Turner v. CBS Broad. Inc.

599 F.Supp.3d 187

Geoff TURNER, as Business Manager and ON BEHALF OF INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 1200, AFL-CIO, Petitioner,

v.CBS BROADCASTING INC., Respondent.

21-cv-3766 (JSR)

United States District Court, S.D. New York.

Signed April 25, 2022

Patricia Lynne Boland, Michael Dennis Bosso, Colleran, O'Hara & Mills L.L.P., Woodbury, NY, for Petitioner.

David B. Gordon, Gregory J. Hessinger, Lindsay Rebecca Edelstein, Mitchell Silberberg & Knupp LLP, New York, NY, for Respondent.

OPINION AND ORDER

JED S. RAKOFF, United States District Judge:

This is a petition to enforce an arbitral subpoena that seeks an internal investigation report and associated records from respondent CBS Broadcasting Inc. ("CBS"). The subpoena was issued by the arbitrator presiding over a grievance proceeding filed by the International Brotherhood of Electrical Workers Local 1200, AFL-CIO ("IBEW" or "Union"). The Union filed the arbitration on behalf of a freelance cameraman who filmed sporting events for CBS for many years but was removed from CBS's referral list for alleged sexual harassment. When it took this adverse action, CBS told the cameraman that it had "thoroughly investigated the complaint," and that it had removed the cameraman on that basis. Yet when the Union sought to subpoena the internal investigation documents, CBS refused, asserting that they are privileged. The Union then filed the instant petition, seeking to enforce the subpoena.

This petition therefore raises the novel legal issue of whether the Court is authorized to consider privilege objections to a subpoena that is the subject of a petition to enforce under Section 7 of the Federal Arbitration Act ("FAA"), 9 U.S.C. § 7. Following reassignment to the undersigned of the fully briefed petition on January 18, 2022, the Court heard oral argument on March 3, 2022. Now, having considered the issue and the written and oral submissions of counsel, the Court holds that it is authorized, though not required, to consider a respondent's privilege objections on a section 7 petition. Nonetheless, the Court declines to exercise that authority in this case and so grants the Union's petition to enforce the arbitral subpoena, subject to the confidentiality limitations set forth in the conclusion of this opinion.

I. Background

The underlying arbitration was brought by the IBEW in connection with a grievance it filed after a long-term, freelance cameraman was taken off the "referral list" of those cameramen eligible to be hired by CBS to film sports events. ECF 5 ("Pet.") ¶ 10. The cameraman was removed from the referral list because another CBS employee alleged that he had touched her without her consent during filming of the Pro-Am Golf Tournament at Pebble Beach, CA in February 2020. Pet. ¶¶ 23-36. An HR employee of CBS (the "Investigator") conducted an internal investigation of the complaint, which included interviews with the complainant and other witnesses. Pet ¶¶ 26-30. On or around June 25, 2020, the CBS director of HR informed the cameraman that CBS had completed its investigation of the allegations. The HR director further stated that CBS had "thoroughly investigated the complaint" and that the company had concluded that the cameraman was "no longer eligible for employment on any future assignments" and was "disqualified from working for any other ViacomCBS event or their affiliated or related events." Pet. ¶¶ 34-35.

The Union filed a grievance and then filed for arbitration with the American Arbitration Association ("AAA") under the collective bargaining agreement ("CBA"), seeking that the cameraman be placed back on the referral list and be provided back pay for events he used to regularly work for CBS.¹ Pet. ¶¶ 41-45. The Union argues that the cameraman's removal from the referral list was arbitrary and capricious because CBS failed to conduct a full and fair investigation and because CBS treated him differently from other employees with similar allegations against them. Pet. ¶ 41. The Court assumes for the purposes of this petition that the cameraman's arbitrary and capricious removal from the referral list would violate the relevant provisions of the CBA, although the Court's decision does not depend on that assumption. See supra n. 1.

In connection with the arbitration, IBEW's attorneys submitted an information request to CBS, seeking numerous categories of documents. See ECF 5-5. After discussions, CBS refused to produce the documents. Pet. ¶ 47. Pursuant to Rule 27 of the AAA's labor arbitration rules, the Union then asked the arbitrator to issue a subpoena for the information contained in its prior request.² See ECF 5-6. Following oral argument that necessarily concerned privilege and relevance issues, the arbitrator announced that he would sign and issue the requested subpoena to CBS, which subsequently accepted service by email. Pet. ¶¶ 52-54.

In response to the subpoena, CBS ultimately refused to provide certain documents relating to the internal investigation of the harassment complaint, maintaining its position that the documents were confidential, privileged attorney-client communications and/or attorney work product. See ECF 5-10 at 2. The Union asserted that the internal investigation documents are necessary to effectively defend the cameraman's interests in the grievance proceeding, because under the CBA the IBEW will need to show that CBS acted in an arbitrary and capricious manner in removing the cameraman from the referral list. Pet. ¶¶ 57-59.

The IBEW therefore filed the instant petition to enforce the arbitral subpoena under section 7 of the FAA, seeking the following categories of documents:

• The Investigator's investigation report.

• Any notes from the Investigator's investigation.

• Any documentation prepared in the course of the investigation of the allegations made against the cameraman.

• The names and contact information of the individuals interviewed by CBS as part of its investigation, or of the individual that made the complaint on February 9, 2020.

Pet. ¶ 56. The Union's petition argues that information is necessary to rebut CBS's assertion that it "thoroughly investigated" the complaint against the cameraman and that the investigation revealed that his behavior violated company policies. The Union further argues that there is reason to believe that other CBS employees have complained about sexual harassment investigations by the same CBS human resources employee, because those other investigations were purportedly not full and fair. See Pet. ¶¶ 63-70.

II. Discussion

A. Standard of Review

"Once it is determined ... that the parties are obligated to submit the subject matter of a dispute to arbitration, ‘procedural’ questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator." John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964). Therefore, discovery and evidentiary issues that arise in the context of a pending arbitration proceeding are committed to the discretion of the arbitrator, at least in the first instance. But since arbitrators lack the means to compel compliance with their subpoenas, the FAA provides that parties in arbitration may seek the federal courts’ assistance in enforcing arbitral subpoenas. The Union therefore filed this petition under section 7 of the FAA, which provides as follows:

[I]f any person or persons so summoned to testify shall refuse or neglect to obey said summons, upon petition the United States district court for the district in which such arbitrators, or a majority of them, are sitting may compel the attendance of such person or persons before said arbitrator or arbitrators, or punish said person or persons for contempt in the same manner provided by law for securing the attendance of witnesses or their punishment for neglect or refusal to attend in the courts of the United States.

9 U.S.C. § 7.³ It is undisputed that the arbitrator was authorized to compel pre-hearing production of documents from CBS, since it is a party to the arbitration. See Life Receivables Tr. v. Syndicate 102 at Lloyd's of London, 549 F.3d 210, 217 (2d Cir. 2008).

In opposition to the Union's petition, CBS asks the Court to decline to enforce the subpoena, arguing that it has a legal right not to produce these materials, which it asserts are subject to legal privileges. CBS argues that section 7 ’s use of "may" gives the district court discretion to decline to enforce an arbitral subpoena. ECF 16 ("Opp.") 12. It further argues that a declination would be appropriate here, because the arbitrator purportedly exceeded his authority, since "CBS and [the IBEW] did not agree that an arbitrator could disregard the law regarding the attorney-client privilege and work product doctrine." Opp. 13.

CBS's argument -- that the subpoena should not be enforced because the arbitrator's decision was rendered in manifest disregard of the law or in excess of his powers under the contract – thus relies on the familiar standard for vacating an arbitral award. See, e.g., Weiss v. Sallie Mae, Inc., 939 F.3d 105, 109 (2d Cir. 2019). But none of the cases CBS cites has applied this standard to a section 7 petition to compel a subpoena. See Opp. 12-13. Relatedly, the Second Circuit has forbidden district courts considering a petition to vacate an arbitral award from revisiting the evidentiary record, except insofar as necessary for "discerning whether a colorable basis exists for the panel's award so as to assure that the award cannot be said to be the result of the panel's manifest disregard of the law." Wallace v. Buttar, 378 F.3d 182, 193 (2d Cir. 2004). Adopting CBS's view would permit a subpoena recipient to effectively transform a section 7 proceeding into an interlocutory appeal on evidentiary issues simply by refusing to comply with a subpoena. See OBEX, 958 F.3d at 138 ("Adopting the respondents’ view would frustrate this policy by turning a district...