CNN America, Inc.

National Labor Relations Board - Board Decisions

May 9, 2008

352 N.L.R.B. 448 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 64
448
CNN America, Inc. and Team Video Services, LLC,
Joint Employers and National Association of
Broadcast Employees & Technicians, Commu-
nication Workers of America, Local 31, AFL–
CIO and National Association of Broadcast Em-
ployees & Technicians, Communication Work-
ers of America, Local 11, AFL–CIO. Cases 5–
CA–31828 and 5–CA–33125 (formerly 2–CA–
36129)
May 9, 2008
ORDER GRANTING IN PART THE GENERAL
COUNSEL’S MOTION TO BIFURCATE AND
SUSTAINING THE JUDGE’S RULING ON
PRODUCTION OF DOCUMENTS FOR IN CAMERA
INSPECTION1
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On April 17, 2008, the General Counsel filed with the
Board a motion to bifurcate consideration of certain is-
sues presented in Respondent CNN America, Inc.’s (the
Respondent or CNN) request for special permission to
appeal the denial of its petitions to revoke subpoenas
(Special Appeal), which is currently pending before the
Board. The General Counsel’s motion requests that the
Board sustain Administrative Law Judge Arthur Am-
chan’s rulings that (1) the Respondent must produce the
documents listed on the Respondent’s second revised
privilege and redaction logs for in camera review by the
administrative law judge, and (2) the General Counsel’s
Subpoena Duces Tecum be enforced regarding the pro-
duction of the Respondent’s payroll records. On April
28, 2008, CNN filed an opposition brief and request to
strike the General Counsel’s motion.
After careful consideration, we grant the General
Counsel’s motion to bifurcate consideration of the issue
concerning the judge’s in camera inspection of the
documents listed on the Respondent’s privilege and re-
daction logs, and we order the Respondent to produce
those documents to the judge for in camera inspection.
However, we deny the General Counsel’s motion to bi-
furcate consideration of the issue concerning the Re-
spondent’s payroll records requested in the subpoena.
We also deny CNN’s request to strike the General Coun-
sel’s motion.

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
I. IN CAMERA INSPECTION OF DOCUMENTS
Background
On December 3, 2007, the judge denied the Respon-
dent’s motion to revoke the subpoena, ruling that the
subpoena is enforceable except to the extent that he spe-
cifically rules otherwise or defers making a decision on
particular issues. Thereafter, the Respondent filed a re-
quest for special permission to appeal this ruling to the
Board, which is currently pending before the Board.
In its Special Appeal, the Respondent argues, inter
alia, that many of the subpoenaed documents are gener-
ally protected from disclosure by the attorney-client and
attorney work-product privileges. Despite the pendency
of the Appeal, the judge has permitted the Respondent to
assert, during the ongoing hearing, that specific docu-
ments are protected by the attorney-client and/or attorney
work-product privileges. On February 29, 2008, CNN
produced to the General Counsel and the judge its “Sec-
ond Revised Privilege and Redaction Logs” describing
documents that it is withholding or redacting based on
the assertion of attorney-client and/or work-product
privileges.
On March 10, 2008, the judge ordered CNN to pro-
duce to him, in unredacted form for in camera inspection,
all documents dated between January 1, 2003, and Feb-
ruary 29, 2004, listed on the privilege and redaction logs
(“March 10 ruling”).2 CNN refused to comply, arguing
on the record that the judge was the trier of fact and
therefore should not review the allegedly privileged
documents.3 CNN also argued on the record that a Fed-
eral district court, not an administrative law judge, must
determine privilege issues, citing NLRB v. Detroit News-
papers, 185 F.3d 602 (6th Cir. 1999).
Discussion
We find that the Respondent has not demonstrated in
its Special Appeal how any of the subpoenaed documents
are protected from disclosure by the attorney-client privi-
lege. The party asserting a privilege bears the burden of

2 CNN has not requested special permission from the Board to ap-
peal the judge’s March 10 ruling.
3 In response to CNN’s argument, the General Counsel proposed as
an alternative that another administrative law judge review in camera
the documents listed on the privilege logs. CNN rejected this proposal.
CNN’s agreement to this proposal would constitute compliance with
this Order.
CNN AMERICA, INC. 449
proving that it is applicable.4 Moreover, the fact that a
document may be contained in the files of a company’s
in-house counsel does not establish privilege. “It is
communication between attorney and client related to the
giving of legal advice that is privileged—not simply
documents that pass between them. Thus, nonprivileged
documents—e.g., ordinary corporate records such as
payroll or personnel records—cannot be swept within
the privilege simply by being transmitted from client to
attorney or vice versa.”5 CNN’s argument that one sub-
poena paragraph seeks information sent or received by
individuals including CNN in-house counsel is insuffi-
cient to meet its burden.
However, the judge has continued to consider the Re-
spondent’s claims that certain documents are privileged,
and has offered the Respondent the opportunity to pre-
sent certain documents for in camera inspection. Thus,
the issue before us here is whether the judge appropri-
ately exercised his discretion in ordering an in camera
inspection of the documents on CNN’s privilege and
redaction logs. We find that he has. In camera inspec-
tions are well-established procedures in the Federal
courts, U.S. v. Smith, 123 F.3d 140, 151–152 (3d Cir.
1997), and have been approved by the Board, Brink’s
Inc., 281 NLRB 468 (1986).6 Without an in camera in-
spection of allegedly privileged documents, the party
claiming privilege would be able to shield any document
from disclosure by merely including it in a privilege log.
In addition, some courts appear to require the exhaustion
of administrative remedies before granting enforcement
of a subpoena.7 Thus, we find that the in camera exami-
nation of documents to evaluate claims of privilege is a
proper exercise of the administrative law judge’s author-
ity.
II. PAYROLL RECORDS
Background
The General Counsel also requests bifurcation and ex-
pedited consideration of the judge’s denial of the Re-
spondent’s petition to revoke the subpoena with regard to

4 See, e.g., Dole v. Milonas, 889 F.2d 885, 889 (9th Cir. 1989).
5 Patrick Cudahy, Inc., 288 NLRB 968, 971 fn. 13 (1988) (emphasis
added).
6 See also Kaiser Aluminum & Chemical Corp., 339 NLRB 829,
829 (2003) (to the extent that subpoenaed documents were claimed as
privileged attorney work product, the Board authorized the judge “to
review those documents in camera to determine whether they are also
exempt from disclosure”). Therefore, contrary to the Respondent’s
argument, we do not view the Sixth Circuit's holding in Detroit News-
papers, supra, as supporting the general proposition that an administra-
tive law judge, as the trier of fact, cannot resolve privilege issues.
7 See, e.g., Maurice v. NLRB, 691 F.2d 182, 183 (4th Cir. 1982);
NLRB v. Duval Jewelry Co. of Miami, 243 F.2d 427, 430 (5th Cir.
1957), reversed on other grounds 357 U.S. 1 (1958).
CNN’s payroll records. The General Counsel argues that
the requested payroll records are necessary to analyze the
complex allegations regarding successor or joint em-
ployer status, unlawful withdrawal of recognition, unlaw-
ful unilateral changes, unlawfully motivated cancellation
of news-gathering agreements with TVS, and discrimina-
tion based on union activity and membership.
CNN did not specifically address the subpoena’s re-
quest for payroll records in its pending Special Appeal,
other than through its general arguments that most of the
subpoena should be revoked. However, it is apparent
from a review of the transcript pages cited by the General
Counsel (and attached to his April 17 memo), that the
General Counsel has sought CNN’s payroll records in
electronic form since the beginning of the investigation
in this case, and CNN has continued to assert that its pay-
roll records do not exist in an electronic form that can be
produced without undue burden and expense, if at all.
Discussion
Although we agree with the General Counsel that the
payroll records are relevant to the allegations in the com-
plaint, the record reveals that the parties are continuing to
debate before the judge whether payroll records exist in
the electronic format requested by the subpoena, and that
the judge does not appear to have made a definitive rul-
ing with respect to the production of these records. Thus,
the specific issue regarding payroll records is not ripe for
the Board’s review at this stage in the proceeding.
Moreover, the parties’ arguments on the record indi-
cate that the primary dispute over the payroll records is
not their relevance, but rather the General Counsel’s re-
quest for the records in electronic form. As noted above,
CNN contends that the payroll records do not exist as a
separate program that can be readily produced, but rather
are imbedded throughout CNN’s computer system.
Thus, these contentions relate to the broader issue of the
burdensomeness of producing certain types of electronic
information that have been raised by the Respondent in
its Special Appeal. For these reasons, we deny the Gen-
eral Counsel’s motion to bifurcate consideration of the
payroll records issue at this time.
ORDER
It is ordered that the General Counsel’s motion to bi-
furcate consideration of issues regarding the Respon-
dent’s assertion that certain of its documents are pro-
tected from disclosure by the attorney-client privilege is
granted, and the Respondent’s request to strike the Gen-
eral Counsel’s motion is denied. It is further ordered that
the Respondent’s request for permission to file a special
DECISION OF THE NATIONAL LABOR RELATIONS BOARD450
appeal of the administrative law judge’s denial of its pe-
tition to revoke the General Counsel’s subpoena concern-
ing those documents is granted, and that the Respon-
dent’s special appeal of the judge’s ruling is denied. It is
further ordered that this proceeding is remanded to Ad-
ministrative Law Judge Arthur Amchan for further action
consistent with this decision.