CNN America, Inc.

National Labor Relations Board - Board Decisions

Feb 13, 2009

353 N.L.R.B. 891 (N.L.R.B. 2009)

CNN AMERICA, INC.
353 NLRB No. 94
891
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)
February 13, 2009
ORDER1
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On September 24, 2007, in connection with the under-
lying unfair labor practice proceeding, the General Coun-
sel served a 243-paragraph subpoena duces tecum on
Respondent CNN America, Inc. (CNN), and Charging
Party NABET,2 Local 31 (the Union) served CNN with a
similar subpoena. Thereafter, an unfair labor practice
hearing opened before Administrative Law Judge Arthur
Amchan of the National Labor Relations Board on No-
vember 7, 2007. On December 3, 2007, the judge denied
the Respondent’s petition to revoke the subpoenas, ruling
that the subpoenas were enforceable except to the extent
that he specifically ruled otherwise or deferred making a
decision on particular issues. On December 7, 2007,
CNN filed a request for special permission to appeal this
ruling to the Board.3
On May 30, 2008, the Board issued a Decision and
Order granting CNN’s request for special permission to
appeal with regard to the issue of the burdensomeness of
producing certain types of information requested in elec-

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 Liebman and Member 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 National Association of Broadcast Employees & Technicians,
Communications Workers of America, Local 31, AFL–CIO.
3 On April 17, 2008, the General Counsel filed a motion to bifurcate
and expedite consideration of certain issues involved in the special
appeal. On May 9, 2008, the Board granted this motion to bifurcate
with respect to the documents that CNN asserted are protected from
disclosure by the attorney-client privilege and ordered CNN to produce
the disputed documents to the judge for in camera inspection. 352
NLRB 448. In addition, the Board denied the General Counsel’s mo-
tion to bifurcate consideration of the issue concerning the Respondent’s
payroll records requested in the subpoena because, inter alia, the con-
tentions concerning payroll records related to the broader issue of bur-
densomeness. Id. at 449.
tronic form.4 The Board found that “the documents re-
quested by the subpoenas are plainly related to the mat-
ters under litigation” and “that CNN makes a plausible
argument that production of certain types of information
in electronic form could be disruptive of its business op-
erations.”5 Thus, in the particular circumstances of this
complex proceeding, the Board found it “necessary to
strike a balance between the competing interests of the
parties in the relevancy and necessity of the information
and the potential cost and burdensomeness of its produc-
tion in the form requested.”6 Accordingly, the Board
remanded the issues raised in the appeal, except as noted,
to the chief administrative law judge for the assignment
of another administrative law judge to act as a special
master to resolve those issues.7 The Board further di-
rected that the special master should conduct this balanc-
ing test by applying the Federal Rules of Civil Procedure
and using The Sedona Principles8 as a framework for
analysis.9 The Board also instructed the special master to
make recommendations to the Board concerning issues
that cannot be resolved, if necessary.10 For the reasons
set forth below, we affirm the Special Master’s Report
and Recommendations.
I. SPECIAL MASTER’S REPORT AND RECOMMENDATIONS
On December 1, 2008, Administrative Law Judge Paul
Buxbaum issued the attached Special Master’s Report
and Recommendations,11 in which he recommended that
the Board accept the withdrawal by the General Counsel
and the Union of significant portions of the subpoenas
and find that CNN has failed to meet its burden of dem-
onstrating that any of the information being sought pur-
suant to the General Counsel’s revised subpoena would
be unduly burdensome to produce. On December 11,
2008, the Board issued a Notice to Show Cause why the
Board should not accept in its entirety the Special Mas-
ter’s Report and Recommendations. Charging Party
NABET, Local 11 filed “comments” urging the Board to
adopt the Special Master’s findings and recommenda-
tions, CNN filed a brief urging the Board to reject the
Special Master’s Report and Recommendations in its

4 352 NLRB 675, 676.
5 Id.
6 Id.
7 In addition, the Board found that CNN had failed to establish the
elements of a “reporter’s privilege,” assuming that such a privilege
applies, and denied this aspect of the special appeal on the merits. Id.
at 676–677.
8 The Sedona Principles: Best Practices, Recommendations & Prin-
ciples for Addressing Electronic Document Production, Second Edition
(The Sedona Conference Working Group Series, 2007).
9 352 NLRB at 676.
10 Id.
11 JDR–1–08.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD892
entirety, and the General Counsel and the Union filed
reply briefs in opposition to CNN’s brief.
Pursuant to the Board’s instructions, Judge Buxbaum
assisted the parties in trying to resolve the remaining
subpoena issues raised in CNN’s special appeal. As a
result of Judge Buxbaum’s efforts, the General Counsel
withdrew all of his outstanding subpoena requests except
for portions of four paragraphs and now seeks only those
documents identified in CNN’s second revised privilege
and redaction logs that fall within paragraphs 26, 36, 40,
and 43 of the General Counsel’s subpoena.12 Similarly,
the Union withdrew all of its subpoena requests except to
the extent that they overlap with the General Counsel’s
revised subpoena.13 Consequently, the universe of
documents requested in the subpoenas has been signifi-
cantly reduced, and all of the remaining documents are
subject to the Board’s May 9, 2008 Order directing CNN
to produce the disputed documents for in camera inspec-
tion by Judge Amchan (see fn. 3, supra).
Judge Buxbaum noted in his report that the Board has
already ruled that the remaining subpoenaed documents
are relevant, that they are not restricted from production
by any reporter’s privilege that may apply, and that they
are subject to the Board’s Order that CNN produce them
for in camera inspection. Therefore, Judge Buxbaum
concluded that his mandate from the Board did not in-
clude resolution of these already-decided issues, and he
limited his analysis to assessing the degree to which
compliance with the revised subpoenas would impose an
undue burden on CNN.14
In finding that compliance would not impose an undue
burden on CNN, Judge Buxbaum relied heavily on the
fact that CNN necessarily had to “identify, locate, exam-
ine, evaluate, and describe each and every item that was
selected for inclusion on [its privilege and redaction
logs].”15 In addition, he rejected CNN’s position that he
should address the enforceability of the subpoenas as a
whole, rather than addressing only the portions that re-
mained at issue. Judge Buxbaum found that conducting
a burdensomeness analysis relating to the now-
withdrawn 239 paragraphs of the subpoenas would be
“contrary to any notions of administrative efficiency,
common sense, and, most importantly, the terms of my
mandate and the governing legal authority.”16

12 Special Master’s Report and Recommendations, p. 3. Although
the parties had reached agreement in principle to dispose of all of the
issues raised in CNN’s special appeal, they were unable to reduce this
agreement to final written form. CNN ultimately supplied a significant
number of documents in the course of this litigation.
13 Id.
14 Id. at 4.
15 Id. at 9.
16 Id. at 5.
Analyzing the significantly revised subpoenas under
the factors discussed in The Sedona Principles and in
Federal Rule of Civil Procedure 26(b)(2)(C), Judge Bux-
baum determined that these factors favor the General
Counsel’s position.17 He found, inter alia, that the in-
formation sought in the revised subpoenas relates di-
rectly to the core allegations of the complaint and is
highly important to the litigation. He considered the re-
quested documents, which were created during the time
period relevant to the unfair labor practice proceeding, to
have greater probative value than contradictory testi-
mony on the same topics. In addition, he found that the
large amount of money in controversy justifies the de-
mand for information, considering the possibility that the
Board could order reinstatement and backpay for numer-
ous employees, as well as a resumption of collective-
bargaining relationships. With regard to an assessment
of the parties’ resources, Judge Buxbaum found that this
factor of the analysis “goes to the heart of the matter as it
would be an abuse of the subpoena process to require a
party to impoverish itself in order to carry out its respon-
sibilities as a respondent in this litigation.”18 However,
the judge found a complete absence of proof on this
point, in light of CNN’s failure to address the cost of
complying with the significantly revised subpoenas,
which now request only documents that CNN has previ-
ously indexed.
The judge further found that with one exception, CNN
failed to provide any specific objection to the production
of electronically stored information based on the techno-
logical feasibility of producing such information. CNN
did, however, express concern that the General Counsel
did not specifically abandon his demand for information
stored electronically on backup tapes that are used for
disaster recovery purposes. Notwithstanding his finding
that CNN had articulated legitimate concerns about the
General Counsel’s failure to specifically abandon this
request, Judge Buxbaum concluded that the General
Counsel’s revised position “constitutes an implicit with-
drawal of any demand for material on backup tapes.”19
Judge Buxbaum further stated that although CNN did not
raise any issue regarding the General Counsel’s demand
for production of metadata, he would consider this issue

17 Id. at 10–15. The judge stated that he would apply the balancing
test in Fed. R. Civ. P. 26(b)(2)(C), which provides that the adjudicator
must limit requests for discovery where “the burden or expense of the
proposed discovery outweighs its likely benefit, considering the needs
of the case, the amount in controversy, the parties’ resources, the im-
portance of the issues at stake in the action, and the importance of the
discovery in resolving the issues. Fed.R.Civ.P. 26(b)(2)(C)(iii).” Id. at
10.
18 Id. at 11.
19 Id. at 13.
CNN AMERICA, INC. 893
in light of the guidelines in The Sedona Principles. The
judge then concluded that the General Counsel’s request
for information in native form with attachments and
metadata intact is not unduly burdensome, in light of the
significant narrowing of the information sought. In addi-
tion, he found that the revised subpoenas are consistent
with the nature of the litigation, acknowledging the sig-
nificance of the fact that the Board’s procedures do not
provide for pretrial discovery.
II. POSITIONS OF THE PARTIES
A. CNN’s Brief
CNN argues that (1) the Board must review the Special
Master’s recommendations de novo; (2) the Special Mas-
ter’s Report and Recommendations should be rejected as
a whole; (3) the dispute over the enforceability of the
subpoenas, as construed by the Special Master, is moot;
(4) the Board should resolve CNN’s appeal by ruling that
the subpoenas are unenforceable; and (5) the Board
should reject or correct each of the Special Master’s rec-
ommendations. Specifically, CNN argues, inter alia, that
the General Counsel and the Union used the subpoenas
“to bludgeon CNN throughout the trial” by obtaining
numerous documents and threatening to seek adverse
inferences and sanctions from Judge Amchan. There-
fore, CNN argues, the Board should rule that the original
subpoenas are unenforceable in their entirety, rather than
allowing the General Counsel and the Union to withdraw
the bulk of the subpoenas and thereby leaving unan-
swered the question of whether the subpoenas were an
“abusive litigation tactic.”
CNN further contends that, if the Board rejects this ar-
gument and addresses the subpoenas as revised, the dis-
pute over the enforceability of the subpoenas should be
dismissed as moot because there is no valid purpose for
requiring the production of additional documents now
that the unfair labor practice hearing has ended and the
record has been closed. In this respect, CNN argues that
the General Counsel’s proper recourse for obtaining
documents listed on CNN’s privilege and redaction logs
was to request that Judge Amchan suspend the unfair
labor practice hearing until subpoena enforcement pro-
ceedings were concluded. CNN asserts that the subpoe-
nas no longer have any force or effect because the record
is now closed and there are no grounds for requesting
that the record be reopened now that Judge Amchan has
ruled in the General Counsel’s favor.
Further, CNN urges the Board to balance the burden-
someness of the subpoenas as a whole against the rele-
vance and necessity of the requested information and
find that the subpoenas impose an undue burden on CNN
for the reasons previously set forth in its memorandum in
support of its special appeal. In addition, CNN argues
that Judge Buxbaum acted outside of his mandate from
the Board because he was not assigned the task of ana-
lyzing issues of privilege and in camera review, which
the Board had previously ruled upon in its May 9, 2008
Order.
B. The General Counsel’s Brief
The General Counsel argues that the Board should
adopt Judge Buxbaum’s report and recommendations in
every respect. Arguing that the Special Master acted
within his mandate, the General Counsel states that
Judge Buxbaum fully and correctly accomplished the
tasks assigned to him by the Board, including specifying
that allegedly privileged documents must be produced to
Judge Amchan for in camera inspection pursuant to the
Board’s May 9, 2008 Order, and analyzing the burden-
someness of producing these documents. In addition, the
General Counsel disputes CNN’s assertion of impropri-
ety in the issuance of the subpoenas and the requests for
adverse inferences during the course of the hearing. The
General Counsel further asserts that the proper avenue
for contesting Judge Amchan’s adverse inferences is the
process of filing exceptions to Judge Amchan’s decision.
Finally, the General Counsel argues that the dispute over
the enforceability of the subpoenas is not moot, empha-
sizing that the Board has not yet reviewed Judge Am-
chan’s recommendations and may decide not to adopt
some or all of them. For this reason, the General Coun-
sel argues that it has the right to make sure that the Board
has a complete record by pursuing a motion to reopen the
record, if necessary, once CNN produces the documents
at issue.
C. The Union’s Brief
The Union also argues that the Board should adopt
Judge Buxbaum’s recommendations in their entirety and
reject CNN’s challenges to his report. The Union main-
tains that Judge Buxbaum acted within his mandate from
the Board, and that CNN’s argument that the subpoenas
will be insulated from review if the Board allows with-
drawal of the bulk of the subpoenas is without merit.
The Union further argues, inter alia, that the Board
should defer ruling on the mootness argument raised by
CNN until it has considered any exceptions to Judge
Amchan’s decision, pursuant to which the Board could
decide to remand the proceeding for the purpose of re-
opening the record. Finally, the Union points out that
CNN has failed to address the burdensomeness of re-
sponding to the subpoenas in light of their vastly reduced
scope.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD894
III. DISCUSSION
We have reviewed the Special Master’s Report and
Recommendations de novo, and we agree with his rec-
ommendations.20
A. Enforceability of Subpoenas as a Whole
As an initial matter, we now explicitly reiterate a find-
ing that was implicit in the Board’s May 30, 2008 Order:
CNN’s argument that the subpoenas must be considered
as a whole and as such are invalid and unenforceable is
without merit. We make this explicit finding because,
despite our earlier rulings, CNN continues to argue that
the subpoenas should be rejected as a whole because they
were abusive. The only rationale CNN offers for finding
the subpoenas abusive is that the subpoena requests are
overbroad and compliance would be burdensome. How-
ever, the Board rejected these arguments in its May 30
Order, except with respect to the issue of whether the
burden of producing particular electronically-stored in-
formation might outweigh the relevance and need for the
information. Specifically, the Board found that “the
documents requested by the subpoenas are plainly related
to the matters under litigation” and “[t]he evidence
needed to pursue the complaint allegations in this case is
necessarily quite broad,” considering the particular cir-
cumstances of the case, but that “CNN makes a plausible
argument that production of certain types of information
in electronic form could be disruptive of its business op-
erations.”21 Thus, in rejecting the components of CNN’s
argument that the subpoena was abusive, the Board im-
plicitly rejected the argument itself.22

20 CNN argues that the Board lacked a quorum on May 30, 2008,
when it issued its Decision and Order remanding the proceeding to the
chief administrative law judge. However, this argument is without
merit for the reasons stated in footnote one.
CNN further argues that there is a potential conflict of interest in this
case regarding the Executive Secretary. However, the Executive Secre-
tary has recused himself from this case and has not participated in this
subpoena matter. Therefore, CNN’s assertion is without merit.
21 352 NLRB at 676.
22 As noted in fn. 3 supra, the Board ordered CNN to produce the
documents listed on CNN’s second revised privilege and redaction logs
to Judge Amchan for in camera inspection to determine whether the
documents are protected from disclosure by the attorney-client and/or
work-product privileges. 352 NLRB at 449. CNN has refused to pro-
duce the documents for in camera inspection as ordered, and the Gen-
eral Counsel has filed an application for enforcement of the Board’s
May 9, 2008 Order with the U.S. District Court for the Southern Dis-
trict of New York. The court has stayed the enforcement proceedings
pending the Board’s resolution of CNN’s special appeal. It appears that
the court took this action because it was led to believe that an issue with
respect to the enforceability of the subpoenas in their entirety (includ-
ing documents on CNN’s privilege and redaction logs) remained pend-
ing before the Board. As discussed above, this was not the case. Fur-
ther, in bifurcating consideration of documents on CNN’s privilege and
redaction logs, the Board’s May 9, 2008 Order did not leave unresolved
any question other than privilege with respect to those documents.
In any event, even if the Board had found that particu-
lar subpoena paragraphs were overly broad or sought
information that would be burdensome to produce, it
does not follow from such a finding that the subpoenas in
their entirety were abusive or wrongfully issued, and
CNN cites no authority for this proposition. Similarly,
CNN provides no support for its argument that the sub-
poena must stand or fall as a whole; even if portions of a
subpoena are found to be problematic, such a finding
does not invalidate the entire subpoena. Moreover,
CNN’s production of selected documents that it consid-
ered relevant did not constitute full compliance with the
subpoenas, and the General Counsel did not act improp-
erly by continuing to pursue CNN’s production of the
subpoenaed documents. Therefore, we agree with Judge
Buxbaum that it would serve no purpose to ignore the
General Counsel’s and the Union’s withdrawals and rule
on the subpoenas as originally issued.
B. Burdensomeness
We agree with Judge Buxbaum’s analysis and his con-
clusion that the documents sought in the four remaining
subpoena paragraphs are not burdensome to produce,
particularly in light of the fact that CNN has already lo-
cated the documents and itemized them in its privilege
and redaction logs.23 It is well established that the party
seeking to avoid compliance with a subpoena bears the
burden of demonstrating that it is unduly burdensome or
oppressive. See FDIC v. Garner, 126 F.3d 1138, 1145
(9th Cir. 1997). To satisfy that burden, the party must
show that the production of the subpoenaed information
“‘would seriously disrupt its normal business opera-
tions.’” NLRB v. Carolina Food Processors, Inc., 81
F.3d 507, 513 (4th Cir. 1996) (quoting EEOC v. Mary-
land Cup Corp., 785 F.2d 471, 477 (4th Cir. 1986)).
As Judge Buxbaum makes clear in his report, the range
of items sought by the subpoenas has been significantly
narrowed. CNN has failed to address any factor relating
to the burden of producing this revised range of docu-
ments, continuing to address only the subpoenas in their

23 Based on the current stage of these proceedings and the fact that
the district court has stayed the subpoena enforcement proceedings, we
find that the most expedient course of action is to explicitly state our
agreement with the Special Master’s recommendations. Nonetheless,
we note that the Board’s May 9, 2008 Order (discussed in fns. 3 and 22,
supra) did not leave unresolved any question other than privilege with
respect to documents listed in CNN’s privilege and redaction logs.
Indeed, in its brief opposing the General Counsel’s motion to bifurcate
consideration of privilege issues and issues concerning the subpoenas’
requests for payroll records, CNN raised the issue of burdensomeness
with respect to payroll records but did not argue that documents on its
privilege and redaction logs would be unduly burdensome to produce.
Thus, the issue of burdensomeness with respect to the allegedly privi-
leged documents, standing alone, has never been raised before the
Board.
CNN AMERICA, INC. 895
original form and arguing only that compliance with the
entire subpoena would be unduly burdensome. Nor has
CNN established that compliance with the revised sub-
poenas would disrupt its business. Accordingly, we
agree with the judge that compliance with the revised
subpoenas would not be unduly burdensome, and there is
no obstacle to producing the documents specified therein
for in camera inspection by Judge Amchan in accordance
with the Board’s May 9, 2008 Order.
C. Mootness
We disagree with CNN’s argument that the dispute
over the enforceability of the subpoenas is moot if the
subpoenas are construed as interpreted by Judge Bux-
baum. Judge Amchan’s decision on the merits of the
unfair labor practice charges is not final, and the Board
could decide not to adopt some or all of his recommenda-
tions after consideration of exceptions to his decision.24
Therefore, it is possible that the continued pursuit of al-
legedly privileged information that is the subject of the
subpoena enforcement proceeding may yield information
that the General Counsel or the Union wishes to offer
into evidence to further support their position. In such
circumstances, the parties have a right to request reopen-
ing of the record. For these reasons, we find that the
dispute over the enforceability of the subpoenas is not
moot.
D. Special Master’s Mandate
Contrary to CNN’s argument, we do not find that the
Special Master acted outside of his mandate from the
Board with respect to the allegedly privileged docu-
ments. Judge Buxbaum explicitly stated that he was not
resolving the issue of in camera review of privileged
documents because the Board had already decided that
issue. Rather, Judge Buxbaum specifically limited his
analysis to the burdensomeness of producing those
documents, an issue separate from questions of privilege,
which are to be resolved by Judge Amchan’s in camera
review pursuant to the Board’s May 9, 2008 Order.
While CNN has never argued before the Board that pro-
ducing the allegedly privileged documents, standing
alone, would be burdensome (see fn. 23, supra), we do
not fault the Special Master for addressing this issue spe-
cifically. As noted in footnote 22, supra, it appears that
the Federal district court, in staying the subpoena en-
forcement proceedings, was led to believe that an issue
with respect to the enforceability of the subpoenas in
their entirety (including these documents) remained
pending before the Board. One of CNN’s arguments in

24 CNN has been granted an extension of time until February 17,
2009, to file exceptions.
support of its position that the subpoenas are unenforce-
able in their entirety is that they are unduly burdensome.
Under these circumstances, it was appropriate for the
Special Master to address this issue.
In accord with the Board’s May 30, 2008 Order, Judge
Buxbaum conducted the balancing analysis described in
The Sedona Principles and the Federal Rules of Civil
Procedure and concluded that the remaining documents
at issue were not unduly burdensome to produce. Ac-
cordingly, we find that these actions were consistent with
the Special Master’s instructions from the Board.
IV. CONCLUSION
For the reasons stated above, we adopt the findings
and recommendations of Special Master Paul Buxbaum
in his December 1, 2008 report, and we find that it would
not impose an undue burden on CNN to produce docu-
ments requested in the General Counsel’s and Union’s
subpoenas, as revised, for in camera inspection by Judge
Amchan pursuant to the Board’s May 9, 2008 Order.
SPECIAL MASTER’S REPORT AND
RECOMMENDATIONS
On May 30, 2008, the Board granted CNN America’s (CNN)
request for permission to appeal the denial of a petition to re-
voke subpoenas issued by the General Counsel and the National
Association of Broadcast Employees & Technicians, Local 11
(the Union). The Board’s Order directed the chief administra-
tive law judge to designate an administrative law judge to serve
as a special master to facilitate the resolution of a significant
issue regarding those subpoenas. CNN America, Inc., 352
NLRB 675 (2008). The chief administrative law judge has
appointed me to act in that capacity.
A. Procedural History
This case was initiated by the filing of various charges by the
Union during 2004. The General Counsel issued a consolidated
complaint on April 4, 2007. Approximately 4 months later, on
August 1, 2007, the General Counsel addressed a subpoena
duces tecum to CNN, requiring it to produce a variety of docu-
ments and electronically stored information. There can be no
doubt that the subpoena sought a very broad range of informa-
tion as indicated by its 47-page length containing 243 sepa-
rately enumerated paragraphs listing the information to be iden-
tified, compiled, and provided. Ten days later, the Union is-
sued its own subpoena duces tecum requiring CNN to produce
documents and electronically stored information. CNN filed a
petition to revoke these subpoenas.
Trial in this case commenced on November 7, 2007, before
Administrative Law Judge Arthur J. Amchan. Judge Amchan
denied CNN’s petition to revoke. While this ruling has
prompted considerable additional litigation, the hearing on the
unfair labor practice charges has continued apace. In this com-
plex case, the trial of those issues proved to be a lengthy matter,
ranging over 82 days and concluding on July 21, 2008. On
November 19, 2008, Judge Amchan issued his decision rec-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD896
ommending that the Board find that CNN had violated the Act
in a variety of ways and that it impose a range of remedies to
address those violations. See CNN America, Inc., 5–CA–
31828, JD–60–08.
On three separate occasions during the course of the trial, the
Board granted requests for special permission to appeal rulings
made by the trial judge. On March 20, 2008, the Board issued
a decision regarding certain evidentiary rulings involving the
testimony of a key management witness. CNN America, Inc.,
352 NLRB 265 (2008) (CNN I). This decision is of little rele-
vance to the matter before me.
Less than 2 months later, the Board issued its Order in CNN
America, Inc., 352 NLRB 448 (2008) (CNN II). As will be
discussed in some detail later in this report, this second order is
somewhat pertinent to the matter before me as it concerns
CNN’s petition to revoke the subpoenas. Specifically, the
Board granted the General Counsel’s motion to sustain the trial
judge’s ruling that CNN must produce the documents listed on
CNN’s second revised privilege and redaction logs for in cam-
era inspection by the administrative law judge.1
To date, CNN has not complied with the Board’s Order in
CNN II by producing the materials described in its privilege
and redaction logs for in camera inspection by the administra-
tive law judge. On June 19, 2008, the General Counsel filed an
application for an order enforcing the Board’s directive in the
United States District Court for the Southern District of New
York. NLRB v. CNN America, Inc., Case 08 M-36. CNN op-
posed the application and the matter came before District Judge
Richard J. Sullivan on August 12, 2008. The district judge
stayed that proceeding pending the Board’s resolution of the
remaining issues concerning the materials being sought. The
court noted that these issues consisted of the matters that the
Board had initially committed to the special master as described
immediately below.
Turning now to the subject matter of my mandate as special
master, on May 30, 2008, the Board issued a decision granting
CNN’s request for special permission to appeal the trial judge’s
denial of its petition to revoke on the basis that “the subpoena
requests are overbroad and unduly burdensome to produce.”2
CNN, America, Inc., 352 NLRB 675 (2008), (CNN III). Ob-
serving that CNN had made “a plausible argument” that the
lengthy and detailed subpoenas at issue “could be disruptive of
its business operations,” the Board directed that a special mas-
ter be appointed to assess the claim of undue burdensomeness.
A primary purpose of this action was to minimize interference
with the ongoing trial and permit the trial judge to focus on the
unfair labor practice allegations. CNN III, supra at 676. The
special master was instructed to pursue two objectives. In the
first instance, the master was directed to work with the parties
in order to “aid them in resolving their disputes.” CNN III,
supra. Subsequently, if issues remained unresolved, the master

1 The Board also denied the General Counsel’s motion to bifurcate
consideration of the issue of payroll records that were also sought by
the subpoena.
2 At the same time, the Board denied CNN’s appeal of the trial
judge’s ruling requiring the production of subpoenaed information
despite CNN’s contention that some of that information was protected
by a reporter’s privilege. CNN III, 677–679.
was directed to make recommendations to the Board concern-
ing the appropriate resolution of those issues.
Regarding any portions of the items in controversy that could
not be resolved through the negotiating process, the Board in-
structed the master to apply a balancing of interests analysis
using the methodology described in the Federal Rules of Civil
Procedure and The Sedona Principles.3 Specifically, the analy-
sis requires the assessment of “the competing interests of the
parties in the relevancy and necessity of the [subpoenaed] in-
formation and the potential cost and burdensomeness of its
production in the form requested.” CNN III, supra.
In furtherance of this mandate, I conducted a conference on
July 1–2, 2008, in Washington, D.C. This was attended by
counsel for all the relevant parties.4 At the conclusion of the
conference, the parties and I believed that a series of agree-
ments in principle had been reached that would dispose of all of
the matters within the ambit of the special master’s responsibil-
ity. Over the course of the following months, under my super-
vision, the lawyers for the parties made a conscientious effort to
reduce these agreements to final written form. Although many
telephonic negotiating sessions were held and numerous de-
tailed drafts were circulated, it unfortunately developed that the
proverbial “devil” lurked in the details. Ultimately, although
the discussions served to elucidate the parties’ concerns and
focus their attention on their essential goals and objectives, they
were unable to conclude an overall agreement as to the issues
before me.
Once it became apparent that the litigants would be unable to
reach agreement, I directed that they submit written position
statements to me outlining their final views concerning the
balance of interest analysis that I must apply. I directed the
proponents of the subpoenas to begin the process. Upon receipt
of the positions of the General Counsel and the Union, CNN
was given the opportunity to respond. On October 23, 2008,
counsel for the General Counsel filed the position statement on
behalf of both proponents of the subpoenas. The key portion of
that document consisted of the decisions to greatly narrow the
matters remaining in controversy by the virtually complete
withdrawal of the Union’s subpoena5 and the similar with-
drawal of all of the General Counsel’s subpoena except those
portions seeking “production of only those documents identi-
fied in CNN’s second revised privilege and redaction logs”
which fall within the ambit of paragraphs 26, 36, 40, and 43 of

3 As the Board explained, The Sedona Principles: Best Practices,
Recommendations & Principles for Addressing Electronic Document
Production, Second Edition (The Sedona Conference Working Group
Series, 2007), is a publication of the Sedona Conference, a nonprofit
organization that has created a working group of judges, lawyers, and
technologists with expertise in issues related to electronic discovery.
CNN III, supra at 676.
4 The conference consisted of an introductory plenary discussion, a
series of caucuses during which I conferred with the lawyers for each
side separately, and a final plenary meeting. I wish to thank all counsel
for their active, creative, and diligent participation throughout.
5 The Union merely requests that it be provided with copies of the
same materials being sought by the General Counsel in its Position
Statement. As counsel for CNN correctly expresses it, “Local 31 has
withdrawn its subpoena except to the extent it overlaps with the [Gen-
eral Counsel’s] subpoena.” (CNN’s Position Statement, p. 7, fn. 9.)
CNN AMERICA, INC. 897
the subpoena.6 (GC Position Statement, p. 1.) On November
10, 2008, CNN filed its responsive statement objecting to the
production of any of the remaining items being sought by the
General Counsel and the Union.7
B. The Scope of the Special Master’s Mandate
In conducting the required analysis, I find it useful at the
outset to take specific note of those matters that are not prop-
erly before me under the terms of the Board’s set of instruc-
tions. This is necessary because, somewhat surprisingly, there
are some areas of dispute as to the parameters within which I
must operate.
Section 11(1) of the Act grants the Board the authority to is-
sue subpoenas requiring the production of evidence that relates
to any matter in question. Subpoenas seeking material that
does not relate to the issues involved in the proceeding are sub-
ject to revocation by the Board on proper application. The
standard is whether the items being sought are “reasonably
relevant.”8 Perdue Farms, Inc. v. NLRB, 144 F.3d 830, 834
(D.C. Cir. 1998). In this case, the Board applied this test to the
items sought by the General Counsel and the Union. In defini-
tive language, the Board found that, “the documents requested
by the subpoenas are plainly related to the matters under litiga-
tion.” CNN III, supra at 676. As a result, I need not, and can-
not, endorse any restriction on the matters being sought based
on their supposed lack of relevance.
In petitioning for revocation of the subpoenas, CNN has ad-
vanced various claims that material is protected by privilege.
The contention that a reporter’s privilege shields any of the
subpoenaed information from disclosure was decisively re-
jected by the Board in CNN III, supra at 677, where the Board
held that, even assuming that the information sought is covered
by a qualified privilege, we conclude that the General Coun-
sel’s need for the information outweighs any possible intrusion
on the newsgathering process.

6 At the conclusion of the position statement, counsel makes it clear
that what is being sought is the submission of the materials related to
these four paragraphs for in camera inspection by the administrative
law judge in order to determine whether they contain privileged mate-
rial. (General Counsel’s Position Statement, p. 2.) Only materials
found to be nonprivileged would be subject to disclosure.
7 CNN also asserts that the General Counsel has not actually with-
drawn his other demands for production because counsel for the Gen-
eral Counsel has, at various times, asked the trial judge to draw adverse
inferences from CNN’s failure to produce evidence demanded in the
original subpoena. As the D.C. Circuit has noted, the application of the
adverse inference is based on “the willingness of a party to defy a sub-
poena in order to suppress the evidence.” Auto Workers of America v.
NLRB, 459 F.2d 1329, 1338 (D.C. Cir. 1972). Where the demand for
production has been withdrawn, there can be no act of defiance in re-
fusing to provide the materials. Thus, the propriety of any adverse
inference will depend entirely on the Board’s ultimate resolution as to
the extent of production it will require from CNN and CNN’s subse-
quent compliance.
8 In Perdue Farms, 323 NLRB 345, 348 (1997), the Board cau-
tioned against construing the relevance requirement too narrowly. It
held that materials properly obtainable by subpoena include items that,
while they do not relate directly to a specific alleged unfair labor prac-
tice, constitute background material or items that could lead to other
potentially relevant evidence.
Similarly, the Board has already ruled on CNN’s assertions
of attorney-client privilege and work-product privilege, uphold-
ing the trial judge’s order and requiring “in camera examination
of documents to evaluate [the] claims of privilege.” CNN II,
supra at 676. From this, it is clear that my mandate does not
extend to the assessment of whether any subpoenaed item is
shielded from disclosure by any privilege.9
Finally, while there is no dispute among the parties regarding
my task of assessing the degree of burdensomeness of compli-
ance with the demand for production, there is a contention that
I must ignore the final positions taken by the proponents of the
subpoenas. For reasons that I find difficult to comprehend,
CNN takes the position that I “should address the enforceability
of the Subpoena as a whole, not merely a few paragraphs taken
in isolation.” (CNN’s Position Statement, p. 7.) While counsel
for the Company recognizes that the General Counsel has with-
drawn any request for further enforcement of “239 paragraphs”
of its subpoena, he urges that I reject this major revision of its
position. (CNN’s Position Statement, p. 14.) As to these hun-
dreds of concessions, he refuses to take “yes” for an answer.10
The attempt to induce me to perform an analysis of the de-
gree of burdensomeness involved in complying with the de-
mands for production made in the now-withdrawn 239 para-
graphs must be rejected as contrary to any notions of adminis-
trative efficiency, common sense, and, most importantly, the
terms of my mandate and the governing legal authority. As to
administrative efficiency, CNN is demanding that I analyze and
resolve 239 hypothetical problems in civil procedure in a man-
ner that I have not been called on to do since I graduated from
law school more decades ago than I wish to remember. If I
were to accept this invitation, presumably the same demand
would be made upon the Board to evaluate the results of my
labor in the field of hypothetical problem solving. I feel quite
certain that, in creating the Board, Congress intended it to use
its limited time and resources to set national labor relations
policy and adjudicate real disputes affecting interstate com-
merce. I feel equally confident that the Board would not desire
its judges, special master, or other professional employees to
devote time and effort to the resolution of controversies that no
longer exist.
Beyond issues of administrative policy and allocation of re-

9 As will be addressed later in this report, CNN contends that the
fact that issues of privilege have already been addressed by the Board
constitutes a basis on which to reject the General Counsel’s present
position in this matter because all of the remaining information being
sought is subject to an assertion of privilege. For reasons to be dis-
cussed, I cannot agree with this proposition.
10 Counsel for CNN also argues that the General Counsel’s failure to
include an explicit discussion about any possible undue burdensome-
ness of compliance with its revised position must lead to a finding that
he has “conceded the issue as a matter of law.” (CNN’ Position State-
ment, p. 6.) I cannot agree. In the first place, such a conclusion would
shift the burden of proof. The Board has already found that the General
Counsel is seeking relevant material. It is CNN’s burden to show why
such relevant material should not be produced. CNN III, supra at 676.
Secondly, I find the General Counsel’s revisions to constitute a power-
ful argument in favor of his position on this issue. By making these
carefully crafted and sweeping revisions to his position, the General
Counsel has allowed his actions to speak louder than words.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD898
sources, CNN’s position offends common sense. This is best
illustrated by engaging in a mental exercise. If I were to accede
to CNN’s demand, it is, of course, entirely possible that I would
conclude that some or all of the material being sought in the
239 withdrawn paragraphs of the subpoena was not unduly
burdensome to produce in light of the analytical criteria estab-
lished by the Board. It is equally possible that the Board would
accept some or all of my recommendations in this respect. It is
not difficult to imagine that CNN would make vociferous and
entirely justifiable arguments to an appellate court that the
Board had abused its discretion by directing the production of
materials that no party was presently seeking. By inviting such
a possible result, CNN’s position as to this aspect of the pro-
ceeding simply defies logic.
While I have rejected CNN’s position for reasons of logic
and efficiency, I recognize that the ultimate basis on which I
must evaluate that position is the governing law. In that regard,
my lodestar must be the Board’s mandate to me. In my view,
that mandate placed significant emphasis on the value of the
special master’s efforts to “aid [the parties] in resolving their
disputes,” and on “work[ing] with the parties concerning pro-
duction of subpoenaed documents.”11 CNN III, supra at 676. It
is because of this emphasis on facilitating the narrowing of the
issues by the parties themselves, that the Board took care to
instruct the master to file recommendations for the disposition
of issues that cannot otherwise be resolved, only “[i]f neces-
sary.” CNN III, supra. I can perceive of no necessity that
would justify my involvement in assessing the propriety of
demands for production of evidence that have been voluntarily
relinquished by the General Counsel and the Union.
Furthermore, giving effect to evolution in parties’ positions
based on efforts to meet and confer about the issues is entirely
consistent with the principles described in the Federal Rules of
Civil Procedure and The Sedona Principles. See Fed.R.Civ.P.
26(f) and Principle 3 of the Sedona Principles (“Parties should
confer . . . and seek to agree on the scope of each party’s rights
and responsibilities.”) Where, in the course of discussions
among all concerned, a party unilaterally agrees to reduce its
demand for information, sound policy requires that such efforts
be acknowledged and given effect. For all of these reasons, I
emphatically decline CNN’s invitation to ignore the substan-
tially and meaningfully revised positions now being taken by
the General Counsel and the Union. Consideration of any de-
mands for production that have been withdrawn falls well out-
side the boundaries of my mandate from the Board. 12

11 Such a reading of this language in the mandate is consistent with
what the Board has referred to as its “longstanding policy of encourag-
ing compromises and settlements.” Human Development Assn., 344
NLRB 902, 903 (2005). [Internal punctuation and citation omitted.]
12 Paradoxically, while CNN demands that I assess far more than
what actually remains at issue in this matter, it also asserts that I lack a
mandate from the Board to address any of the items described in the
General Counsel’s revised demand for production. Counsel argues that
this must be true because the revised demand is limited to material
contained in the privilege and redaction logs. Since the Board has
already affirmed the trial judge’s order for in camera inspection of
those logs, counsel contends that there is nothing left for me to con-
sider. In this regard, I share the view of the District Judge who has
C. The Significance of the Privilege Logs
I have already noted that the General Counsel and the Union
have withdrawn 239 of the 243 paragraphs originally at issue.13
In simple arithmetic terms, this represents a greater than 98
percent reduction in the amount of the materials being sought.
Of course, simple math is not the standard by which I must
assess the burdensomeness of the remaining demands. In fact,
the General Counsel’s revised position contains an additional
limitation which has overwhelming significance on the issue of
undue burdensomeness.
In its response to the General Counsel’s revised position,
CNN places a sinister interpretation on the restriction of mate-
rial being sought to only those items listed on its privilege logs.
Counsel for the Company characterizes this limitation as fol-
lows:
The General Counsel’s demand makes clear that the General
Counsel and Local 31 are interested primarily in invading
CNN’s privileges, not in obtaining discoverable information.
They seek production of information only if it is privileged.
Such an effort to invade the privilege by a government prose-
cuting entity strikes at the heart of the privilege protections,
and is therefore severely burdensome.
(CNN’s Position Statement, pp. 14—15.)
In my view this represents a complete misreading of the
General Counsel’s intent. Despite the rhetorical flourishes,
CNN cannot point to a single item of assertedly privileged ma-
terial that General Counsel is now seeking that it has not al-
ready sought. There is no doubt that General Counsel and the
Union, with the conditional approval of the Board, are demand-
ing an in camera inspection of the items designated as privi-
leged by CNN. They have gone so far as to seek on order from

stayed the resolution of the in camera inspection issue until the Board
makes a final determination on the question of undue burdensomeness
that is before me in the first instance. As Judge Sullivan put it, “cer-
tainly I would be deciding overbreath before I would be marching into
issues of privileges.” (Tr. p. 5, submitted to me by CNN as attachment
3 to its Position Statement.) As the Board noted in its order as to attor-
ney-client privilege, CNN has raised “the broader issue” of burden-
someness. (CNN II, supra) If any or all of the material indexed on the
logs is found to be too burdensome to produce, CNN will not be re-
quired to submit it for in camera inspection. As the district judge has
indicated, the overarching issue of undue burdensomeness must be
resolved before consideration of the narrower question regarding in
camera inspection of those items that are not deemed unduly burden-
some to produce. Indeed, a contrary reading would hardly be to CNN’s
benefit as the General Counsel’s revised position would then be viewed
as having completely eliminated the issue of burdensomeness from the
case. Not even the General Counsel draws such a conclusion about the
Board’s intentions. If the Board had, in fact, intended the in camera
inspection to go forward regardless of any possible undue burdensome-
ness of production, I believe it would have said so explicitly.
13 Actually, the proponents of the subpoena have withdrawn more
than that. First, the Union has withdrawn its entire subpoena in so far
as it sought material not already produced or encompassed in the Gen-
eral Counsel’s remaining demands. Second, even as to the four para-
graphs of the subpoena under which information continues to be
sought, the scope of the information has been materially restricted by
the limitation of the demand to only those materials described in
CNN’s revised privilege and redaction logs.
CNN AMERICA, INC. 899
the district court compelling such submission for inspection.
However, the fact remains that the General Counsel’s revised
position in this proceeding, far from increasing its demands,
serves to significantly reduce the amount of allegedly privi-
leged information being sought. As matters now stand, the
General Counsel seeks the submission for inspection of only
those items listed in the privilege logs that are responsive to
four enumerated paragraphs of its subpoena.
In my opinion, these revisions in the General Counsel’s posi-
tion constitute a very substantial effort to address the Board’s
concern that the scope of the original demand for production
raised plausible issues of undue burdensomeness. To under-
stand why this is so, it is necessary to examine the nature and
purpose of the concept of a privilege log.
As Magistrate Judge Facciola has observed, privilege logs
are “the universally accepted means of asserting privileges in
discovery in the federal courts.” Avery Dennison Corp. v. Four
Pillars, 190 F.R.D. 1 (1999). The requirement for an explana-
tory description of documents being withheld on the basis of a
claimed privilege arises from the language of Fed.R.Civ.P.
26(b)(5)(A)(ii) which requires the withholding party to, “de-
scribe the nature of the documents, communications, or tangi-
ble things not produced or disclosed—and do so in a manner
that, without revealing information itself privileged or pro-
tected, will enable other parties to assess the claim.” Compli-
ance with the rule requires more than a cursory description of
each item. Instead, the privilege log should contain a specific
explanation of the basis for the assertion of the privilege. See
US v. Construction Products Research, Inc., 73 F.3d 464, 473
(2d Cir. 1996), cert. denied 519 US 927 (1996).
Turning now to the procedures applied by the Board, analy-
sis must begin with the recognition that the Board greatly val-
ues the principles underlying the attorney-client privilege.
Thus, the Board has characterized the privilege as “fundamen-
tal,” noting that “[w]ithout the protection afforded by this privi-
lege, the open communication necessary for accurate and effec-
tive legal advice would be virtually impossible.”14 The Smith-
field Packing Co., 344 NLRB 1, 13 (2004), enf. 447 F.3d 821
(DC Cir. 2006). In the process of adjudicating issues arising
when the privilege is asserted in its proceedings, the Board has
observed that, “the Federal Rules of Civil Procedure provide
useful guidance although they are not binding on this Agency.”
Brinks, Inc., 281 NLRB 468 (1986). In fact, in Brinks, the
Board placed specific reliance on Rule 26.
The Board’s published Bench Book sets out additional de-
tails regarding the procedures for evaluation of issues of attor-
ney-client privilege, including the requirement for a detailed
privilege log. It provides:
In an unpublished order (Tri-Tech Services, 15–CA–16707
(July 17, 2003)), the Board set forth the following general
principles and procedures for presenting and deciding attor-
ney-client privilege issues . . . . [including] the requirement

14 Similarly, the Board has noted that a failure to honor the work-
product privilege would “hinder the ability of lawyers to advise their
clients” and undermine the achievement of important goals involved in
labor relations policy. Sprint Communications, 343 NLRB 987, 990
(2004).
that the party asserting the privilege must provide an index,
identifying the allegedly privileged documents and the parties
to each of the communications and providing sufficient detail
to permit an informed decision as to whether the document
was at least potentially privileged . . . . Specifically, the index
must include “(1) a description of the document, including its
subject matter and the purpose for which it was created; (2)
the date the document was created; (3) the name and job title
of the author of the document; and (4) if applicable, the name
and job title of the recipient(s) of the document.”
NLRB Division of Judges Bench Book, 2005 Supplement, § 8-
410.15
As the Board stated in CNN II, 352 NLRB 448 (2008), “[o]n
February 29, 2008, CNN produced to the General Counsel and
the judge its ‘Second Revised Privilege and Redaction Logs’
describing documents that it is withholding or redacting based
on the assertion of attorney-client and/or work-product privi-
leges.”16 I am unaware of any contention that these privilege
logs lack the detail required for such documents.
My purpose in providing this degree of background concern-
ing the concept of privilege logs and CNN’s use of them to
protect materials it believes are privileged is to illustrate a key
point regarding the issue of burdensomeness that is before me
for evaluation. In order to prepare its privilege and redaction
logs, counsel for CNN, of necessity, had to identify, locate,
examine, evaluate, and describe each and every item that was
selected for inclusion on those logs. In reaching this conclusion
regarding CNN’s preparation of the logs, I need not simply rely
on the content of the logs themselves or inferences about the
amount of effort required to produce those logs. The record
contains probative statements from CNN regarding the steps it
has taken to prepare the logs.
In a letter written by counsel for CNN to Judge Amchan and
submitted to me as attachment 8 to CNN’s Position Statement,
at pages 2–3, counsel reported that “[a] team of more than 15
attorneys and paralegals was then assembled to review each
document for relevance to the issues in this case, and to identify
whether those documents contained confidential or privileged
information.” The extent of CNN’s effort to locate and exam-
ine documents was confirmed by testimony of the corporate
official to whom the subpoenas in this case were addressed,
Cynthia Patrick, executive vice president of news division op-
erations for CNN. In CNN I, 352 NLRB 265 (2008), the Board
reported that, “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 documents contained confidential business-related in-

15 The Bench Book may be accessed at
www.nlrb.gov/publications/manuals and is cited in Westlaw at FLB-
NLRBJB Ch. 8.
16 The subpoena itself directed CNN to prepare a privilege log for
any material, including electronically stored information, which was
claimed to be subject to privilege. The instructions specified the degree
of detail required in creating such a log, including a description of the
subject matter and purpose for which any such item had been created
and, the “factual and legal basis for claimed privilege.” (Subpoena,
instruction K.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD900
formation.”
An even more detailed description of the degree of effort ex-
pended by CNN’s attorneys in the preparation of the privilege
logs is contained in CNN’s reply brief in support of its request
for special permission to appeal. In that brief, counsel provides
compelling insight into the quality of CNN’s research in com-
piling the privilege logs. As he describes it,
According to Counsel for the General Counsel and Local 31,
CNNhas applied a blanket attorney-client privilege to any
document sent or received by CNN in-house counsel Lisa
Reeves. That is simply not true, and Counsel for the General
Counsel and Local 31 know it. CNN has carefully reviewed
responsive documents and emails to and from Ms. Reeves
and only asserted the attorney-client privilege where those
communications relate to seeking or providing legal advice.
CNN then provided Counsel for the General Counsel and Lo-
cal 31 with a detailed privilege log, identifying each docu-
ment that CNN claims is subject to the attorney-client privi-
lege and providing the basis for the assertion of the privilege.
[Internal citations to the record omitted.]
(CNN’s Reply in Support of its Request and Supplemental
Request for Special Permission to Appeal, p. 6.)
It is in light of these considerations about the overall nature
of privilege logs and the degree of effort involved in the crea-
tion of the specific logs involved in this case, that the General
Counsel’s revised position limiting its request for production
solely to materials contained in the logs assumes great signifi-
cance. In performing my assessment of the degree of burden-
someness that would be involved in requiring the production of
the material now being sought, I am highly mindful that all
such items have already been located, evaluated, and indexed
by counsel for CNN. This salient fact has obvious implications
when one considers the degree of additional burden that would
be imposed on CNN if the General Counsel’s remaining de-
mands for production were granted.
D. The Balancing of the Interests on the Issue of
Undue Burdensomeness
I will now perform the analysis mandated by the Board. At
the outset, it is important to note that the Board has placed the
burden of proof on the issue of undue burdensomeness squarely
on the shoulders of CNN, holding that, “it is well established
that the party seeking to avoid compliance with a subpoena
bears the burden of demonstrating that it is unduly burdensome
or oppressive.” CNN III, supra ay 676. [Citations omitted.]
This flows from the pertinent observation of the Fifth Circuit in
another case arising under the Act that, “the fact that parties
must comply with subpoenas is incident to every sort of trial
and is part of the social burden of living under government.”
NLRB v. G.H.R. Energy Corp., 707 F.2d 110, 114 (5th Cir.
1982). [Internal punctuation and citations omitted.]
As previously noted, the Board has directed that I refer to
two authoritative sources that provide the framework for the
analysis, the Federal Rules of Civil Procedure and The Sedona
Principles, Second Edition (hereinafter Sedona). Of the two, it
is appropriate to begin with the standard articulated in
Fed.R.Civ.P. 26(b)(2)(C) because that standard is specifically
incorporated into the balancing test described by the Sedona
Working Group. See Sedona, Principle 2, p. 35 (“[w]hen bal-
ancing the cost, burden, and need for electronically stored in-
formation, courts and parties should apply the proportionality
standard embodied in Fed.R.Civ P. 26(b)(2)(C)).
At its heart, the balancing test of Rule 26 provides that the
adjudicator must limit requests for discovery where:
the burden or expense of the proposed discovery outweighs its
likely benefit, considering the needs of the case, the amount in
controversy, the parties’ resources, the importance of the is-
sues at stake in the action, and the importance of the discovery
in resolving the issues. Fed.R.Civ.P. 26(b)(2)(C)(iii). I will
now examine each of these considerations.
The General Counsel and Union’s revised position limits the
demand for information to certain specified topics. They seek
materials related to the reasons for denying employment to job
candidates who received an interview (Subpoena, par. 26);
information regarding an important management meeting held
in July 200317 (Subpoena, par. 36); information regarding
communications made prior to that meeting concerning the
issues involved in CNN’s redefinition of its operations (Sub-
poena, par. 40); and, more generally, material that addresses the
rationale for CNN’s decision to terminate its contracts with the
employer of the bargaining unit members (Subpoena, par. 43).
A review of the consolidated complaint and the answer to
that complaint quickly establishes that the topics described in
the General Counsel’s revised position go to the heart of the
litigation. The key contentions in the complaint have been
described by the Board as, “complex allegations regarding suc-
cessor or joint employer status, unlawful withdrawal of recog-
nition, unlawful unilateral changes, unlawfully motivated can-
cellation of news-gathering agreements with [Team Video Ser-
vices], and discrimination based on union activity and member-
ship.” CNN II, supra at 449. (See also the order consolidating
cases, consolidated complaint and notice of hearing, pars. 22
through 26.) It is clear from the descriptions provided in the
specific paragraphs of the subpoena that the topics being se-
lected for production of information relate directly to these core
allegations. The information being sought is particularly and
narrowly designed to elicit evidence regarding the reasons un-
derlying the decision to reorganize the Company’s operations
in a manner that caused the employer to terminate any relation-
ship with the Union and regarding the hiring determinations
that the employer made concerning the applications of former
bargaining unit members seeking employment within the new
organizational structure.
I have no difficulty in determining that the sharply delineated
class of materials being sought is of the utmost importance to
the needs of this particular litigation. Without doubt, the key
inquiry before the Board on the merits of this case is the nature
of the employer’s motivation and the intent underlying the
business decisions that are in question. It is noteworthy that

17 CNN contends that the key reorganization plan that resulted in
this litigation was recommended during this meeting. Shortly thereaf-
ter, the employer made the decision to adopt this recommendation.
See, CNN America, Inc., 5–CA–31828, JD-60-08, at pp. 139—140.
CNN AMERICA, INC. 901
CNN does not attempt to dispute the central significance of the
materials being sought in the four paragraphs. In addition, I
have considered the Board’s pertinent discussion of the relative
probative values of documentary evidence created while the
events under scrutiny were taking place as compared to possi-
bly self-serving accounts provided on the witness stand years
later. See Domsey Trading Corp., 351 NLRB 824, 836 (2007)
(in such circumstances, documentary evidence is “entitled to
greater weight than contradictory testimonial evidence”).18
This factor plainly cuts in favor of the General Counsel and the
Union.
The next factor is the amount in controversy. While none of
the parties have explicitly addressed this factor in their submis-
sions to me, it is apparent that the amount of money involved in
this case is very large, particularly by reference to the nature of
labor law litigation. In the event the General Counsel and
Charging Parties prevail in this case, it must be expected that
the Board would order reinstatement of numerous employees,
backpay for employees who had been wrongfully discharged or
whose employment applications had been improperly denied,
and a resumption of the collective-bargaining relationships that
had been unilaterally terminated by CNN.19 This last point is
of particular significance because such a remedial measure
would have potentially vast consequences affecting very many
aspects of CNN’s operations and the careers and financial pros-
pects of the numerous individuals who have been gravely im-
pacted by the employer’s actions. CNN has never contended
that the amount at issue in this case does not justify the demand
for the specific information now being sought. This factor
weighs in favor of the General Counsel and the Union.
Rule 26 next requires assessment of the respondent’s re-
sources. This goes to the heart of the matter as it would be an
abuse of the subpoena process to require a party to impoverish
itself in order to carry out its responsibilities as a respondent in
this litigation. The Sedona Working Group’s Principle 3 makes
this even clearer by observing that Rule 26 requires considera-
tion of the “realistic costs of preserving, retrieving, reviewing,
and producing electronically stored information.” (Sedona,
Principle 3, at p. 35.) It is apparent to me that the Board placed
particular emphasis on this consideration in finding that it was
“plausible” that CNN could be faced with an undue burden in
complying with the demands set forth in the 243 paragraphs of
the General Counsel’s original subpoena. The Board made
specific reference to the fact that CNN had provided an expert
vendor’s estimate stating that the cost of compliance would be
“over 8 million dollars.” (CNN III, supra at 675 fn. 5.)
In its Position Statement offered in response to the General
Counsel’s revised demands, CNN again submitted this estimate

18 Judge Amchan repeatedly commented to the effect that “there is
little credible documentation of what occurred,” and that CNN’s man-
agement witnesses “had trouble remembering what transpired.” (CNN
America, Inc., 5–CA–31828, JD-60-08, at p. 140.) This makes it par-
ticularly useful to examine any non-privileged materials of the types
being sought in order to compare their contents with the testimony
given at trial.
19 Judge Amchan’s recommended order provides for precisely these
forms of relief, including a make-whole remedy for scores of employ-
ees. (CNN America, Inc., 5–CA–31828, JD-60-08, at p. 149.)
and accompanying explanatory declarations from an official of
the vendor and its own vice president of technology services.
See, CNN’s Position Statement, attachments 9 and 10. These
only serve to underscore the deficiencies in CNN’s current
position regarding the expense of compliance with the General
Counsel’s demands. The documents address the costs of com-
pliance with the original 243-paragraph subpoena. They do not
in any way attempt to quantify the costs of compliance with the
greatly revised request for limited production of materials that
are responsive to four paragraphs of the subpoena. Beyond
that, they do not address the significance of the fact that the
only materials being sought consist of items that have been
previously identified, examined, characterized, and indexed by
counsel for CNN.
In striking contrast to the situation encountered by the Board
in CNN III, I am asked to find that the revised demand for pro-
duction is unduly burdensome based purely on speculation and
conjecture. The absence of any particularized allegation re-
garding the cost or effort involved in compliance is dispositive.
The current situation is remarkably similar to that faced by the
Board very recently in Local One-L, Lithographers Local One-
L (Metropolitan Lithographers Assn.), 352 NLRB 906 (2008).
In that case, the respondent defended a refusal to provide in-
formation on the basis of burdensomeness.20 The Board
adopted the administrative law judge’s rejection of this defense
because the burdensomeness claim was raised “without identi-
fying with particularity which requests would impose such a
burden or why . . . . Nor did Respondent substantiate at the
hearing, in any quantifiable way, the time, expense or resources
necessary . . . to comply.” Id at 921. Similarly, CNN has of-
fered no information concerning the degree of effort or expense
necessary to comply with the sharply revised demand for in-
formation that is now before me. The absence of such particu-
larized information constitutes a complete failure of proof as to
this factor in the assessment.
The remaining two considerations contained in Rule 26 are
the importance of the issues at stake and the importance of the
material being sought in resolving those issues. My prior dis-
cussion has already shed light on these factors. It is clear that
the issues at stake in this case are of far-reaching importance
from a governmental viewpoint in the administration of the
nation’s labor relations policies, the Union’s institutional view-
point as a representative of employees working in the broadcast
industry, and from the highly personal viewpoint of the mem-
bers of the bargaining unit who lost their means of earning a
livelihood. Furthermore, the highly refined and sharply nar-
rowed revised demands for production go directly to the heart
of the controversy. If not found to be shielded by privilege
during in camera inspection, information produced in response

20 The context in that case was an employer’s demand for informa-
tion from a union pursuant to Sec. 8(b)(3) of the Act. I do not see this
as a meaningful distinction. The Board typically disfavors assertions
made by parties in litigation that are purely conclusory and lack eviden-
tiary support. See, for example, Mission Foods, 345 NLRB 788, 791
(2005), where the Board held that an employer’s conclusory confidenti-
ality defense to production of information was insufficient since, “a
blanket claim of confidentiality will not satisfy the respondent’s burden
of proof.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD902
is reasonably likely to yield probative evidence regarding
CNN’s degree of compliance with the Act and will likely have
a significant impact on the private interests of the Union and
the individual bargaining unit employees. These factors favor
the General Counsel’s position.
The balancing test propounded by the Sedona Working
Group is fundamentally identical to and derivative of the test in
Rule 26. However, the Working Group’s formulation does
raise some additional worthwhile factors. For instance, it man-
dates evaluation of the “technological feasibility” of production
of electronically stored information as a consideration on the
question of undue burden. (Sedona, Principle 3, p. 35.) With
one exception, CNN fails to provide any specific objection to
production based on such technological issues. This is hardly
unexpected given that the demand for production is now limited
to items that CNN has already identified, retrieved, and in-
dexed.
The one exception that has been cited concerns electronically
stored information that CNN has preserved only for disaster
recovery purposes. Under certain circumstances, the General
Counsel’s original subpoena did seek retrieval and production
of material “restored from backup tapes.” (Subpoena, attach-
ment A, pars. E & Q.) CNN’s Position Statement, at p. 11,
observes:
While the General Counsel has abandoned all but four of its
Subpoena requests, it has not stated that it has abandoned the
demand for review of back-up tapes.
This is a source of legitimate concern to CNN. The Sedona
Working Group has noted that electronically stored materials
subject to production under Rule 26 are limited to reasonably
accessible sources such as desktop computers or a company’s
network. Conversely, materials whose production may require
“undue burden or cost” include “backup tapes that are intended
for disaster recovery purposes.” (Sedona, Comment 2.c, at p.
42.)
While counsel for CNN is correct in asserting that the Gen-
eral Counsel has not explicitly withdrawn the demand for pro-
duction of backup tapes in certain limited circumstances, this is
not the end of the story. As is true in other aspects of this in-
quiry, CNN fails to come to grips with the full implications of
the General Counsel’s revised position. By limiting the entire
demand for production to materials that have already been in-
dexed on CNN’s privilege and redaction logs, the General
Counsel’s current position constitutes an implicit withdrawal of
any demand for material on backup tapes. In other words, all
the materials being sought have already been identified, lo-
cated, and reviewed by counsel for the employer. There is
nothing being sought that would require resort to expensive
methods for recovery of information from backup systems.21

21 In the unforeseen event that an issue regarding production from
backup tapes could still arise in some context, I am sympathetic to
CNN’s concerns. Principle 8 of the Sedona Working Group shifts the
burden to the requesting party when backup tapes are being sought.
The General Counsel has not provided any evidence establishing that
the costs and burden of producing such material is outweighed by the
need for, and relevance of, any items being sought from such secondary
sources of electronically stored information.
In its Position Statement, CNN has not specifically raised
any issue regarding the General Counsel’s demand for produc-
tion of metadata. Nevertheless, I have chosen to consider this
question in light of the teachings of the Sedona Working
Group. The subpoena calls for production of certain electroni-
cally stored items in “native form, with all metadata and at-
tachments intact.” (Subpoena, attachment A, par. E.) As ex-
plained in the commentary to Sedona, this refers to “hidden
text, formatting codes, formulae, and other information associ-
ated with the file.” (Sedona, Comment 12.a., at p. 185.) The
Sedona principle addressing metadata states that the scope of
required production should take into account, “the need to pro-
duce reasonably accessible metadata that will enable the receiv-
ing party to have the same ability to access, search, and display
the information as the producing party.” (Sedona, Principle 12,
at p. 185.) A key consideration is, “the needs of the case.”
(Sedona, at p. 186.) This factor requires an evaluation of the
potential probative value of the metadata and the extent to
which production will enhance the functional utility of the elec-
tronic information being produced.
In my view, the breadth of the demand for production of
metadata would have been highly significant on the overall
question of undue burdensomeness if the General Counsel had
elected to press for the vast range of information sought in the
original subpoena. As with so much else that is before me, the
dramatic narrowing of focus represented by the General Coun-
sel’s revised position greatly alters the calculus of potential
reward versus undue burden. I have already noted that the
revised request consists of a laser-like attention to a search for
evidence on the key issues at the heart of the unfair labor prac-
tice allegations. The narrow scope of the demand makes it
appropriate to recommend that the material responsive to that
demand be produced in a highly functional format that will
increase the utility of this material. This is particularly true
since the revised demand is limited to the types of material that
are likely to yield probative evidence as to dispositive issues in
the case.
Both because CNN fails to make any specific claim that pro-
duction of the material sought in native format with metadata
will be unduly burdensome, and because my own review of the
evaluative criteria in Sedona leads me to conclude that the
likely benefits to the adjudicative process of such production
outweigh the reasonable additional burden involved, I recom-
mend that the Board refrain from altering the scope of the de-
mand regarding metadata.
Finally, the Sedona Working Group has specifically ad-
dressed an aspect of the appropriate inquiry that lurks within
the framework of the Rule 26 analysis. Thus, Sedona’s Princi-
ple 3 calls for the examination of the “nature of the litigation.”
I view this as very important. Throughout my work with the
parties in this matter, I have stressed the unique nature of the
Board’s processes and the resulting implications for enforce-
ment of the General Counsel’s original 243-paragraph demand.
Very recently, the Board has again reiterated its longstanding
position regarding pretrial discovery:
Board proceedings do not provide for [discovery] procedures,
and parties to such proceedings do not possess rights to pre-
CNN AMERICA, INC. 903
trial discovery . . . . It is well settled that parties to judicial or
quasi- judicial proceedings are not entitled to discovery as a
matter of constitutional right. Furthermore, the Administra-
tive Procedure Act does not confer a right to discovery in fed-
eral administrative proceedings. Moreover, the National La-
bor Relations Act does not specifically authorize or require
the Board to adopt discovery procedures.
Bashas’, Inc., 352 NLRB 661 (2008) (Citations omitted.)
The Board’s aversion to importing the complex rules of civil
discovery into its administrative processes is not arbitrary. It
flows from careful assessment of important realities involved in
labor law litigation. Some of these realities were discussed by
the Board in Offshore Mariners United, 338 NLRB 745 (2002),
including the recognition that pretrial discovery is a primary
source of delay in civil litigation and creates abundant opportu-
nities for collateral disputes that distract from the essential
goals and functions that Congress intended the Board to per-
form. In addition, the Board has pointed to the peculiar nature
of labor litigation with its special capacity for intimidation and
reprisals on the part of both labor and management as a reason
to avoid protracted and intrusive discovery procedures.22
Even taking into account the size and complexity of this
case, I have expressed concern that the General Counsel’s
original 243-paragraph subpoena posed some of the hazards
that the Board has cited. The tone and content of that document
certainly flirted with the imposition of pretrial discovery proc-
esses in this labor law case. This is yet another example, how-
ever, of how the ground has shifted in light of the General
Counsel’s revised position. That revised position is consistent
with the usual practice involving subpoenas that require a re-
spondent to produce documents and materials directly related to
the key issues involved in the trial. As a result, I find that the
revised position is consistent with the nature of the litigation.
This factor now favors the General Counsel.
I conclude that the General Counsel’s revised position is well
supported through application of the analytical techniques con-
tained in Rule 26 and Sedona. Taking into account the needs of
the case, the importance of the issues involved, the likely value
of the material being sought in resolving those issues, and the
absence of any evidence of undue cost or burden resulting from
the production of the limited range of materials being de-

22 On a personal note, I have come to labor law late in my legal ca-
reer, having previously served for a time as a judicial officer who man-
aged and adjudicated discovery disputes on a civil docket. In my cur-
rent role, I am often struck by how much the labor law bar appears to
enjoy its work. In discussions with practitioners, the absence of dis-
covery procedures is often cited as a factor in this favorable climate for
job satisfaction. That is consistent with my experience. Civil discov-
ery, while offering a means of obtaining much probative information, is
also subject to a tremendous amount of unpleasant controversy and
abusive behavior. While the Board does not exist for the enjoyment of
those lawyers who appear in its cases, I would be loathe to see it import
a system of discovery that, in my opinion, has degraded the quality of
life for many members of our profession. A review of the Board’s
precedents clearly demonstrates that our litigants do not lack the means
and ability to make full and effective presentations of their cases de-
spite the absence of interrogatories, depositions, and the other weapons
in the arsenal of discovery.
manded, the revised position should be upheld. Put another and
more precise way, I find that CNN has failed to meet its burden
of demonstrating that the materials being demanded in the re-
vised position are so burdensome or expensive to produce as to
outweigh the potential benefit likely to be obtained by their
production.
Finally, in reaching this ultimate conclusion, I have been
mindful that the Board’s fundamental concern is whether an
order requiring production of subpoenaed information would
“seriously disrupt” CNN’s normal business operations. CNN
III, supra, citing NLRB v. Carolina Food Processors, Inc., 81
F.3d 507, 513 (4th Cir. 1996). A count of the number of pages
that are enumerated on the updated redaction log is 493. The
figure for the privilege log is 582.23 Of these numbers, it must
be recalled that the revised demand for production only calls
for submission of those items responsive to four paragraphs of
the subpoena. It is likely that this number will be less than the
full total of 1075 enumerated pages.
The Board has emphasized that a subpoena is not unduly
burdensome merely because it requires the production of a
large number of documents. McAllister Towing & Transporta-
tion Co., 341 NLRB 394, 397 (2004), enf. 156 Fed. Appx. 386
(2d Cir. 2005). This echoes the observations made years ago
by a circuit court in another labor law case:
The mere fact that compliance with the subpoenas may re-
quire the production of thousands of documents is also insuf-
ficient to establish burdensomeness . . . . While it may be true
that these subpoenas will require the production of a large
number of records and documents, it must be remembered
that this investigation involves complaints by a substantial
number of union members. The mere size of Respondent’s
operation is no excuse for its refusal to give information rela-
tive to possible unfair labor practices. It is presumed, by the
very fact that Respondent has such a large number of employ-
ees, that it is sufficiently equipped to handle the records of its
employees. [Citation omitted.]
NLRB v. G.H.R. Energy Corp., 707 F.2d 110, 114 (5th Cir.
1982). See also NLRB v. Baker, 166 F.3d 333 (4th Cir. 1998).
In this matter, I have been shown no indication whatsoever that
CNN is unable to respond to the General Counsel’s revised
demand for production without serious (or, indeed, any) disrup-
tion of its business operations.
Recommendations
For the foregoing reasons, I recommend that the Board:
1. Accept the General Counsel’s withdrawal of paragraphs 1
through 25; 27 through 35; 37 through 39; 41; 42; and 44
through 243 of its subpoena duces tecum to the extent that
those paragraphs require the production of any documents or
electronically stored information that have not already been
provided by CNN.

23 The privilege log, at p. 32, lists four other entries without specify-
ing the number of pages. These entries are all for correspondence
between CNN and outside counsel. It is certainly possible that they
could consist of many pages, but they also appear to be the sort of
material that is particularly easy to locate and produce as it would be
maintained in the files of both sender and recipient.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD904
2. Accept the General Counsel’s limitation of the documents
and electronically stored information being sought pursuant to
paragraphs 26, 36, 40, and 43 of its subpoena duces tecum to
only those documents and electronically stored information that
have already been provided by CNN and to the documents and
electronically stored information listed on CNN’s revised Privi-
lege and redaction logs, dated February 29, 2008, that are re-
sponsive to those paragraphs.
3. Accept the Union’s withdrawal of its subpoena duces te-
cum to the extent that its subpoena requires the production of
any documents or electronically stored information not already
provided by CNN or being sought in the General Counsel’s
revised demand for production.
4. Find that CNN has failed to meet its burden of demon-
strating that any of the documents and electronically stored
information being sought in the General Counsel’s Position
Statement of October 23, 2008, would be unduly burdensome
to produce or that their production would cause a serious dis-
ruption of CNN’s normal business operations.
5. Order that CNN forthwith identify those items listed on
its revised privilege and redaction logs that are responsive to
Paragraphs 26, 36, 40, and 43 of the subpoena duces tecum and
submit those items to the administrative law judge for in cam-
era inspection pursuant to the Board’s Order in CNN America,
Inc., 352 NLRB 448 (2008).