Equal Employment Opportunity Commission v. JBS USA, LLC

Filing 152

ORDER granting in part and denying in part 149 Motion for Reconsideration re 148 Order by Magistrate Judge Kristen L. Mix on 12/28/11.(pabcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02103-PAB-KLM
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
and
IRAQ ABADE, et al.,
Plaintiffs-Intervenors,
v.
JBS USA, LLC, d/b/a JBS Swift & Company,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s and Intervenors’ Motion for
Reconsideration and for Clarification and/or to Amend the Scheduling Order [Dkt.
#128] [Docket No. 149; Filed December 20, 2011] (the “Motion”). Defendant filed a
Response to the Motion on December 27, 2011. [#151]. The Court has reviewed the
parties’ briefing and its previous Order [#148], and GRANTS IN PART and DENIES IN
PART the Motion as follows.
I. “Clarification” of Phase I Discovery Order
Plaintiff (the “EEOC”) and the Intervenors seek clarification of the Court’s Order
Regarding Phase I Discovery (the “Discovery Order”), which was issued on December 16,

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2011. [#148]. Specifically, these parties inquire about the Intervenors’ participation in
depositions and the number of written discovery requests permitted to the EEOC and
Defendant (“JBS”) during Phase I.
In the Discovery Order, the Court stated that the “Intervenors should not be
permitted to initiate discovery regarding the EEOC’s pattern or practice claim in Phase I.”
[#148] at 9 (emphasis added). The Court further explained that the Intervenors may be
deposed as witnesses or be required to respond to written discovery requests propounded
by either the EEOC or JBS during Phase I. Id. at 11. Although these instructions appear
clear to the Court, the questions raised by the EEOC concerning the role of the Intervenors
during Phase I discovery are addressed below.
1.

As stated in the Order, the Intervenors may not initiate any discovery, either
in writing or by deposition, during Phase I.

2.

As stated in the Order, certain Intervenors’ depositions may be taken by the
EEOC and/or JBS during Phase I. Counsel for any individual Intervenor
deponent may be present at an individual Intervenor’s deposition and may
make appropriate objections.

3.

As stated in the Order, certain Intervenors, through their counsel, may be
required to respond to written discovery propounded directly to such
Intervenors by either the EEOC or JBS during Phase I. Counsel for any
individual Intervenor to whom written discovery is directed may make
appropriate objections.

4.

Counsel for the Intervenors may be present at a Phase I deposition of any
witness other than an Intervenor as observers only. In other words, counsel
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for Intervenors may not ask questions or make objections at depositions of
persons other than Intervenors during Phase I. Again, there is no barrier to
disclosure of the evidence adduced by the EEOC during Phase I to
Intervenors for use in Phase II of the case. [#148] at 9.
As set forth explicitly in the Phase I Scheduling Order, “Phase II discovery issues
will be handled by separate order or orders of the Court, as necessary.” [#128] at 22.
Hence, at this time, the Court reserves ruling on whether Intervenors may duplicate
depositions taken during Phase I when conducting discovery during Phase II. The Court
anticipates entering a comprehensive Order regarding the time for and limits on Phase II
discovery after completion of Phase I.
II. Written Discovery Limits During Phase I
In the Motion, the EEOC and the Intervenors additionally assert that the written
discovery limits imposed by the Court in the Discovery Order are “hugely disproportionate”
and “inherently unfair.” [#149] at 7. The EEOC’s and Intervenors’ position lacks merit, as
the Court has imposed identical written discovery limits on the EEOC and JBS
during Phase I.
To repeat, the Court ordered that the EEOC and JBS are each entitled to 25
interrogatories, 25 requests for production of documents and 25 requests for admission
served on each other, plus 5 interrogatories, 5 requests for production of documents and
5 requests for admission served on each individual Intervenor identified as a Phase I
witness for either the EEOC or JBS. [#148] at 11-12. The EEOC and JBS are, therefore,
entitled to exactly the same number of written discovery requests; the total number will

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depend on the number of individual Intervenors identified as Phase I witnesses by either
party. To reiterate, the EEOC and JBS each may serve a total of 75 generic written
discovery requests on each other, and each may serve a total of 15 specific written
discovery requests on each Intervenor identified by either side as a Phase I witness.
Intervenors upon whom written discovery requests are served must respond directly
through their counsel. Of course, neither the EEOC nor JBS must use all of the written
discovery to which either is entitled. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s and Intervenors’ Motion for
Reconsideration and for Clarification and/or to Amend the Scheduling Order [Dkt.
#128] [Docket No. 149; Filed December 20, 2011] is GRANTED IN PART to the extent set
forth herein, and DENIED IN PART to the extent that the written discovery limitations
imposed in the Order Regarding Phase I Discovery [#148] remain in effect.
IT IS FURTHER ORDERED that the parties shall address any further confusion
about Phase I discovery limits by calling the Court to conduct a telephone hearing.
The parties shall initiate a conference call and then, once all parties are on the line, dial the
Court at 303-335-2770.
Dated: December 28, 2011

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