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November 28, 2000


The opinion of the court was delivered by: Lynch, District Judge.


The Equal Employment Opportunity Commission ("EEOC") moves for enforcement of two subpoenas issued to Morgan Stanley & Co., Inc., and Morgan Stanley Dean Witter & Co. (collectively, "Morgan Stanley"), in connection with separate charges of race and/or sex discrimination filed by four African-American women employees under Title VII of the Civil Rights Act of 1964 and/or the Equal Pay Act. Morgan Stanley argues that the subpoenas should not be enforced, or should be enforced only subject to protective orders, on three separate grounds. It argues (1) that enforcement of the first of the two subpoenas would undermine a potential settlement of the charges brought by one of the charging parties; (2) that any enforcement order should be subject to a protective order imposing certain restrictions on the EEOC's right to share the information with the charging parties and their lawyers, either because such restrictions are required by an earlier order of this Court respecting an earlier EEOC subpoena to Morgan Stanley or because such an order is independently appropriate; and (3) that the subpoenas call for irrelevant information or are unduly vague or burdensome.

Except to the limited extent discussed below, Morgan Stanley's arguments are without merit. The subpoenas will be enforced, subject to certain modifications consistent with this opinion.


The November 8, 1999, Subpoena

In June, 1999, Dawn Simmons, an African-American woman employed as an Analyst in the Derivative Products Group ("DPG") in Morgan Stanley's New York office, filed a charge with the EEOC alleging that she had been discriminated against and denied equal pay on account of her race, that she had suffered retaliatory treatment because she complained of the discrimination, and that "there has been continuous mistreatment of myself and other African-Americans in the Company." (Boyd Aff. Ex. A, at 5.)*fn1

After a mediation effort failed to produce a settlement, the EEOC served a subpoena on November 8, 1999, demanding that Morgan Stanley provide it with various categories of information. Most of the information demanded related to the personnel records of Ms. Simmons and other employees in the "IT Finance Department, and the DPG Controller's Department and/or Division" of Morgan Stanley, and to performance criteria, job descriptions, and employment records of "Junior Accountants, Analysts, Associates, Manager, or Supervisors, including Temporary Employees" in those departments. (Boyd Aff. Ex. D.) In addition, in one category of demand reaching well beyond those departments, the subpoena called for documents reflecting "all claims, formal or informal, internal or external, [of] race discrimination and harassment made against your organization during the past three (3) years" and what was done in response to such claims. (Id. ¶¶ 23-24.)

The Court will spare the reader the usual tedious history of requests for information, demands and counter-demands, productions and objections, negotiations and arguments that preceded and followed the issuance of the subpoena. Suffice it to say that by the time the EEOC moved in this Court for enforcement of the subpoena, on September 25, 2000, several classes of documents called for by the subpoena remained unproduced, and Morgan Stanley had clearly preserved its position that the subpoena was overbroad, burdensome and vague, and that any documents produced should be subject to confidentiality requirements beyond those to which the EEOC would agree.

By that time, too, Ms. Simmons, the charging party, had entered into a settlement agreement with Morgan Stanley. While the parties to that agreement insist that "the terms of the settlement are confidential" (11/13/2000 Letter, Green to Court, at 1), and the agreement itself has not been made a part of the record of this proceeding, counsel for those parties nevertheless chose to advise the Court that the agreement provides for a cash payment to Ms. Simmons, as well as relocation and vocational benefits, and is "of course, [sic] contingent on Ms. Simmons securing the withdrawal of her EEOC charge." (Id.) Ms. Simmons accordingly requested the EEOC to discontinue its investigation of her charges, but the EEOC replied that "because [the charging party] made class allegations in her charge, and because independent evidence exists to support her claim, EEOC's responsibility is to advance the public interest by continuing the investigation." (10/27/2000 Letter, Grossman to Morelli.) Since the actual text of the settlement agreement is not before the Court, and since Ms. Simmons is not a party to these proceedings, it is not appropriate for this Court to express any view about whether Ms. Simmons and Morgan Stanley have or have not finally settled any dispute between themselves. It suffices for purposes of this motion to note that Morgan Stanley has taken the position here that the dispute is not settled, because its obligations to Ms. Simmons were contingent not merely on her using her best efforts to persuade the EEOC to close its case, as she has apparently done, but on her actually securing termination of the EEOC's pursuit of the matter, which she has been unable to do. (See Tr. 14, 18.)*fn2

The June 9, 2000, Subpoena

Meanwhile, during October and November, 1999, three other African-American women employed by Morgan Stanley also filed charges, variously alleging race and/or gender discrimination in violation of Title VII, sexual harassment, retaliation, and violations of the Equal Pay Act. Each of the other three complainants work in different capacities and in different departments from Ms. Simmons. Renay Smith works as a Sales Assistant, while Helen Thompson and Allison Mucthison are employed in the Insurance Operations Department as Unit Leader and Senior Operations Clerk, respectively. As in the case of Ms. Simmons, the EEOC and Morgan Stanley engaged in a lengthy series of moves and countermoves concerning the EEOC's requests for documents, culminating in the issuance of a subpoena on June 9, 2000, Morgan Stanley's failure to provide at least some of the documents demanded, and the inclusion of this subpoena in the EEOC's September 26, 2000, application for enforcement. Like the earlier subpoena, the June 9, 2000, subpoena sought personnel records relating to the charging parties' departments and job classifications, in this instance, "Senior Insurance Operations Clerks" and "Operations Unit Leaders" in the "Insurance Service Department in the New York Branch," and "Sales Assistants assigned to Financial Advisors." Like the earlier subpoena, this one also included a broad demand for information about "all claims, formal or informal . . . alleging race or sex discrimination made against your organization" within particular time periods. (Boyd Aff. Ex. M.)

The Schieffelin Litigation

Nearly a year before Ms. Simmons filed her complaint, in November, 1998, yet another female Morgan Stanley employee, Allison Schieffelin, filed a charge of sex discrimination and retaliation with the EEOC. (There was no charge of race discrimination, and Ms. Schieffelin's race is apparently not disclosed in the present record.) Ms. Schieffelin was a higher-ranking employee than the charging parties discussed above; she was a Principal in the firm who complained that she was unfairly denied promotion to Managing Director, and she clearly alleged a widespread pattern of discrimination against women in the firm. (See Green Aff. Ex. A, at Supp. 1.)*fn3 In her case, too, the EEOC sought broad-ranging disclosure of documents from Morgan Stanley, the familiar dance of resistance and negotiation was performed, and in July, 1999, the EEOC sought enforcement of the subpoena in this Court. And in her case, too, Morgan Stanley objected to some of the EEOC's demands and argued that the EEOC should be ordered to hold any documents produced in strict confidence.

After briefing and argument,*fn4 the Honorable Denise L. Cote, District Judge, who was then sitting in the miscellaneous applications part of the Court, entered two orders. First, in an opinion filed on September 23, 1999, Judge Cote rejected Morgan Stanley's argument that the information about complaints of discrimination sought by the EEOC were irrelevant to Ms. Scieffelin's charge, ruling that the complaints

may "cast light" on Schieffelin's allegations regarding the existence of the discrimination she has allegedly experienced as well as the existence of the class-wide discrimination she describes.

EEOC v. Morgan Stanley & Co., No. M 18-304, 1999 WL 756206, 1999 U.S. Dist. LEXIS 14661, at *6 (S.D.N.Y. Sept. 23, 1999).

In addition to ordering these disclosures, Judge Cote imposed a protective order limiting the EEOC's dissemination of the information provided. Noting that the scope of the disclosure ordered was predicated on the "breadth of the investigatory power of the EEOC," in apparent contrast to the kind of discovery that might be obtainable by plaintiffs in a private civil action under Title VII, the Court ordered

that the documents and information produced pursuant to this Order shall be held strictly confidential by [the EEOC] and shall not be released or disclosed by the EEOC whether during this investigation or thereafter to the Charging Party, her attorney or anyone else whether pursuant to the Freedom of Information Act or otherwise. Nothing in this Order shall prevent EEOC from using any ...

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