CNN America, Inc.

National Labor Relations Board - Board Decisions

Mar 20, 2008

352 N.L.R.B. 265 (N.L.R.B. 2008)

CNN AMERICA, INC.
352 NLRB No. 40
265
CNN America, Inc. and Team Video Services, LLC,
Joint Employers and National Association of
Broadcast Employees & Technicians, Commu-
nications Workers of America, Local 31, AFL–
CIO and National Association of Broadcast Em-
ployees & Technicians, Communications Work-
ers of America, Local 11, AFL–CIO. Cases 5–
CA–31828 and 5–CA–33125 (Formerly 2–CA–
36129)
March 20, 2008
DECISION AND ORDER REMANDING
PROCEEDING1
BY MEMBERS LIEBMAN AND SCHAUMBER
A hearing in the above proceeding opened before Ad-
ministrative Law Judge Arthur Amchan of the National
Labor Relations Board on November 7, 2007.2 On De-
cember 5–6, 2007, witness Cynthia Patrick, executive
vice president of news division operations for CNN
America, Inc. (CNN or the Respondent), was called by
the General Counsel as an adverse witness. In response
to the General Counsel’s questioning, Patrick testified
that she had reviewed thousands of documents with the
Respondent’s attorneys several weeks before the hearing,
for the purpose of identifying for counsel which docu-
ments contained confidential business-related informa-
tion, in connection with CNN’s voluntary production of
documents to the General Counsel. CNN’s counsel
stated for the record that all of the documents that Patrick
described were previously provided to the General Coun-
sel.
The General Counsel requested that the judge require
the Respondent to produce any documents reviewed by
Patrick, pursuant to Federal Rule of Evidence 612. Rule
612 provides, in relevant part:
[I]f a witness uses a writing to refresh memory
for the purpose of testifying, either—
(1) while testifying, or
(2) before testifying, if the court in its discretion
determines it is necessary in the interests of justice,

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,
Members Liebman and Schaumber 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.
2 The hearing in this case is currently in progress and is expected to
continue for the next several months.
An adverse party is entitled to have the writing pro-
duced at the hearing, to inspect it, to cross-examine the
witness thereon, and to introduce in evidence those por-
tions which relate to the testimony of the witness. If it
is claimed that the writing contains matters not related
to the subject matter of the testimony the court shall
examine the writing in camera, excise any portions not
so related, and order delivery of the remainder to the
party entitled thereto.
Rule 612’s advisory committee notes, in relevant part, fur-
ther explain:
The purpose of the phrase “for the purpose of testify-
ing” is to safeguard against using the rule as a pretext
for wholesale exploration of an opposing party’s files
and to insure that access is limited only to those writ-
ings which may fairly be said in fact to have an impact
upon the testimony of the witness. . . . The Committee
considered that permitting an adverse party to require
the production of writings used before testifying could
result in fishing expeditions among a multitude of pa-
pers which a witness may have used in preparing for
trial. . . . The Committee intends that nothing in the
Rule be construed as barring the assertion of a privilege
with respect to writings used by a witness to refresh his
memory. [H. R. No. 93-650.]
During the course of several on-the-record discussions
with the parties’ counsel between December 5 and 11,
2007, the judge ruled that any documents reviewed by
any witness within 6 months prior to the hearing must be
turned over to opposing counsel before the witness’ tes-
timony. The judge reasoned that because the events in
this case took place several years ago, he could not intel-
ligently determine whether the witness is relying on the
documents, and the witness might not even know what
documents refreshed his or her recollection and what
documents did not. Therefore, the judge stated that he
would make the assumption with all witnesses that if the
witness had looked at documents during the last 6
months (since the issuance of the complaint in April
2007), the documents may have refreshed the witness’
recollection and they should be produced. In this regard,
the judge stated that once the complaint was issued, sub-
sequent review of documents falls into the category of
preparation for testimony because the parties know that
the hearing is coming. The judge also observed that Pat-
rick’s testimony “indicates she remembers very little
about the events in 2003 without some review of docu-
mentation.” Citing Rule 612’s “discretion” language, the
judge effectively concluded that he could dispense with
the “to refresh memory for the purpose of testifying”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD266
language of Rule 612 and order disclosure of documents.
He stated, “I’m looking at the language of 612. It seems
to me I have discretion as to whether to have them [the
documents] turned over. I guess I will exercise my dis-
cretion to have them turned over.”
The Respondent objected to the judge’s ruling, arguing
that the General Counsel failed to lay a proper founda-
tion as required by Rule 612, and offered to introduce
legal authority in support of its position. The judge over-
ruled the Respondent’s objections and ordered the Re-
spondent to produce the requested documents, and the
Respondent complied.
On December 18, 2007, the Respondent filed a sup-
plemental3 request for special permission to appeal from
the judge’s ruling regarding production of documents
and a memorandum in support thereof, contending that
the judge improperly applied Rule 612. The Respondent
argues that, in order to require production of a document,
Rule 612 requires a witness to have relied upon the
document to refresh recollection, and the document must
have had an impact on the witness’ testimony. The Re-
spondent also argues that by failing to require the Gen-
eral Counsel to make such a showing and instead adopt-
ing a blanket presumption that any documents reviewed
in the past 6 months necessarily refreshed witnesses’
recollection, the judge’s ruling created the result that the
advisory committee stated Rule 612 is intended to
avoid—a wholesale exploration of an opposing party’s
files. The General Counsel and Charging Party NABET4
Local 31 filed opposition briefs, arguing that the judge
appropriately exercised his discretion in applying Rule
612, and the Respondent filed a reply.
Having duly considered the matter, we have decided to
grant the Respondent’s appeal and, on the merits, reverse
the judge’s ruling regarding the production of documents
under Federal Rule of Evidence 612.
We find that the judge’s ruling is inconsistent with
both the letter and the spirit of Rule 612.5 For Rule 612
to apply, the document(s) at issue must have been re-
viewed for the purpose of refreshing a witness’ recollec-
tion. “[E]ven where a witness reviewed a writing before
or while testifying, if the witness did not rely on the writ-

3 The Respondent has also filed a request for special permission to
appeal the judge’s ruling concerning a subpoena issued by the Board.
This special appeal will be addressed in a separate order.
4 National Association of Broadcast Employees & Technicians,
Communications Workers of America, Local 31, AFL–CIO.
5 Sec. 10(b) of the Act and Sec. 102.39 of the Board’s Rules and
Regulations state that a Board hearing “shall, so far as practicable, be
conducted in accordance with the rules of evidence applicable in the
district courts of the United States.”
ing to refresh memory, Rule 612 confers no rights on the
adverse party.”6
Further, the judge appears to have misinterpreted Rule
612(2)’s reference to “discretion.” The Rule’s unambi-
guous language and the case law interpreting it demon-
strate that the phrase “in its discretion” refers to a court’s
discretion not to order disclosure of documents even if
they were used to refresh recollection before testimony.7
There is no support for the broader interpretation that this
phrase provides discretion to dispense with the “to re-
fresh memory for the purpose of testifying” language of
Rule 612 and order disclosure of documents without first
requiring the requesting party to establish these founda-
tional requirements through testimony. Therefore, the
judge’s ruling that witnesses’ recollection was necessar-
ily refreshed by any review of documents within the pre-
ceding 6 months, without first requiring the requesting
party to establish that particular documents refreshed a
witness’ memory, was inconsistent with the requirements
of Rule 612.
In addition to Rule 612’s requirement regarding re-
freshing a witness’ memory, the Rule requires that such
refreshing was undertaken “for the purpose of testify-
ing.” As the advisory committee notes explain, the writ-
ing(s) must have had an impact on the witness’ testi-
mony. In other words, merely looking at or reviewing a
document during the course of preparation for trial does
not automatically trigger Rule 612.8 The advisory com-
mittee stated that, by limiting disclosable documents to
those that have an impact on the witness’ testimony, the
committee intended to safeguard against “fishing expedi-
tions” and “wholesale exploration” of the many files and
papers that a witness may have used in preparation for
trial. We agree with the Respondent that the judge’s
ruling results in these exact scenarios against which the
advisory committee expressly cautioned.

6 U.S. v. Sheffield, 55 F.3d 341, 343 (8th Cir. 1995) (citing Wright &
Gold, Federal Practice and Procedure § 6185, p. 465 (1993)).
7 See, e.g., Wycoff Steel, 303 NLRB 517, 526 (1991) (interests of
justice did not require production of notes used by witness to refresh
recollection prior to testimony); Cosden Oil v. Karl O. Helm Aktienge-
sellschaft, 736 F.2d 1064, 1077 (5th Cir. 1984) (district court did not
err in exercising its discretion to determine that interests of justice did
not require production of documents used before testimony to refresh
recollection); Smith & Wesson v. U.S., 782 F.2d 1074, 1083 (1st Cir.
1986) (same).
8 Medtronic Xomed, Inc. v. Gyrus ENT LLC, 2006 WL 786425, *6
(M.D. Fla. 2006) (citing Suss v. MSX International Engineering Ser-
vices, Inc., 212 F.R.D. 159, 165 (S.D.N.Y. 2002)); In re Comair Disas-
ter Litig., 100 F.R.D. 350, 353 (D. Ky. 1983).
CNN AMERICA, INC. 267
When viewed in the light of the advisory committee
notes to Rule 612 and case law interpreting the Rule, we
find that the judge has (1) given an overly broad applica-
tion to Rule 612; (2) ignored the Rule’s prerequisites that
require a witness’ review of documents to have been
used to refresh memory for the purpose of testifying, as
well as the Rule’s direction that discretion should be ex-
ercised to determine that production of the writing(s) is
necessary in the interests of justice; and (3) erred by
compelling production of documents in the absence of
evidence that they were used to refresh a witness’s mem-
ory for the purpose of testifying. Accordingly,
IT IS ORDERED that the Respondent’s request for spe-
cial permission to appeal the judge’s ruling is granted,
the administrative law judge’s ruling is vacated, and the
above proceeding is remanded to Administrative Law
Judge Arthur Amchan for further action consistent with
this Order.9

9 Accordingly, before ordering disclosure of documents pursuant to
Rule 612, the judge shall receive evidence and perform an analysis
under Rule 612 regarding whether particular documents were actually
used to refresh a witness’ recollection, and whether such refreshing was
“for the purpose of testifying.” Such evidence would include the iden-
tification of documents that a party claims were used to refresh recol-
lection before testifying, and the eliciting of testimony to prove such an
assertion, as well as evidence regarding the purpose for which the
documents were reviewed. As the Respondent has not requested a
specific remedy with respect to documents that have already been dis-
closed pursuant to the judge’s ruling, we apply this order prospectively
only, without prejudice to raising this issue in any exceptions to the
judge’s decision that he will issue following the conclusion of the hear-
ing.
Further, although the Respondent makes several references to privi-
leged documents in its memoranda, we find it unnecessary to conduct
an analysis of attorney-client privilege or attorney work product at this
time, in the absence of the identification of any particular documents
alleged to be protected from disclosure. Likewise, we find it unneces-
sary to address the Respondent’s discussion in its memoranda of the
judge’s in camera review of certain documents in the General Coun-
sel’s possession, in the absence of any request for special permission to
appeal the judge’s rulings that several of these documents were pro-
tected from disclosure by the attorney-client privilege and/or attorney
work product doctrine.