KEHOE v. HARD ROCK HOTEL & CASINO ATLANTIC CITY

                   UNITED STATES DISTRICT COURT                          
                      DISTRICT OF NEW JERSEY                             
                         CAMDEN VICINAGE                                 


JOSEPH M. KEHOE,                                                         

                      Plaintiff,                                         

          v.                                                             
                                     Civil No. 24-490 (RMB/MJS)          
HARD ROCK HOTEL & CASINO                                                 
ATLANTIC CITY, et al.,                                                   

                   Defendants.                                           



                      OPINION AND ORDER                                  

    This matter is before the Court on the motion by plaintiff Joseph M. Kehoe (“Plaintiff”) 
to quash a subpoena duces tecum served on IATSE Local 917 (the “Union”).1 ECF No. 16. 
Defendants Hard Rock Hotel & Casino Atlantic City (“Hard Rock”), Christopher Shuler, Bill 
Barnes, and James Martin (“Defendants”) oppose the motion to quash their subpoena to the 
Union.2 ECF No. 17. Pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 
78.1(b), the Court decides this motion without oral argument. For the reasons that follow, 
Plaintiff’s motion is DENIED.                                             

1  The subpoena expressly seeks the Union’s “entire files, documents, correspondence, email and 
any other material in the possession of [the Union] related to [Plaintiff].” ECF No. 17-1 at 24. 
Here, and throughout this Order, the Court cites to the imprinted ECF header where the documents 
are not paginated.                                                        

2  The Defendants’ response in opposition is brought on behalf of defendant Hard Rock but the 
Court observes that there are also three individual defendants in this case and all Defendants are 
represented by the same counsel.                                          
I.  Background                                                           
    Plaintiff filed this suit on January 23, 2024, alleging disability discrimination against 
Defendants under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., 
and the New Jersey Law Against Discrimination (“NJLAD”), N.J. STAT. ANN. 10:5-1 et seq. 

ECF No. 1. On February 2, 2024, the Court granted Plaintiff’s application to proceed in forma 
pauperis pursuant to 28 U.S.C. § 1915 and dismissed some, but not all, of Plaintiff’s claims.3 
ECF No. 4. On June 19, 2024, Defendants filed an answer denying any liability under any of 
the surviving claims in the complaint. ECF No. 9.                         
II.  Legal Standard                                                      
    Rule 45 requires, in relevant part, that a court “quash or modify a subpoena that: . . . 
(iii) requires disclosure of privileged or other protected matter, if no exception or waiver 
applies; or (iv) subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A). “An undue 
burden  exists  when  the  subpoena is  ‘unreasonable  or  oppressive.’”  In  re  Lazaridis, 865 
F.Supp.2d 521, 524 (D.N.J. 2011) (quoting Schmulovich v. 1161 Rt. 9 LLC, Civ. No. 07-597, 

2007  WL  2362598,  at  *4  (D.N.J.  Aug.  15,  2007)).  “There  is  no  ‘strict  definition  of 
unreasonable or oppressive’ and courts have used several factors in determining a subpoena’s 
reasonableness: (1) the party’s need for the production; (2) the nature and importance of the 
litigation; (3) the relevance of the material; (4) the breadth of the request for production; (5) 
the time period covered by the request; (6) the particularity with which the documents are 
described; and (7) the burden imposed on the subpoenaed party.” Id. “On a motion to quash, it 


3  The Court permitted the following claims to proceed: Discrimination (Count 2), retaliation 
(Count 4), disparate treatment discrimination (Count 8), and harassment (Count 9). The Court also 
construed Count 1 as a breach of contract claim and allowed it, too, to proceed past the screening 
stage. ECF Nos. 3 and 4.                                                  
is  the  moving  party’s  burden  to  demonstrate  that  the  subpoena  is  burdensome  and 
unreasonable.” Id.                                                        
III.  Discussion                                                          
    Plaintiff moves to quash the subpoena duces tecum served on the Union because the 
subpoena allegedly seeks privileged communications between the Union and Plaintiff.4 ECF 

No. 16. Plaintiff asserts no published case in the Third Circuit5 addresses the existence of an 
employee-union privilege. ECF No. 18 at 4. Plaintiff argues the absence of case law rejecting 
an employee-union privilege supports extension of the attorney-client privilege to protect 
communications between Plaintiff and his Union representatives in which Plaintiff sought 
advice concerning anticipated disciplinary action at work. Id. at 5. Plaintiff argues if unions 
must disclose member files, unions “would not be able to function to safeguard the rights of 
the employees that they represent.” ECF No. 16 at 2. Plaintiff accordingly moves to quash the 
subpoena “in regards to privileged communications.” Id.                   
    Defendants contends there is no employee-union privilege and cite several published 

and unpublished federal decisions in support. ECF No. 17 at 3. While Plaintiff argues these 
cases discuss general principles inapplicable to this case, ECF No. 18 at 4, a decision from this 


4  In his opening brief, Plaintiff also argued that the subpoena should be quashed in part because 
his Union file allegedly contains personal medical information. ECF No. 16 at 2. Plaintiff conceded 
this argument in his reply brief. ECF No. 18 at 3.                        

5  Neither Plaintiff nor Defendant has argued whether federal common law or state law governs 
this application of privilege. However, because Plaintiff’s surviving claims arise under both federal 
law, specifically the ADA, 42 U.S.C. § 12101 et seq., and state law, specifically the NJLAD, 
N.J.S.A. 10:5-1 et seq., ECF No. 3 at 2, federal privilege law applies. See Pearson v. Miller, 211 
F.3d 57, 66 (3d Cir. 2000) (“[F]or the resolution of the present discovery dispute, which concerns 
material relevant to both federal and state claims, [Federal] Rule [of Evidence] 501 directs us to 
apply federal privilege law.”); J.M. v. Summit Bd. of Educ., Civ. No. 23-1633, 2025 WL 215938, 
at *4 n. 5 (D.N.J. Jan. 16, 2025).                                        
Court observed “the Third Circuit has not recognized an employee-union privilege.” Chambers 
v. Waters Edge Convalescent Ctr., Civ. No. 18-14867, 2020 WL 13614906, at *2-3 (D.N.J. 
May 7, 2020). That decision surveyed federal case law nationwide and concluded “of the cases 
reviewed, more seem to reject the notion rather than accept it.” Id. While a published decision 

from nearly 14 years ago in the Northern District of Illinois did recognize such a privilege, 
Bell v. Village of Streamwood, 806 F.Supp.2d 1052, 1056 (N.D. Ill. 2011), Chambers observed 
“[n]ot only does Bell have no binding effect on this Court, but also countless courts have 
rejected Bell’s conclusion that an employee-union privilege exists.” 2020 WL 13614906 at *2. 
    While the Court acknowledges its authority under Rule 501 of the Federal Rules of 
Evidence “to define new privileges by interpreting ‘common law principles . . . in the light of 
reason and experience,’” Jaffee v. Redmond, 518 U.S. 1, 8 (1996), the Court declines to 
recognize  an  employee-union  privilege  at  this  time.  Bell  applied  such  a  privilege  after 
identifying an Illinois statute that codified an employee-union privilege. 806 F.Supp.2d at 
1055. No analogous statute appears to exist in New Jersey, and its courts have declined to 

extend the attorney-client privilege to protect communications between employees and their 
representative unions unless the union representative is a lawyer or a lawyer’s agent. Rawlings 
v. Police Dep’t of Jersey City, N.J., 627 A.2d 602, 609 (N.J. 1993). Given the absence of an 
analogous New Jersey statute, and the presence of case law from New Jersey’s highest court 
declining to protect communications between employees and their union representatives, the 
Court finds no basis to recognize an employee-union privilege at this time. 
    IT IS, therefore, on this 24th day of April 2025,                    
    ORDERED that Plaintiff’s motion to quash the subpoena duces tecum served on the 
Union is DENIED.                                                          
s/ Matthew J. Skahill                       
MATTHEW J. SKAHILL                          
United States Magistrate Judge