CNN America, Inc. and Team Video Services, LLC

National Labor Relations Board - Administrative Judge Opinions

Dec 1, 2008

05-CA-031828 (N.L.R.B. Dec. 1, 2008)

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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
CNN AMERICA, INC. and TEAM VIDEO
SERVICES, LLC, Joint Employers
and Case 5-CA-31828
NATIONAL ASSOCIATION OF BROADCAST
EMPLOYEES & TECHNICIANS, COMMUNICATIONS
WORKERS OF AMERICA, LOCAL 31, AFL-CIO
and Case 5-CA-33125
(formerly 2-CA-36129)
NATIONAL ASSOCIATION OF BROADCAST
EMPLOYEES & TECHNICIANS, COMMUNICATIONS
WORKERS OF AMERICA, LOCAL 11, AFL-CIO
SPECIAL MASTER’S REPORT AND RECOMMENDATIONS
On May 30, 2008, the Board granted CNN America’s (CNN’s) request for permission to
appeal the denial of a petition to revoke 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 administrative 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 No. 85 (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 documents and electronically stored information. There can
be no doubt that the subpoena sought a very broad range of information as indicated by its 47-
page length containing 243 separately enumerated paragraphs listing the information to be
identified, compiled, and provided. Ten days later, the Union issued 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 complex 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 recommending that the Board find that CNN had violated the Act in a variety
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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 No. 40 (March 20, 2008) (hereinafter
referred to as CNN I). This decision is of little relevance to the matter before me.
Less than 2 months later, the Board issued its order in CNN America, Inc., 352 NLRB
No. 64 (May 9, 2008) (hereinafter referred to as 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 camera 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
administrative 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 opposed 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 No. 85 (May 30, 2008),
slip op. at p. 1 (hereinafter referred to as CNN III). Observing 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 master 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,
slip op. at p. 2. 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, slip op. at p. 2. Subsequently, if issues remained unresolved, the master
was directed to make recommendations to the Board concerning 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 instructed the master to apply a balancing of interests

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, slip op. at pp. 3—5.
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analysis using the methodology described in the Federal Rules of Civil Procedure and The
Sedona Principles.3 Specifically, the analysis requires the assessment of “the competing
interests of the parties in the relevancy and necessity of the [subpoenaed] information and the
potential cost and burdensomeness of its production in the form requested.” CNN III, slip op. at
p. 2.
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 agreements in principle had been
reached that would dispose of all of the matters within the ambit of the special master’s
responsibility. Over the course of the following months, under my supervision, 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 detailed 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 withdrawal of all of
the General Counsel’s subpoena except those portions seeking “production of only those
documents identified in CNN’s second revised privilege and redaction logs” which fall within the
ambit of paragraphs 26, 36, 40, and 43 of the subpoena.6 (General Counsel’s 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

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, slip op. at fn. 7.
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
[General Counsel’s] subpoena.” (CNN’s Position Statement, p. 7, fn. 9.)
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
material. (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 withdrawn his other demands
for production because counsel for the General Counsel has, at various times, asked the trial
Continued
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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 properly before me under the terms of the Board’s set of instructions.
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 issue 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 subject 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 (DC Cir. 1998). In this case, the
Board applied this test to the items sought by the General Counsel and the Union. In definitive
language, the Board found that, “the documents requested by the subpoenas are plainly related
to the matters under litigation.” CNN III, slip op. at p. 2. As a result, I need not, and cannot,
endorse any restriction on the matters being sought based on their supposed lack of relevance.
In petitioning for revocation of the subpoenas, CNN has advanced 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 rejected by the Board in CNN III, slip
op. at p. 3, where the Board held that,
even assuming that the information sought is covered by a qualified
privilege, we conclude that the General Counsel’s need for the
information outweighs any possible intrusion on the newsgathering
process.
Similarly, the Board has already ruled on CNN’s assertions of attorney-client privilege and work-
product privilege, upholding the trial judge’s order and requiring “in camera examination of
documents to evaluate [the] claims of privilege.” CNN II, slip op. at p. 2. 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
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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 subpoena in order to suppress the evidence.”
International Union, United Auto, Aerospace, and Agricultural Implement Workers of America v.
NLRB, 459 F.2d 1329, 1338 (DC Cir. 1972). Where the demand for production has been
withdrawn, there can be no act of defiance in refusing 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 subsequent compliance.
8 In Perdue Farms, 323 NLRB 345, 348 (1997), the Board cautioned 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 practice,
constitute background material or items that could lead to other potentially relevant evidence.
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 discussed, I cannot agree with this
proposition.
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Finally, while there is no dispute among the parties regarding my task of assessing the
degree of burdensomeness of compliance 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 withdrawn 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 hundreds of concessions, he refuses to take “yes” for an answer.10
The attempt to induce me to perform an analysis of the degree of burdensomeness
involved in complying with the demands for production made in the now-withdrawn 239
paragraphs must be rejected as contrary to any notions of administrative 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 manner 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 commerce. 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 resources, 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 established 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 proceeding 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 production of subpoenaed

10 Counsel for CNN also argues that the General Counsel’s failure to include an explicit
discussion about any possible undue burdensomeness of compliance with its revised position
must lead to a finding that he has “conceded the issue as a matter of law.” (CNN Position
Statement, 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, slip op. at
p. 2. Secondly, I find the General Counsel’s revisions to constitute a powerful 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.
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documents.”11 CNN III, slip op. at p. 2. 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 necessary.” CNN III, slip op. at p. 2. 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 substantially and meaningfully revised positions now being taken by the
General Counsel and the Union. Consideration of any demands for production that have been
withdrawn falls well outside the boundaries of my mandate from the Board.12
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

11 Such a reading of this language in the mandate is consistent with what the Board has
referred to as its “longstanding policy of encouraging compromises and settlements.” Human
Development Association, 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 consider. In this
regard, I share the view of the District Judge who has 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, “certainly I
would be deciding overbreath before I would be marching into issues of privileges.” (Transcript,
p. 5, submitted to me by CNN as Attachment 3 to its Position Statement.) As the Board noted in
its order as to attorney-client privilege, CNN has raised “the broader issue” of burdensomeness.
(CNN II, slip op. at p. 2.) If any or all of the material indexed on the logs is found to be too
burdensome to produce, CNN will not be required 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 burdensome 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
burdensomeness 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
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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 material being sought to only those items listed on its privilege
logs. Counsel for the Company characterizes this limitation as follows:
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 prosecuting 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
material that General Counsel is now seeking that it has not already sought. There is no doubt
that General Counsel and the Union, with the conditional approval of the Board, are demanding
an in camera inspection of the items designated as privileged by CNN. They have gone so far
as to seek on order from 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 privileged
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 position 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 understand 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 explanatory 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, “describe the nature of the documents,
communications, or tangible things not produced or disclosed—and do so in a manner that,
without revealing information itself privileged or protected, will enable other parties to assess the
claim.” Compliance 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, U.S. v. Construction Products Research, Inc., 73 F.3d 464, 473 (2d Cir.
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encompassed in the General Counsel’s remaining demands. Second, even as to the four
paragraphs 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.
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1996), cert. denied 519 US 927 (1996).
Turning now to the procedures applied by the Board, analysis must begin with the
recognition that the Board greatly values the principles underlying the attorney-client privilege.
Thus, the Board has characterized the privilege as “fundamental,” noting that, “[w]ithout the
protection afforded by this privilege, the open communication necessary for accurate and
effective legal advice would be virtually impossible.”14 The Smithfield 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 details regarding the procedures
for evaluation of issues of attorney-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 attorney-
client privilege issues . . . . [including] the requirement 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, slip op. at p. 1, “[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 privileges.”16 I am unaware of any contention that these privilege logs lack
the detail required for such documents.

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).
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.)
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My purpose in providing this degree of background concerning 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 pp. 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 examine 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 operations for CNN. In
CNN I, slip op. at p. 1., 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
information.”
An even more detailed description of the degree of effort expended 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 compiling the privilege logs. As he describes it,
According to Counsel for the General Counsel and Local 31, CNN
has 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 Local 31 with a detailed
privilege log, identifying each document that CNN claims is subject to the
attorney-client privilege 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 creation 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 significance. In performing my assessment of the degree
of burdensomeness 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
demands for production were granted.
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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, slip op. at p. 2. [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 balancing the cost, burden, and need for electronically stored
information, 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 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). 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 (Subpoena, 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 successor or joint employer status, unlawful withdrawal of
recognition, unlawful unilateral changes, unlawfully motivated cancellation of news-gathering
agreements with [Team Video Services], and discrimination based on union activity and

17 CNN contends that the key reorganization plan that resulted in this litigation was
recommended during this meeting. Shortly thereafter, the employer made the decision to adopt
this recommendation. See, CNN America, Inc., 5-CA-31828, JD-60-08, at pp. 139—140.
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membership.” CNN II, slip op. at p. 2. (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 selected 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 underlying the decision to
reorganize the Company’s operations in a manner that caused the employer to terminate any
relationship 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 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 possibly self-serving accounts provided on the witness stand years later.
See Domsey Trading Corp., 351 NLRB No. 33 (2007), slip op. at p. 13 (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 submissions 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 prospects of the numerous individuals who have been
gravely impacted 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 resources. 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
consideration 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

18 Judge Amchan repeatedly commented to the effect that “there is little credible
documentation of what occurred,” and that CNN’s management witnesses “had trouble
remembering what transpired.” (CNN America, Inc., 5-CA-31828, JD-60-08, at p. 140.) This
makes it particularly 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 employees. (CNN America, Inc., 5-CA-31828, JD-
60-08, at p. 149.)
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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, slip op. at fn. 5.)
In its Position Statement offered in response to the General Counsel’s revised demands,
CNN again submitted this estimate 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 & 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 compliance 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 production is unduly burdensome based purely on speculation
and conjecture. The absence of any particularized allegation regarding 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, Amalgamated Lithographers of America, 352 NLRB No.
114 (2008). In that case, the respondent defended a refusal to provide information 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 identifying 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.”
352 NLRB No. 114, slip op. at p. 16. Similarly, CNN has offered no information concerning the
degree of effort or expense necessary to comply with the sharply revised demand for
information that is now before me. The absence of such particularized 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
discussion 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 viewpoint as a representative of
employees working in the broadcast industry, and from the highly personal viewpoint of the
members of the bargaining unit who lost their means of earning a livelihood. Furthermore, the
highly refined and sharply narrowed 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 is reasonably likely to yield probative evidence regarding CNN’s degree

20 The context in that case was an employer’s demand for information from a union pursuant
to Section 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 evidentiary
support. See, for example, Mission Foods, 345 NLRB 788, 791 (2005), where the Board held
that an employer’s conclusory confidentiality defense to production of information was
insufficient since, “a blanket claim of confidentiality will not satisfy the respondent’s burden of
proof.”
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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 mandates 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 indexed.
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, Attachment 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 General Counsel has not explicitly
withdrawn the demand for production of backup tapes in certain limited circumstances, this is
not the end of the story. As is true in other aspects of this inquiry, 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 indexed 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, located, 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
In its Position Statement, CNN has not specifically raised any issue regarding the
General Counsel’s demand for production 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 electronically stored items in “native form, with all metadata and

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.
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attachments intact.” (Subpoena, Attachment A, par. E.) As explained in the commentary to
Sedona, this refers to “hidden text, formatting codes, formulae, and other information associated
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 produce
reasonably accessible metadata that will enable the receiving 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 electronic 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
Counsel’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 practice 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 production 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
recommend that the Board refrain from altering the scope of the demand regarding metadata.
Finally, the Sedona Working Group has specifically addressed an aspect of the
appropriate inquiry that lurks within the framework of the Rule 26 analysis. Thus, Sedona’s
Principle 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 enforcement 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 pretrial
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 Administrative Procedure
Act does not confer a right to discovery in federal administrative
proceedings. Moreover, the National Labor Relations Act does
not specifically authorize or require the Board to adopt discovery
procedures.
Bashas’, Inc., 352 NLRB No. 82 (2008), slip op., at p. 1. [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
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primary source of delay in civil litigation and creates abundant opportunities for collateral
disputes that distract from the essential goals and functions that Congress intended the Board
to perform. 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 processes in this labor law case. This is yet another example, however, 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 respondent 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 contained 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 demanded, 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 revised
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, slip op. at p. 2, 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

22 On a personal note, I have come to labor law late in my legal career, having previously
served for a time as a judicial officer who managed and adjudicated discovery disputes on a civil
docket. In my current role, I am often struck by how much the labor law bar appears to enjoy its
work. In discussions with practitioners, the absence of discovery procedures is often cited as a
factor in this favorable climate for job satisfaction. That is consistent with my experience. Civil
discovery, 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
despite the absence of interrogatories, depositions, and the other weapons in the arsenal of
discovery.
23 The privilege log, at page 32, lists four other entries without specifying 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.
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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 & Transportation
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 require the
production of thousands of documents is also insufficient 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 relative to
possible unfair labor practices. It is presumed, by the very fact that
Respondent has such a large number of employees, 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) disruption 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.
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 Privilege and Redaction Logs, dated February 29, 2008, that are responsive to those
paragraphs.
3. Accept the Union’s withdrawal of its subpoena duces tecum 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 demonstrating 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 disruption of CNN’s normal business operations.
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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 camera inspection pursuant
to the Board’s Order in CNN America, Inc., 352 NLRB No. 64 (2008).
Dated, Washington, D.C. December 1, 2008
____________________
Paul Buxbaum
Administrative Law Judge