Equal Employment Opportunity Commission v. Bashas' Inc.

Filing 109

ORDER that for the reasons just discussed, after considering the parties' respective proposed confidentiality orders (Docs. 107-1and 108-1,p. 2-10), the court hereby ORDERS the entry of a Confidentiality Order, which is being separately filed simultaneously herewith. Signed by Judge Robert C Broomfield on 12/8/11. (DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Equal Employment Opportunity
Commission,

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Petitioner,
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vs.
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Bashas’, Inc.,
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Respondent.

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No. CIV 09-0209 PHX RCB
O R D E R

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On September 30, 2011, this court ordered, inter alia, that

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“within ten (10) days of the date [t]hereof the parties shall file

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with the court, for its review and approval, a joint proposed

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confidentiality order.”

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added).

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such an order, the parties indicated that they were “hopeful” that

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an “extension w[ould] allow them to work through differing concerns

Ord. (Doc. 104) at 63:17-191 (emphasis

Jointly seeking an extension of time in which to submit

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For ease of reference, all citations to page numbers of docketed items
are to the page assigned by the court’s case management and electronic case filing
(CM/ECF) system.

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and jointly submit a proposed order.”

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Even with an extension, the parties were unable to “work through”

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their differences.

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Opportunity Commission (“EEOC”), and the respondent, Bashas’, Inc.,

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therefore, each submitted separate proposed confidentiality orders

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for this court’s review.

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two very divergent proposed confidentiality orders.

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See id.

Mot. (Doc. 105) at 1:18-19.

The petitioner, the Equal Employment

Consequently, the court now has before it

Discussion
I.

Need for Confidentiality Order
Before comparing the substance of those orders, the court is

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compelled to make explicit what was formerly implicit - - the need

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for a confidentiality order here extending beyond the statutory and

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regulatory safeguards already in place.

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subpoena enforcement action, those safeguards would adequately

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protect a respondent/employer’s confidentiality concerns.

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been anything but an ordinary EEOC subpoena enforcement action

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though, as thoroughly discussed in prior court orders.2

In the ordinary EEOC

This has

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Vigorously opposing this EEOC investigation, Bashas’

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maintained that this subpoena enforcement action constituted an

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abuse of process.

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the notion that the EEOC is pursuing this investigation with an

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improper motive, i.e., “to bolster the struggling Parra3

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litigation.”

Central to Bashas’ abuse of process theory is

Resp.’s Brief (Doc. 103) at 4:11 (footnote added).

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See, e.g., EEOC v. Bashas’, Inc., Doc. 104 (Sept. 30, 2011); EEOC v.
Bashas’, Inc., 2009 WL 3241763 (D.Ariz. Sept. 30, 2009); and EEOC v. Bashas’, Inc.,
2009 WL 1783437 (D.Ariz. June 18, 2009). The court assumes familiarity with those
decisions and, for the sake of brevity, adopts the relevant parts as if fully set
forth herein.
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Parra refers to the related private class action of Parra v. Bashas’,
Inc., No. CIV 02-0591, familiarity with which also is assumed.

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Ultimately, however, Bashas’ was unable to prove that theory with

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the requisite degree of proof.

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renewed Order to Show Cause (“OSC”) to enforce the subject

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subpoena, albeit with some modifications.

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Hence, the court granted the EEOC’s

Nonetheless, the hearing on that OSC heightened rather than

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allayed the court’s concerns as to the EEOC’s conduct herein.

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court cannot turn a blind eye to the strong correlation between

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setbacks for the plaintiffs in the Parra litigation and the EEOC’s

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conduct herein.

The

To be sure, Bashas’ did not establish that the

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initiation of the Commissioner’s Charge; the timing of the filing

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of this action; or the timing of other aspects of this

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investigation, such the EEOC’s requests for Bashas’ employee data,

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were tantamount to an abuse of process.

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especially the testimony of Ms. O’Neill, the Regional Attorney for

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the EEOC’s Phoenix District Office, leaves the court with grave

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concerns, however, regarding the close ties between the EEOC and

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counsel for the plaintiffs in Parra.

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court even more pause at this juncture because to comply with the

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EEOC’s subpoena, Bashas’ must produce a fairly wide range of

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employee payroll and personnel data

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previously held that the Parra plaintiffs were not entitled.

The record as a whole, and

That relationship gives the

- data to which this court

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Perhaps the subpoenaed personnel and payroll data in the

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present case is not as “exceptionally sensitive” as the employment-

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related tests in EEOC v. Aon Consulting, Inc., 149 F.Supp.2d 601

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(S.D.Ind. 2001), where the court required that such information “be

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kept confidential from the charging party.”

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added); see also EEOC v. C & P Telephone Co., 813 F.Supp. 874

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(D.D.C.1993) (permitting a limited confidentiality agreement to
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Id. at 608 (emphasis

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protect employment tests).

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herein is not as sensitive as the “personally identifiable medical

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information and records [of] other employees” in EEOC v. Alabama

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Dep’t of Youth Services, 2006 WL 1766785, at *3 (M.D.Ala. 2006),

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which the EEOC was prohibited from disclosing to the charging party

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without prior court approval.

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Likewise, arguably the subpoenaed data

Partially due to the breadth of the subpoenaed employee data

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though, potentially it is quite sensitive.

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more sensitive taking into account the close nature of the

That data becomes even

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relationship between the EEOC and counsel for the Parra plaintiffs,

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and the substantial similarity between the Commissioner’s Charge

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and the allegations in Parra.

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factors renders a confidentiality order even more of a necessity

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here than in the foregoing cases.

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fact that a non-disclosure agreement under section 83 of the

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Compliance Manual, alluded to in the EEOC’s proposed order, would

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not sufficiently protect Bashas’ interests.

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813 F.Supp. at 877 (EEOC did not adequately assure respondents that

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their interests would be protected by a section 83 non-disclosure

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agreement because it was “unclear how the EEOC effectively could

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enforce such an agreement[]”).

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this particular EEOC investigation mandate entry of a

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confidentiality order to safeguard Bashas’ interest in maintaining

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the confidentiality of its employee data.

Indeed, the combination of those two

Bolstering this finding is the

See C & P Telephone,

In sum, the unique circumstances of

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Contents of Proposed Confidentiality Orders

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In submitting its proposed order, Bashas’ explains how the

27 parties arrived at an impasse and hence the submission of separate
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Rather than engaging in any meaningful dialogue with
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1 respect to the parties’ differences, the EEOC’s stance has
2 continued to be one of intransigence.

The EEOC’s response to

3 Bashas’ proposed draft best exemplifies that intransigence.

After

4 “review[ing] prior versions of drafts circulated between” the
5 parties earlier in this litigation, the objections thereto, and
6 this court’s order requiring a confidentiality order, “Bashas’
7 prepared a revised draft of its proposed Order, . . . specifically
8 deal[ing] with” the EEOC’s concerns.

See Bashas’ Filing Regarding

9 Confidentiality Order as Ordered by Court (“Resp.’s Filing”) (Doc.
10 108) at 1:19-22.

Additionally, Bashas’ prepared a chart

11 summarizing the differences between the parties’ respective
12 proposed orders.

See Summary of Differences between Bashas’ and

13 EEOC’s Proposed Confidentiality Agreements (“Summary”) (Doc. 10814 2).

That chart also includes “Bashas’ Proposed Resolution[s][.]”

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Further, as part of its revision process Bashas’ conceded that

16 the EEOC did not have to return to Bashas’ all confidential
17 documents and copies.

Resp.’s Filing, exh. 1 thereto (Doc. 108-1)

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In response, the EEOC sent a draft order previously rejected

20 by Bashas’.

See id. at 1:26-27.

The omission of a single citation

21 was the only difference between the two EEOC drafts.
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See id. at

Evidently the EEOC did not address Bashas’ summary of

23 differences, nor Bashas’ proposed resolutions.

Instead, according

24 to Bashas’, the EEOC reiterated its “unwilling[ness] to enter into
25 any order that goes beyond the requirements of . . . FOIA [Freedom
26 of Information Act] or the confidentiality provided for in EEOC
27 regulations.”

Id. at 2:2-4.

In fact, the EEOC submitted its

28 proposed order to this court while simultaneously “maintain[ing]
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1 that no confidentiality order is needed or appropriate” here.
2 Petitioner EEOC’s Proposed Confidentiality Order (“Pet.’s Prop.
3 Ord.”) (Doc. 107) at 1:24.
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The EEOC’s proposed order (barely one page long) adheres to

5 its view that Title VII’s two prohibitions against public
6 disclosure, 42 U.S.C. §§ 2000e-5(b)4 and 2000e-8(e);5 its own
7 similar non-disclosure rule, 29 C.F.R. § 1601.226; and section 83
8 of the EEOC’s Compliance Manual,7 are sufficient “to maintain the
9 confidentiality of information contained in its investigative
10 files.”

Id. at 2:8-9.

Disclosure in violation of sections 2000e-

11 5(b) and 20003-8(e) is punishable by a fine of up to $1,000 or
12 imprisonment up to one year, or both.

In its proposed order the

13 EEOC also recognizes its obligation to comply with disclosure
14 requests made pursuant to the FOIA, 5 U.S.C. § 552, et seq.
15 id., exh. A thereto (Doc. 107-1) at 1, ¶¶ II(4); and III (6).

See
In

16 requesting entry of its proposed order, without any explanation,
17 the EEOC asserts that “[i]mposing additional burdens and restraints
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In addition to prohibiting the EEOC from making “public” its charges,
that section “also forbids the public disclosure or use in a subsequent proceeding
of any information acquired during the informal procedures.”
EEOC v. Recruit
U.S.A., Inc., 939 F.2d 746, 751 (9th Cir. 1991) (citations omitted).
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The EEOC’s proposed order mistakenly refers to 42 U.S.C. “2000-8(e)[.]”
Pet.’s Prop. Ord. (Doc. 107), exh. A thereto (Doc. 107-1) at 1, ¶ II(4). There is
no such statute so presumably the EEOC meant to refer to section 2000e-8(e). Among
other things, that section makes it “unlawful for any officer or employee of the”
EEOC “to make public in any manner . . . information obtained by the” EEOC “prior
to the institution of any proceeding . . . involving such information.” 42 U.S.C.
§ 2000e-8(e).
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Much like Title VII’s non-disclosure provisions, this EEOC regulation
provides that an EEOC charge and “any information obtained during the investigation
of” a charge of discrimination under Title VII “shall” not “be made matters of
public information” by the EEOC “prior to the institution of any proceeding under
. . . Title VII involving such charge or information.” 29 C.F.R. § 1601.22.
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That section governs the “Disclosure of Information in Open Files[.]”
EEOCCM § 83.1, 2006 WL 4673280 (emphasis omitted).

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1 . . . beyond what” the foregoing “already requires would impede its
2 ability to conduct [sic] investigation.”
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Id. at 3:6-9.

The EEOC’s response and proposed order is troubling,

4 especially in the face of this court’s September 30, 2011, order.
5 If this court were convinced that the existing statutory and
6 regulatory protections were adequate, it would not have ordered the
7 submission of a joint proposed confidentiality order.

Clearly the

8 court contemplated that the parties would jointly agree to some
9 additional protections.
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Not unexpectedly, Bashas’ proposed eight page order contains

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far more detail than does the EEOC’s.

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the differences between the parties’ orders is illuminating.

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After reviewing that summary, comparing the two proposed orders,8

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and taking into account the exceedingly rare and unique

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circumstances of this proceeding, the court finds that a

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confidentiality order substantially in the form which Bashas’

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proposes is necessary.

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Bashas’ chart summarizing

Before outlining the specific terms of Bashas’ proposed

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order, it is noteworthy that the EEOC’s proposed order does not

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include any sections corresponding to paragraphs 11 through 19 of

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Bashas’ proposed order.

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paragraphs, essentially the court will include those paragraphs in

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the form which Bashas’ proposes.

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After carefully considering each of those

Several of Bashas’ other proposed provisions warrant closer

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The order which the EEOC eventually submitted to this court differs
from the one that it provided to Bashas’ when they were attempting to agree on the
terms of a joint proposed order. The EEOC’s order for this court’s consideration
omits the final paragraph, which puts the burden on Bashas’ to identify any
documents it believes are exempt from production under FOIA. See Resp.’s Filing
(Doc. 108), exh. 3 thereto (Doc. 108-3) at 3, ¶ III(8).

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scrutiny though.

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“confidential information” and “confidential commercial

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information.”

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“mean[] any document designated in good faith by counsel as

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confidential in accordance with the terms of this Order[,]”

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Resp.’s Prop. Ord. (Doc. 108-1) at 3:5-7, ¶ I(c), whereas the

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EEOC’s proposed order does not define “confidential information.”

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Nor does it allow for a document to be designated as such.

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Instead, the EEOC’s proposed order refers only to the narrower

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category of “[c]onfidential commercial information[,]” which it

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vows not to disclose “except in accordance with 29 C.F.R.

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§ 1610.19[,]” Pet.’s Prop. Ord. (Doc. 107-1) at 2, ¶ III(7)

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(emphasis added), governing “[p]redisclosure notification

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procedures for confidential commercial information.”

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§ 1610.19.

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exempt for disclosure under [FOIA exemption four], because

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disclosure could reasonably be expected to cause substantial

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competitive harm.”

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confidential information in general, FOIA specifically exempts

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from disclosure “trade secrets and commercial or financial

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information obtained from a person and privileged or

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confidential[.]” 5 U.S.C. § 552(b)(4).

The first pertains to the distinction between

Bashas’ defines “confidential information” to

29 C.F.R.

That type of confidential information is “arguably

29 C.F.R. § 1610.19(a)(1).

Unlike

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So that information other that strictly “commercial” may be

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designated as “confidential,” Bashas’ proposed order allows “the

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producing party [to] designate [a] document as Confidential

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Information.”

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Paragraph 13 of that order includes a process for objecting to the

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“Confidential Information” designation.

Resp.’s Prop. Order (Doc. 108-1) at 3:17-18, ¶ 3.

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Basically, that paragraph

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allows for written objections if a party wishes to challenge the

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“Confidential Information” designation.

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cannot resolve the issue, after the mandatory “filing] [of]

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simultaneous briefs, not to exceed two pages[,]” the court will

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decide the confidentiality issue.

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And, if the parties

See id. at 7:18, ¶ 13.

Bashas’ proposed resolution regarding the designation of

7 “Confidential Information” and objections thereto differs from what
8 its proposed order actually states in one significant way.

Bashas’

9 proposed resolution requires the parties to “confer in good faith
10 in an attempt to resolve the matter” of confidentiality
11 designations, Summary (Doc. 108-2) at 2, but its proposed order
12 omits that language.

The court will import that good faith

13 requirement into paragraph 13 of the confidentiality order adopted
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Another significant issue pertains to the scope of disclosure

16 of confidential information.

The EEOC’s proposed order does not

17 limit to whom it may disclose confidential information.

The EEOC’s

18 order does not even require that a witness or expert agree not to
19 disclose confidential information.
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Bashas’ proposed order, on the other hand, specifically states

21 that “[n]o party shall disclose the content of any document marked
22 ‘confidential,’ except to: attorneys, testifying witnesses (and
23 only upon an agreement to keep it confidential), court reporters,
24 the court, the parties, and testifying experts.”
25 108-2) at 2, (citation omitted).

Summary (Doc.

“Other than [those] categories

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28 permission from Bashas’.”

Id.

To address the EEOC’s “concerns
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1 about being able to release the file or portions thereto to
2 ‘aggrieved parties[,]’” Bashas’ proposed order contains some
3 further limitations on disclosure of confidential information to
4 “aggrieved persons.”9

Resp.’s Filing (Doc. 108) at 2:8-9.

5 limitations are set forth in full below at paragraph 4(g).

Those
The

6 EEOC did not object or in any way indicate its disagreement with
7 that paragraph.

Accordingly, the confidentiality order herein will

8 include that paragraph.
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One other paragraph in Bashas’ proposed order warrants

10 specific consideration – requests to the EEOC for documents which
11 Bashas’ has identified as confidential under FOIA.

After closely

12 examining paragraph nine, pertaining to that issue, the court will
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If upon completion of the EEOC’s investigation
and prior to the completion of any subsequent
litigation, it the EEOC receives a request for
documents identified by Bashas’ as Confidential
pursuant to the Freedom of Information Act (“FOIA”),
the EEOC agrees shall to provide Bashas’ with notice
of such request so that Bashas’ has an opportunity to
object to its disclosure under one of the exemptions
to the Act. The EEOC shall provide Bashas’ with such
notice (through its counsel), including the wording of
the request and the identity of the person making the
request, within five (5) business days of a FOIA
request. Simultaneously therewith the EEOC shall notify
the requester that notice and opportunity to comment
are being provided to Bashas’. Bashas’ shall respond
to the EEOC’s notice within five (5) business days,
providing the EEOC with a detailed statement of its
objections to disclosure. The EEOC shall consider
carefully any such objections submitted by Bashas’.
If the EEOC determines that FOIA requires it to disclose
the Confidential Information despite Bashas’
objection(s), it shall promptly notify Bashas’ and the

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Consistent with Title VII and its proposed order, presumably Bashas’
means “aggrieved persons,” as distinguished from “aggrieved parties.”
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The court is striking all language with a line through it. Underlining
denotes added language.

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requester of such decision and. The EEOC shall not
respond to any such FOIA request until Bashas’ has the
opportunity to assert its objection(s)and seek a
protective order from the this Ffederal District
Court to the extent allowed by law,. Bashas’ shall
assert such objection(s), if any, and seek a protective
order, if any, within a time period of at least fourteen
(14) days after such notification is actually received
by Bashas’.
Resp.’s Prop. Ord. (Doc. 108-1) at 6:9-26, ¶ 9 (as modified).

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For the reasons just discussed, after considering the

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parties’ respective proposed confidentiality orders (Docs. 107-1

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and 108-1,p. 2-10), the court hereby ORDERS the entry of a

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Confidentiality Order, which is being separately filed

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simultaneously herewith.

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DATED this 8th day of December, 2011.

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Copies to counsel of record

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