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Equal Employment Opportunity Supplemental v. Sterling Jewelers Inc

October 7, 2011

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



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

DECISION COMMISSION, AND ORDER

On June 23, 2011 I issued a Decision and Order [183] granting in part and denying in part the motion of defendant Sterling Jewelers Inc. ("Sterling") for entry of a confidentiality order [103]. My Decision and Order directed that Sterling submit a proposed confidentiality order consistent with the decision by July 6, 2011 [183], p. 12. Sterling did so ("proposed confidentiality order") [187] and the Equal Employment Opportunity Commission ("EEOC") objects to certain aspects of the proposed confidentiality order as being inconsistent with my Decision and Order [188]. It also argues that while my Decision and Order [183] addressed the key areas of dispute, it did not address other disputed topics. Id. The claimants in the parallel arbitration of Jock, et al. v. Sterling Jewelers Inc., AAA Case No. 1 160 00655 08 (the "arbitration claimants") have filed similar objections to the proposed confidentiality order [189], and Sterling has responded [195].

To the extent clarification or expansion of my June 23, 2011 Decision and Order [183] is necessary, this decision is intended to supplement that decision.

BACKGROUND

The only procedural change since my prior Decision and Order has been that the Second Circuit reversed the decision of Hon. Jed S. Rakoff vacating the arbitration award permitting the plaintiffs to pursue class certification. See Jock v. Sterling Jewelers Inc., 646 F.3d 113, (2d Cir. 2011).

ANALYSIS

Whether or not the EEOC's objections were timely or adequately raised I will address them because they are germane to the propriety of the proposed confidentiality order.

A. Paragraphs 4 & 5: Definition of Arbitration Proceedings and Arbitration Claimants

The proposed confidentiality order defines "Arbitration Proceeding" as the proceeding captioned Jock, et al. v. Sterling Jewelers Inc., AAA Case No. 1 160 00655 08. Likewise, it defines the "private arbitration claimants" as the named claimants in the related arbitration proceeding. [187], ¶¶4, 5. The EEOC and the arbitration claimants argue that because the arbitrations may go forward on an individual basis, there is no reason to restrict the definition of arbitration claimants to only those named claimants in the class arbitration proceeding. EEOC's objections [188], pp. 1-2; arbitration claimants' objections [119] p. 2. I agree.

At this point, it is unclear how the arbitrations will proceed. Thus, paragraph 4 of the proposed confidentiality order [187] shall be amended to state that "'arbitration proceeding' means the arbitration proceeding captioned Jock, et al. v. Sterling Jewelers Inc., AAA Case No. 11 160 00655 08, currently pending before the American Arbitration Association , as well as any related individual arbitration proceedings". Likewise, I order that paragraph 5 of the proposed confidentiality order [187] be amended to state that "'private arbitration plaintiffs' means the named claimants in related arbitrations proceedings".

B. Paragraph 6: Arbitration Claimants as Signatories to the Confidentiality Order

The proposed confidentiality order omits the arbitration claimants as signatories ([167], ¶6, p. 13). The EEOC argues that the arbitration claimants should be parties to the proposed confidentiality order to "protect not only documents that Sterling may produce and that EEOC may share with the Arbitration Claimants, but will also protect confidential documents concerning the Arbitration Claimants themselves, which either Sterling or the arbitration claimants may produce". EEOC's Objections [188], p. 2; arbitration claimants' objections [189]. pp. 1-2.

The EEOC's concern over protecting Sterling's documents which it may share with the arbitration claimants is unfounded. If discovery deemed "confidential information" under the confidentiality order is provided to the arbitration claimants in this litigation, they will be bound by the confidentiality order. [187], ¶15 ("[a]ll persons to whom confidential material is disclosed pursuant to this Order will be bound by this Order").

It is also not necessary for the arbitration claimants to be parties to the confidentiality order in order to protect their privacy concerns. Under the proposed confidentiality order, all "personal or financial information subject to privacy law protection concerning . . . [Sterling's] current and former employees, or any putative member of the class of persons Plaintiff seeks to represent, including wage statements, health records or information, bank account statements, credit reports, and credit applications" are deemed to be confidential information [187], ΒΆ11(b). It also provides that "[i]f a third party provides discovery to ...


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