Equal Employment Opportunity Commission v. Bashas' Inc.

Filing 67

ORDER denying 59 Motion to Compel Discovery Response and Motion forConfidentiality Order; denying as moot 66 Motion to Strike. Signed by Judge Robert C Broomfield on 9/2/10.(DMT)

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E q u a l Employment Opportunity Commission v. Bashas' Inc. D o c . 67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WO I N THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF ARIZONA E q u a l Employment Opportunity) Commission, ) ) Petitioner, ) ) vs. ) ) B a s h a s ' , Inc. ) ) Respondent. ) ) N o . CIV 09-0209-PHX-RCB ORDER P e n d i n g before the court is a "Motion to Compel Discovery R e s p o n s e s and Motion for Confidentiality Order" by respondent, B a s h a s ' , Inc. (Doc. 59), which petitioner, the Equal Employment Opportunity Commission ("EEOC"), opposes (Doc. 62). Also p e n d i n g is EEOC's recently filed "Motion to Strike" (Doc. 66) B a s h a s ' reply memorandum. Background A s s u m i n g familiarity with the fairly lengthy and contentious h i s t o r y of the present dispute, there is no need to repeat that e n t i r e history herein. This is especially so considering the In its r e l a t i v e l y narrow scope of Bashas' motion to compel. m o t i o n , Bashas' requests that this court order the EEOC to: "(1) Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 p r o d u c e all responsive telephone records, including incoming calls; and (2) produce a complete privilege log for its d i s c o v e r y responses." Mot. (doc. 59). Additionally, because i t believes that EEOC "`representatives'" have impermissibly (1) c o n t a c t e d Bashas' employees, including management, and (2) made p u b l i c information about the EEOC's investigation, Bashas' seeks a confidentiality order. T e l e p h o n e Records A s to Bashas' request for production of telephone records, initially Call[s][.]" the EEOC provided only records for "Outward See id. at 7:23; and at 8:20. I. Mot., exh. 9 thereto (Doc. 59-9) at EEOC-Bl-00025 In responding to this motion E E O C - B l - 0 0 0 2 7 (emphasis added). t o compel, the EEOC submitted the declaration of Everett Barnes, i t s "Director of Telecommunications and Networking in the Office o f Information Technology at EEOC Headquarters in Washington[,] D.C." Resp., exh. 1 thereto (Doc. 62-1) at 1, 1:24-27. Mr. B a r n e s declares that "[b]ecause the EEOC's telephone records are a byproduct of [its long distance telephone provider's] . . . b i l l i n g system[,] and there is no charge to receive an incoming t e l e p h o n e call, there are no telephone records generated for incoming telephone calls." Id. at 2, 7. Consequently, a c c o r d i n g to Mr. Barnes, "[t]he EEOC does not have any records o f incoming telephone calls for the Phoenix District Office." I d . at 3, 8. Based upon the foregoing, the EEOC responds that t h e court should deny as moot Bashas' motion to compel as to the E E O C ' s telephone records. In its reply, Bashas' notes that "[i]t was not until B a s h a s ' filed [its] Motion to Compel that the EEOC provided a -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 d e t a i l e d explanation of its production of telephone records in i t s Response." however, Reply (Doc. 65) at 5:27 - 6:1. any specific relief as Bashas' is not, the produced seeking to t e l e p h o n e records. Almost as an afterthought, in the last s e n t e n c e of its motion, Bashas' generically "requests an award of its reasonable costs and fees incurred in making this M o t i o n [ . ] " Id. at 9:21-22. II. Privilege Log T u r n i n g to the second aspect of Bashas' motion to compel, t h e privilege log, Bashas' claims despite "assert[ing] that much o f the information requested is protected from disclosure by privilege, including the attorney-client and governmental d e l i b e r a t i v e privilege," the EEOC is "ignor[ing] Bashas' request f o r a privilege log." Mot. (Doc. 59) at 9:24-26. Bashas' s t r e s s e s that it is not "suggest[ing] that the EEOC should p r o d u c e privileged documents or provide detailed information in a privilege log that would disclose the [EEOC's] work product." I d . at 10:8-10 (internal quotation marks omitted). Instead, B a s h a s ' "requests that the EEOC produce a privilege log with as much specificity as possible, that includes all responsive d o c u m e n t s identified as privileged." Id. at 10:11-13. Bashas' rationale is that the governmental deliberative p r o c e s s privilege, which it claims the EEOC has "repeatedly a s s e r t e d [ , ] . . . has limited applicabilty. Further, Bashas' reasons that it Id. at 10:12-13. debate the "cannot a p p l i c a b i l i t y of th[at] limited privilege if the [EEOC] refuses t o identify privileged documents in a privileged [sic] log." I d . at 10:23-24. Accordingly, Bashas' is seeking a court order -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 r e q u i r i n g the EEOC to "produce a complete privilege log for its d i s c o v e r y responses." Id. at 10:27-28. Basically it is the EEOC's position that because, as the r e c o r d reflects, it has "informed [Bashas'] on more than one o c c a s i o n that it has produced all responsive documents that it p o s s e s s e d [ , ] " 1 and because "[t]here is nothing to document in a p r i v i l e g e log[,]" the court should deny this aspect of Bashas' m o t i o n to compel. Resp. (Doc. 62) at 7:14-16. Bashas' replies, as it did regarding the telephone records, t h a t "it was not until [it] filed this Motion that the EEOC finally clarified that it does not have any additional r e s p o n s i v e documents to these discovery requests privileged or o t h e r w i s e [ . ] " Reply (Doc. 65) at 6:1-3. Bashas' does not seek any further In its reply, however, pertaining to a relief p r i v i l e g e log other than the generic request for attorneys' fees a n d costs noted earlier. Indeed, Bashas' devotes the bulk of its reply to arguing, f o r the first time, that it "has evidence that suggests the E E O C ' s response omitted hundreds of pages of documents provided t o the agency by Elizabeth Lawrence, attorney for the plaintiffs i n the Parra litigation, shortly after this Court denied the p l a i n t i f f s ' second attempt to certify their pay claim." (Doc. 65) at 1:19-22. by Bashas' Ms. further claims that at that Reply "[t]he EEOC Thus, documents discovery provided responses Lawrence suggest Id. other are incomplete." 1:23. p u r s u a n t to Fed. R. Civ. P. 27, "Bashas' requests that the Court 1 S e e , e.g., Resp., exh. 3 thereto (Doc. 62-1) at 1-2; id., exh. 4 t h e r e t o (Doc. 62-1) at 8:24-9:2. -4- 1 2 3 4 5 6 7 8 order the EEOC to supplement incomplete responses to its requests." Id. at 1:23-24. Bashas' attaches to its reply s i x t e e n supporting exhibits, including eight declarations from B a s h a s ' employees. All eight claim to have been approached o u t s i d e Bashas' stores by people purporting to be investigating w a g e and treatment discrimination at Bashas'. III. Confidentiality Order Bashas' motion for a confidentiality of its stores order on arises 23, from 2010. 9 activities 10 B a s h a s ' 11 c o u r t ' s outside several June the asserts denial that of immediately to following Parra bankruptcy EEOC as discovery who the plaintiffs, themselves 12 " ` r e p r e s e n t a t i v e s [ , ] ' " "identified 13 r e p r e s e n t i n g `Pat Miner, EEOC Investigator[,]'" appeared outside 14 s e v e r a l 15 A c c o r d i n g 16 e m p l o y e e s , of to Bashas' stores. those Mot. (Doc. 59) at 7:23-26. Bashas' a `case' Bashas', individuals "advis[ing] approached them of including managers, 17 a g a i n s t Bashas' and `discrimination' by Bashas'." 18 2 1 (emphasis omitted). 19 Id. at 7:20- When Bashas' attorney learned of this conduct, she contacted 20 M s . Miner right away, demanding that the EEOC discontinue such 21 c o n t a c t with Bashas' employees. 22 5 9 - 1 7 ) at 2-4. See Mot., exh. 17 thereto (Doc. At that time, Bashas' advised the EEOC of its 23 p o s i t i o n that such conduct "seemed to run afoul of 28 U.S.C. [] 24 2 0 0 0 e - 5 ( b ) ' s 2 requirement that `Charges shall not be made public 25 b y the Commission.'" Id. at 8:21-22 (footnote added); see also 26 27 28 B a s h a s ' mistakenly relies upon Title 28 of the United States Code, when t h e language which it is quoting is from Title 42 of that Code. In fact, Title 28 d o e s not contain a section 2000e. 2 -5- 1 i d . , exh. 17 thereto (Doc. 59-17) at 2-4. Bashas' further 2 a d v i s e d the EEOC that it deemed that conduct to be "contrary to 3 2 8 U.S.C. 2000e-8(e)[.]" 3 Id. at 8:23; see also id., exh. 17 4 t h e r e t o (Doc. 59-17) at 2-3. 5 is to make strictly The primary thrust of that statute any information the EEOC confidential 6 o b t a i n s as part of its investigation "prior to the institution 7 o f any proceeding [there]under[.]" 42 U.S.C. 2000e-8(e) (West 8 2003). 9 Claiming that the EEOC is in "blatant disregard [of] its own 10 i n t e r n a l confidentiality rules," Bashas' is requesting that the 11 c o u r t enter a confidentiality order as follows: 12 13 14 15 16 17 I d . at 11:3-6 (emphasis added). 18 Succinctly 19 impermissibly 20 administrative 21 s u p p o r t its position." 22 also 23 b e t w e e n Bashas' employees and EEOC investigators. 24 a d a m a n t ; its investigators are simply following their statutory 25 26 27 28 A g a i n , Bashas' mistakenly relies upon Title 28 of the United States C o d e , when obviously it intended to rely upon 42 U.S.C. 2000e-8(e). The court i s proceeding upon the assumption that Bashas' intended to rely upon 2000e-5(b) a n d 2000e-8(e) as found in Title 42 of the United States Code. 3 N o officer or employee of the [EEOC] shall make public in any manner whatever any information obtained by the [EEOC] pursuant to its authority prior to the institution of any proceeding involving such information. Any officer or employee of the [EEOC] who shall make public in any manner whatever any information in violation of this subsection shall be guilty of contempt of Court. put, seeking the "to EEOC responds the that in Bashas' the is involve Court [this] to investigation without any legal authority Resp. (Doc. 62) at 13:21-22. Bashas' depiction of the The EEOC encounters sharply disputes The EEOC is -6- 1 a n d regulatory mandate to interview witnesses. In carrying out 2 t h a t mandate, the EEOC is equally adamant that its investigators 3 a r e complying with all applicable statutes, rules, regulations, 4 and the EEOC's that own Compliance court Manual. deny Therefore, Bashas' the EEOC a 5 asserts this should motion for 6 c o n f i d e n t i a l i t y order. 7 Bashas' retorts with that despite how the EEOC depicts its 8 interviews Bashas' employees, those interviews "most 9 c e r t a i n l y w[ere] not `normal' according [to] the EEOC's own 10 g u i d e l i n e s . " Reply (Doc. 65) at 7:19-20. Bashas' then goes on 11 t o enumerate the ways in which it believes the EEOC failed to 12 f o l l o w its own "guidelines." See id. at 8:5-15. For example, 13 B a s h a s ' points to a sentence in the EEOC's Compliance Manual 14 s t a t i n g , 15 p r i v a c y . " "Interview witnesses under conditions which assure Resp., exh. 5 thereto (Doc. 62-1) at 23-3, 23.6(b). 16 B y contacting Bashas' employees "in Bashas' parking lots, . . . 17 w h e r e Bashas' customers and other members of the public were 18 c o m i n g and going[,]" Bashas' strongly suggests that the EEOC 19 v i o l a t e d that privacy provision. 20 1 1 . See Reply (Doc. 65) at 8:10- Bashas' further challenges the EEOC's failure to address 21 t h e EEOC's alleged violations of 42 U.S. C. 2000e-5(b) and 22 2 0 0 0 e - 8 ( e ) . 23 Somewhat tellingly, Bashas' acknowledges the possibility 24 t h a t the court may "choose[] not to address [its] request for a 25 c o n f i d e n t i a l i t y order in this Motion[.]" Id. at 9:12-13. In 26 t h a t event, Bashas' adds that "the EEOC's heavy-handed approach 27 t o its self-initiated charge most certainly questions the 28 l e g i t i m a c y of the administrative subpoena and Commissioner's -7- 1 C h a r g e , and demonstrates the confidentiality concerns raised in 2 t h e subpoena enforcement action." 3 4 I . Motion to Compel 5 B a s h a s ' has all the telephone records which are available Id. at 9:13-16. Discussion 4 6 f o r production from the EEOC, as the Barnes' declaration in 7 p a r t i c u l a r makes clear. Further, as the EEOC has explained, See Resp. 8 t h e r e are no documents to include in a privilege log. 9 ( D o c . 62) at 6:1 - 9:2. The court therefore denies as moot 10 B a s h a s ' motion to compel as to telephone records and a privilege 11 l o g . See Dilbert v. Potter, 2009 WL 1517734, at *8 (N.D. Cal. 12 J u n e 1, 2009) (denying as moot plaintiff's motion to compel 13 w h e r e defendant filed a declaration "stating that all medical 14 r e c o r d s in existence and responsive to Plaintiff's document 15 r e q u e s t s ha[d] been produced"); see also Miller v. Woodford, 16 2 0 1 0 WL 2850776, at *2 (E.D.Cal. July 20, 2010) (denying motion 17 t o compel document production where defense counsel verified 18 19 20 21 22 23 24 25 26 27 28 B e f o r e addressing the merits, the court is compelled to comment upon t h e timing of the EEOC's response and Bashas' reply. They are both late under the a p p l i c a b l e rules. According to the Certificate of Service attached to Bashas' m o t i o n , confirmed by the Notice of Electronic Filing ("NEF"), on July 23, 2010, B a s h a s ' filed and electronically served its motion on the EEOC. Mot. (Doc. 59) at 1 2 (Certificate of Service). Pursuant to LRCiv 7.2(c), the EEOC had "14[] days a f t e r service . . . within which to serve and file a responsive memorandum." LRCiv 7.2(c). Computing that 14 day time period in accordance with Fed. R. Civ. P. 6 ( a ) ( 1 ) , as the court must, means that the EEOC had until Friday, August 6, 2010, b y which to timely file and serve its response. The EEOC did not file and serve t h a t response until Monday, August 9, 2010, however - 3 days late. Likewise, in accordance with LRCiv. 7.2(d), Bashas' had "seven . . . days a f t e r service of the responsive memorandum to file a reply memorandum[.]" LRCiv. 7 . 2 ( d ) . The Certificate of Service attached to the EEOC's response, and confirmed b y the corresponding NEF, shows that the EEOC electronically served Bashas' with its r e s p o n s e on August 9, 2010. Resp. (Doc. 62) at 16. Therefore, computing that seven d a y time frame in accordance with Fed. R. Civ. P. 6(a)(1) means that Bashas' had u n t i l August 16, 2010, by which to timely file and serve its reply. Bashas' did not f i l e and serve its reply, however, until August 19, 2010 three days late. Partially because the parties did not mention it, the court is willing to o v e r l o o k the untimeliness of these filings. The court will not be so lenient in the f u t u r e though. 4 -8- 1 t h a t there were no responsive documents to compel). 2 I n its reply, Bashas' significantly expanded the scope of Instead of limiting its request 3 i t s initial discovery motion. 4 f o r relief to telephone records and a privilege log, as it did 5 i n its motion, in Bashas' reply it seeks to compel production 6 o f , inter alia, potentially "hundreds of pages of documents 7 p r o v i d e d to [the EEOC] by Elizabeth Lawrence, attorney for the 8 p l a i n t i f f s in the Parra litigation[.]" Reply (Doc. 65) at 1:199 21. The court declines to consider this argument made for the See Dawe v. Corrections USA, 2010 10 f i r s t time in Bashas' reply. 11 W L 1689107, at *2 (E.D. Cal. April 26, 2010) (citing Cross v. 12 W a s h i n g t o n , 911 F.2d 341, 345 (9 t h Cir. 1990))("Because these 13 a r g u m e n t s were not raised in [defendant's] initial motion their 14 i n c l u s i o n in the reply was improper."); and Schultz v. Ichimoto, 15 2 0 1 0 WL 3210764, at *1 (E.D.Cal. Aug. 10, 2010) (citing, inter 16 a l i a , United States v. Bohn, 956 F.2d 208, 209 (9 t h Cir. 1992)) 17 ( " N o r m a l l y , arguments raised for the first time in a reply brief 18 o r at the hearing on a motion are disregarded.") 19 r e a s o n 20 B a s h a s ' for is declining prejudice to to consider the this belated its The obvious argument lack of by an EEOC given 21 o p p o r t u n i t y to respond. The court, therefore, abides by its 22 p r i o r rulings herein and denies in all respects Bashas' motion 23 t o compel discovery. 24 II. 25 Motion for Confidentiality Order T h e court also denies Bashas' motion for a confidentiality but for different reasons. First, Bashas' has not 26 o r d e r , 27 p r o v i d e d a sufficient legal or factual basis for such relief. 28 B a s h a s ' has not cited to any legal authority to support the -9- 1 e n t r y of such a confidentiality order. 2 declarations contain relatively Further, the supporting detail about the little 3 d e c l a r a n t s ' encounters with EEOC investigators. Without the 4 g l o s s of counsel, those declarations show that those encounters 5 w e r e fairly innocuous. Second, the EEOC through its counsel, 6 e x p l i c i t l y recognizes that it "and its employees are bound by, 7 a n d follow, the relevant law." Resp. (Doc. 62) at 14:18-19. 8 T h i r d , Bashas' proposed confidentiality order borrows language 9 f r o m 42 U.S.C. 2000e-5(b) and 42 U.S.C. 2000e-8(e), and, 10 h e n c e , it is duplicative. 11 c o n f i d e n t i a l i t y order is Fourth, as drafted, the proposed potentially overbroad especially 12 i n s o f a r as it mandates a finding of contempt without affording 13 a n y process. Accordingly, the court DENIES Bashas' motion for 14 a confidentiality order. 15 III. 16 Motion to Strike Disregarding the arguments made for the first time in 17 B a s h a s ' reply, renders moot the EEOC's motion to strike that 18 r e p l y and its accompanying exhibits. 19 D E N I E S that motion to strike. 20 21 For the reasons set forth herein, IT IS ORDERED that: ( 1 ) the "Motion to Compel Discovery Response and Motion for The court, therefore, 22 C o n f i d e n t i a l i t y Order" (Doc. 59) is DENIED in its entirety; and 23 24 25 26 27 28 - 10 ( 2 ) the "Motion to Strike" (Doc. 66) is DENIED as moot. 1 D A T E D this 2 n d day of September, 2010. 2 3 4 5 6 7 8 C o p i e s to all counsel of record 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 11 -

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