, corporations and their lawyers should keep track of which judge can decide which privilege issues.