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Equal Employment Opportunity Commission v. Sterling Jewelers Inc.

July 15, 2010

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFF,
v.
STERLING JEWELERS INC., DEFENDANT.



The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge

DECISION AND ORDER

This case was referred to me by Hon. Richard J. Arcara for supervision of pretrial proceedings, including preparation of a decision on non-dispositive motions [22].*fn1 Before me are the motion of plaintiff Equal Employment Opportunity Commission ("EEOC") for a protective order to prohibit a Fed. R. Civ. P. ("Rule") 30(b)(6) deposition of its representative, to strike certain discovery requests propounded by defendant Sterling Jewelers Inc. ("Sterling") and to permit it to participate in the depositions occurring in the parrallel arbitration of Jock, et al. v. Sterling Jewelers Inc., AAA Case No. 1 160 00655 08 (the "arbitration") [109], and the motion of the arbitration claimants to intervene for the limited purpose of inclusion in the protective order governing the confidentiality of the discovery to be exchanged in this case [125]. Oral argument was held on June 8, 2010 and July 9, 2010.

For the following reasons, I order that the EEOC's motion for a protective order be granted in part and denied in part, and that the arbitration claimants' motion to intervene be granted.

BACKGROUND

The EEOC commenced this gender discrimination action pursuant to Sections 706 and 707 of Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. §§2000e-5(f)(1) and (3) and 2000e-6). The complaint alleges that "since at least January 1, 2003, Sterling has engaged in unlawful employment practices throughout its stores nationwide . . . by maintaining a system for making promotion and compensation decisions that is excessively subjective and through which Sterling has permitted or encouraged managers to deny female employees equal access to promotion opportunities and the same compensation paid to similarly situated male employees" ([1], ¶7(a)), and by "maintain[ing] a system for making promotion and compensation decisions that is excessively subjective and that has a disparate impact on female retail sales employees". Id., ¶8(a).

Despite the age of this case, it is essentially at its infancy with respect to the exchange of discovery. To date, there remains a pending motion to bifurcate discovery [85] and no Case Management Order has been implemented.

Following a series of informal conferences with the parties to resolve their preliminary discovery disputes, I directed the EEOC to file this motion addressing the issues which could not be resolved [101]. The EEOC's motion seeks a protective order prohibiting Sterling from conducting a Rule 30(b)(6) deposition of the EEOC's representative, striking certain of Sterling's document requests and interrogatories, and permitting the EEOC to participate in the depositions occurring in the arbitration [109]. Thereafter, the arbitration claimants moved to intervene for the limited purpose of being included in the protective order governing the confidentiality of the discovery to be exchanged in this case [125].*fn2

ANALYSIS

A. The EEOC's Motion for a Protective Order

1. Sterling's Right to a Rule 30(b)(6) deposition

The EEOC seeks to "prohibit Sterling . . . from proceeding with its proposed deposition of EEOC, which rather than being an effort to obtain any relevant or admissible evidence, is an effort to depose EEOC's attorney's and otherwise intrude on privileged matters". EEOC's Memorandum of Law [110], p. 1. In response, Sterling argues, inter alia, that the proper method for addressing the EEOC's concerns is to allow the EEOC to assert its objections, as appropriate, at the deposition. Sterling's Memorandum of Law [117] p. 9. I agree with Sterling.

I cannot address these issues in the abstract. "Unless and until Defendants actually ask a question at the deposition that intrudes upon the deliberative process privilege or any other alleged applicable privilege, the Court finds that the EEOC's objections are premature". Equal Employment Opportunity Commission v. LifeCare Management Services, LLC, 2009 WL 772834, *2 (W.D.Pa. 2009); Equal Employment Opportunity Commission v. California Psychiatric Transitions, 258 F.R.D. 391, 398 (E.D.Cal. 2009)("To preclude the deposition at this junction is premature"); Equal Employment Opportunity Commission v. Albertson's LLC, 2007 WL 1299194, *2 (D.Colo. 2007) (same); Equal Employment Opportunity Commission v. Corrections Corporation of America, 2007 WL 4403528, *1 (D.Colo. 2007) (same).*fn3

Although the EEOC is concerned about the Rule 30(b)(6) deposition being used to reveal privileged material, at this stage I cannot conclude that there are no permissible areas of questioning for Sterling to inquire at the Rule 30(b)(6) deposition. See Corrections Corp. of America, 2007 WL 4403528 at *1 ("EEOC is not exempt from a Rule 30(b)(6) deposition"); Equal Employment Opportunity Commission v. American International Group, Inc., 1994 WL 376052, *3 (S.D.N.Y. 1994)("The disclosure of who was interviewed, what the deponent did to refresh his recollection of the facts in the case, and what facts EEOC considered concerning the defendants' defenses] does not reveal the agency's trial strategy or its analysis of the case. For example, knowing who was interviewed does not intrude upon the mental impressions of the attorney. Presumably, the interview process in an investigation includes people and information which will be discarded as the attorney begins the analysis and plans strategy. Similarly, what information a witness reviews in preparation for a deposition does not reveal the thought processes of the attorneys. Documents are reviewed by a deponent for many reasons. There is a distinct difference between asking what was reviewed as opposed to why it was reviewed"); LifeCare Management Services, LLC, 2009 WL 772834 at *2 ("The deliberative process privilege only protects the opinions, recommendations, and deliberations of the EEOC, not the underlying factual information").*fn4 At this stage, it is also impossible for me to conclude that all of the categories of inquiry listed in the Rule 30(b)(6) deposition notice (Malloy Declaration [109-2], Ex. 5) pertain only to privileged matters.

Moreover, Sterling alleges that it seeks to depose the "EEOC on the parameters of its administrative investigation." Sterling's Memorandum of Law [117], p. 10. Such inquiry may be highly relevant to its potential defenses in this case because "it is well settled that the EEOC's investigation must occur within the 'scope of the charge' - that is, it must reasonably grow out of the charge underlying it. It is also well settled that a lawsuit must be like or reasonably related to the underlying EOC [sic] charge". Equal Employment Opportunity Commission v. Jillian's of Indianapolis, 279 F. Supp. 2d 974, 979 (S.D.Ind. 2003). For example, in Jillian's of Indianapolis, the EEOC sought to prosecute a nationwide ...


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