Turner v. CBS Broadcasting Inc.

Background

The International Brotherhood of Electrical Workers Local 1200, AFL-CIO, filed a grievance and then an arbitration proceeding under its collective bargaining agreement with CBS. The dispute arose after CBS removed a long-term freelance cameraman from its referral list because another CBS employee alleged that he had touched her without consent while filming a sporting event. CBS told the cameraman that it had thoroughly investigated the complaint and determined that he was no longer eligible for future assignments.

The Union argued in arbitration that the removal was arbitrary and capricious—that is, unreasonable under the governing agreement—because CBS had not conducted a full and fair investigation and had treated the cameraman differently from other employees facing similar allegations. The Union sought to have him placed back on the referral list and receive back pay.

During the arbitration, the Union requested CBS’s internal investigation report, the investigator’s notes, other investigation materials, and the names and contact information of people interviewed or involved in the complaint. After the arbitrator issued a subpoena for those materials, CBS refused to produce some of them, asserting attorney-client privilege and work-product protection. Attorney-client privilege generally protects confidential communications made for legal advice; work-product protection generally covers materials prepared because of anticipated litigation.

Legal issue and analysis

The petition was brought under Section 7 of the Federal Arbitration Act, which allows a federal district court to help enforce a subpoena issued by an arbitrator. The court considered whether it could address CBS’s privilege objections when deciding whether to enforce the subpoena.

The court held that it had discretionary authority to consider objections based on Federal Rule of Civil Procedure 45(d)(3)(A)(iii), which concerns subpoenas seeking privileged or otherwise protected material. But the court emphasized that it was not required to consider those objections. Arbitration policy generally favors leaving discovery and evidence questions to the arbitrator, and the court warned that a full judicial review of those questions could turn a subpoena-enforcement proceeding into an appeal of an arbitration discovery ruling.

The court declined to decide the merits of CBS’s privilege claims. CBS was a party to the collective bargaining agreement that required arbitration, so the court found especially strong reasons to defer to the arbitrator’s decision. The court also concluded that the arbitrator’s apparent rejection of CBS’s privilege arguments was not arbitrary. The Union had argued that CBS placed the investigation at issue by relying on it as the reason for removing the cameraman, and the court stated that CBS’s counterarguments were closely tied to the underlying arbitration dispute.

Privacy protections and disposition

CBS alternatively asked to redact the names of the complainant and nonmanagement witnesses. CBS argued that disclosure could expose those people to retaliation and discourage future cooperation with internal investigations. The Union argued that redaction would interfere with its ability to interview witnesses and represent the cameraman effectively.

The court granted the Union’s petition to enforce the arbitral subpoena. It directed CBS to produce the subpoenaed documents within 14 days after entry of the order. It also required the parties to submit a proposed protective order within 7 days, limiting disclosure of nonparty witnesses’ names to counsel only. The court directed the Clerk to close the case. The court did not decide whether CBS’s privilege claims were ultimately valid.