U.S. Equal Employment Opportunity Commission v. Goodwill Industries of the Greater East Bay, Inc. et al

Filing 33

ORDER RE DEPOSITION OF CHRISTOPHER GREEN re 32 Discovery Letter Brief re Depo of Christopher Green filed by U.S. Equal Employment Opportunity Commission. Signed by Judge Yvonne Gonzalez Rogers on 10/27/2017. (fs, COURT STAFF) (Filed on 10/27/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 8 9 10 United States District Court Northern District of California 11 12 Plaintiff, v. Case No. 4:16-cv-07093-YGR ORDER RE DEPOSITION OF CHRISTOPHER GREEN Dkt. No. 32 GOODWILL INDUSTRIES OF THE GREATER EAST BAY, INC., CALIDAD INDUSTRIES, INC., Defendants. 13 14 Plaintiff in the above-captioned case has moved to quash the deposition subpoena served 15 by defendants on Christopher Green. (Dkt. No. 32.) Plaintiff takes the position that the deposition 16 of Green will be burdensome on plaintiff, duplicative of information contained in the investigate 17 file already produced to defendants, and may likely invade the governmental deliberative process 18 privilege. The Court disagrees. 19 The deliberative process privilege protects “documents reflecting advisory opinions, 20 recommendations and deliberations comprising part of a process by which government decisions 21 and policies are formulated.” Carter v. U.S. Dep’t of Commerce, 307 F.3d 1084, 1089 (9th Cir. 22 2002) (internal quotation marks omitted). In order to be protected by the deliberative process 23 privilege, a document must be both “predecisional” and “deliberative.” Assembly of the State of 24 Cal. v. U.S. Dep’t of Comm., 968 F.2d 916, 920 (9th Cir. 1992). A “predicisonal” document is 25 one “prepared in order to assist an agency decisionmaker in arriving at his decision” and may 26 include “recommendations, draft documents, proposals, suggestions, and other subjective 27 documents which reflect the personal opinions of the writer rather than the policy of the agency.” 28 Id. (internal quotation marks omitted). A predecisional document is part of the “deliberative 1 process” if “the disclosure of [the] materials would expose an agency’s decisionmaking process in 2 such a way as to discourage candid discussion within the agency and thereby undermine the 3 agency’s ability to perform its functions.” Id. (alteration in original) (internal quotation marks 4 omitted). While factual material generally is not considered deliberative, the relevant inquiry is 5 whether “revealing the information exposes the deliberative process.” Id. at 921. Here, defendants have represented to plaintiff and the Court that their line of questioning at 6 7 Green’s deposition will focus on the interviews he conducted, in order to clarify what information 8 was obtained and the responses of those interviewed. (Dkt. No. 32.) Moreover, defendants seek 9 clarification on Green’s handwritten notes and typewritten interview summaries. (Id.) Depositions of EEOC investigators taken for clarification purposes are routinely permitted. See, 11 United States District Court Northern District of California 10 e.g., EEOC v. Cal. Psychiatric Transitions, 258 F.R.D. 391, 397–98 (E.D. Cal. 2009) (permitting 12 deposition of EEOC investigator to go forward in order to clarify factual information contained in 13 his investigative file and to answer questions about ambiguous factual references contained 14 therein); see also, e.g., EEOC v. LifeCare Mgmt. Servs., LLC, No. 02:08-cv-1358, 2009 WL 15 772834, at *2 (W.D. Pa. Mar. 17, 2009) (denying motion to quash subpoena of EEOC 16 representative because defendants sought only to obtain facts acquired by the EEOC during its 17 investigation and not any information related to the EEOC’s opinions, analysis, or legal theories 18 regarding the charge). Because revealing the information sought by defendants would not expose 19 plaintiff’s deliberative process, the deposition of Green can move forward. In response to plaintiff’s concerns about burden, defendants have indicated that the 20 21 anticipated questions are limited and that defendants are amenable to deposing Green in San 22 Diego. (Dkt. No. 32.) Accordingly, the deposition can proceed on the date noticed in the 23 deposition subpoena on the following conditions: 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ 2 The deposition shall take place in San Diego, California and shall not exceed three (3) 1 2 hours. 3 This Order terminates Docket No. 32. 4 IT IS SO ORDERED. 5 Dated: October 27, 2017 YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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