CNN America, Inc.

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 BOARD 892 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 BOARD 894 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 BOARD 896 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 BOARD 898 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 BOARD 900 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 BOARD 902 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 BOARD 904 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).