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Equal Employment Opportunity Commission v. Sterling Jewelers Inc

May 14, 2012


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


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 parties' cross-motions to compel [215, 218]. For the following reasons, the cross-motions are granted in part and denied in part.


The Equal Employment Opportunity Commission ("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 [Jewelers Inc. ("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).

The parties agreed that this case, including discovery, should be bifurcated, but were unable to agree whether punitive damages would be addressed during Stage I or Stage II. In his April 25, 2011 Decision and Order [169], Judge Arcara agreed with Sterling that punitive damages should be addressed during Stage II, and bifurcated this case as follows:

"Stage I will concern the production of personnel data necessary for statistical analyses of Sterling's policies and procedures, depositions of witnesses with knowledge relevant to the pattern or practice claims, such as managers familiar with Sterling's practices and policies, current or former employees who have experienced or witnessed discrimination, and statistical or other experts.

Should the trier of fact find liability regarding the pattern or practice claims, the Court will determine appropriate class-wide injunctive remedies. At that point, Stage II discovery will commence, to be followed by a Stage II trial.

Stage II discovery and trial will address issues concerning each class member's claim for relief, including whether Sterling can meet its burden of rebuttal as to each class member, and if not, the remedies to which that class member is entitled, including back pay, front pay, and compensatory and punitive damages, if any." [169], pp. 14-15.

After Judge Arcara's decision, a dispute arose as to whether Stage I discovery would include discovery into the EEOC's claim under §706 of Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. §2000e-5).*fn2 I concluded that conducting Section 706 discovery during Stage I was inconsistent with Judge Arcara's bifurcation order. October 7, 2011 Decision and Order [199], p. 8.

Following these decisions and implementation of the Stage I Discovery Plan and Case Management Order [209], the parties continued to have discovery disputes. After an informal conference with the parties to resolve those disputes, I directed the parties to file motions addressing the issues which could not be resolved [212]. These cross-motions ensued.


A. Sterling's Motion to Compel

1. Document Requests

In response to Sterling's motion to compel, the EEOC states that it "has produced all non-protected portions of the investigative files for the nineteen charges underlying this action and all other non-privileged documents relating to Stage I issues". EEOC's Brief [224], p. 7. According to the EEOC, it has also "repeatedly . . . told Sterling that all non-privileged materials currently in its possession have been produced and that [it] will continue to produce additional responsive and non-privileged materials as they become available". Id., p. 8.*fn3 I find these representations sufficient to render moot all aspects of Sterling's motion to compel directed at the EEOC's responses to its document requests, other than those challenging privilege designations or documents withheld on the basis that they relate to Stage II issues.

While Sterling argues that only a small number of the documents produced by the EEOC are responsive to its document requests (Sterling's Memorandum of Law [216], p. 5) "the discovery provisions of the Federal Rules are meant to function without the need for constant judicial intervention, and that those Rules rely on the honesty and good faith of counsel in dealing with adversaries". Hopei Garments (Hong Kong), Ltd. v. Oslo Trading Co., Inc., 1988 WL 25139, *3 (S.D.N.Y. 1988) (citing Penthouse International, Ltd. v. Playboy Enterprises, Inc., 663 F.2d 371, 390 (2d Cir.1981)). I have "no independent ability to determine whether or not [a party's] response was comprehensive and [it] cannot be required to 'prove a negative' by demonstrating that non-existent documents do not exist". Smith v. Life Investors Insurance Co. of America, 2009 WL 2045197, *5 (W.D.Pa. 2009).

Therefore, at this time I will rely on the EEOC's representations concerning its discovery production.*fn4 However, if Sterling "is able to develop evidence that this representation is incorrect, the Court will entertain an appropriate motion at that time". Id.

2. Privilege Log

In April 2010, the EEOC moved for a protective order to strike Document Requests Nos. 3, 10-14, 16, 29-30 [109]. In support of its motion, the EEOC argued that these "requests . . . explicitly call for communications squarely protected by the attorney-client privilege, common interest privilege, work product doctrine, and the Mediation Agreement", and that it "should not be required to respond to [these] improper discovery requests . . . even by providing a privilege log". EEOC's Memorandum of Law [110], pp. 17, 21. In denying this aspect of the EEOC's motion, I concluded that "[o]n their face, I do not find that the requests seek only privileged material. If the EEOC believes that responsive documents are privileged, it should - as it has done - produce a privilege log of these documents". July 15, 2010 Decision and Order [139], p. 8.

The parties disagree as to the scope of this ruling, prompting Sterling to argue that the EEOC has improperly "lodged blanket objections of various types of privilege" as to these requests. Sterling's Memorandum of Law [216], p. 10. Although I believe that my Order was clear, to avoid any future confusion, my decision was not intended to overrule the EEOC's privilege objections in their entirety. I was simply unwilling to conclude that on their face these requests sought only privileged materials. Rather than striking the requests in their entirety, I believed that it would be more prudent for the EEOC to identify responsive documents on its privilege log and to address any disputes on a document-by-document basis. According to Ms. Malloy's June 15, 2011 letter ([216-5]), this is what the EEOC has done, and as yet, Sterling has not challenged any specific documents on the EEOC's privilege log as being improperly withheld.

Sterling's only specific objection is that "[s]everal documents listed on the EEOC's amended privilege log relate to . . . 'Charging Party Information,"' and that it "is entitled to production of this 'Charging Party Information' to the extent that the identities of the persons referenced in those documents, along with relevant factual information therein, have not yet been disclosed." Sterling's Memorandum of Law [216], pp. 10-11. The EEOC responds that "it has amended its privilege log to clarify those entries" (EEOC's Brief [224], p. 7) and attaches its January 4, 2012 updated privilege log. Malloy Declaration [225], Ex. 11.*fn5 Therefore, I deny this aspect of Sterling's motion at this time, without prejudice.*fn6 To the extent that the EEOC's updated privilege log does not satisfy Sterling's concerns, including its argument that the EEOC should produce redacted documents in lieu of withholding them in their entirety, Sterling may renew its motion with identification of specific documents at issue. The EEOC's privilege log appears to also identify documents withheld on the grounds that they apply to Stage II discovery. Malloy Declaration [225], Ex. 11. If Sterling wishes to make specific challenges to any of these designations, it may do so in a renewed motion.

Sterling also argues that the EEOC should be compelled to identify information redacted from document Nos. E000002736-2787 and 2853-2858 produced as part of its December 2011 document production. Sterling's Memorandum of Law [216], Point V. However, I am unable to address the propriety of these redactions without reviewing the documents. Therefore, by May 25, 2012 the EEOC shall provide me with these unredacted documents for my in camera review, along with an explanation (copied to Sterling) of why its redactions are proper. Sterling may respond by June 1, 2012, and I will then decide that issue.

3. Electronically Stored Information

Sterling argues that while its requests encompass electronically stored information ("ESI"), the EEOC "has not produced a single email, and it has produced only a handful of documents that appear to be print-outs from databases". Sterling's Memorandum of Law [216], p. 14. In response, the EEOC represents that it "has produced all non-privileged emails from the investigation (there were approximately 20)". Malloy Declaration [225], ¶93. It explains that the "EEOC's 30(b)(6) witness testified, EEOC investigators maintain their files in paper; consequently, they print all emails and place them in the file. EEOC's witness also confirmed that that is what the investigators did in investigating these 19 charges and that the charge files are complete. The witness also testified that at the time of these investigations, most investigators communicated by mail. That correspondence - like the emails - has been produced." Id.

Sterling also argues that it "has asked the EEOC to confirm that it has searched the hard drives, network drives, e-mail accounts, personal digital assistants, and the like of relevant document custodians and preserved all electronic information contained therein", but that "the EEOC has not provided this confirmation". Sterling's Memorandum of Law [216], p. 14. The EEOC responds that it "has produced relevant ESI - in the form of spreadsheets, emails, and other electronic documents". Malloy Declaration [225], ¶94.

Nowhere does the EEOC represent that it has searched its ESI for responsive documents. Nevertheless, it appears from its representations that all ESI would be included in its paper files. I conclude that these representations are sufficient at the present time, and will not require the EEOC to undertake the substantial burden of confirming these representations by a search of its ESI. However, if during the course of discovery, Sterling learns that the EEOC's paper files may not contain the full extent of its ESI, it may renew this aspect of its motion. In the interim, the EEOC shall preserve any responsive ESI.

4. Coordination of Discovery

The EEOC objects to at least one Sterling document request "on the grounds that it is overbroad, duplicative, and unduly burdensome in that it seeks documents that Sterling already has sought through its discovery in the private arbitration proceeding". EEOC's Responses to Sterling's First Set of Requests for Production of Documents [216-1], Request No. 20. Sterling responds that "the fact that similar information may be produced in private arbitration proceedings does not ...

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