Equal Employment Opportunity Commission v. JBS USA, LLC

Filing 174

ORDER denying 169 Defendant's Renewed Motion for Protective Order to Sequester Deponents and/or Motion for Reconsideration of 2/15/12 Telephone Ruling. By Magistrate Judge Kristen L. Mix on 3/20/12.(mnfsl, )

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 Defendant’s Renewed Motion for Protective
Order to Sequester Deponents and/or Motion for Reconsideration of 2/15/12
Telephone Ruling [Docket No. 169; Filed February 24, 2012] (the “Motion”). The Motion
is referred to this Court for resolution [#170]. On March 1, 2012, the Court ordered Plaintiff
EEOC to respond to the Motion on or before March 9, 2012. On March 9, 2012, the
Intervenor Plaintiffs filed a Response in opposition to the Motion [#172]. Defendant
submitted a Reply on March 14, 2012 [#173]. Because counsel for the Intervenor Plaintiffs
retain an interest in defending their clients during the depositions occurring in Phase I, the
Court accepts the Response as filed. Ord., [#152] at 2 (“Counsel for any individual

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Intervenor deponent may be present at an individual Intervenor’s deposition and may make
appropriate objections.”). For the reasons stated below, the Court DENIES Defendant’s
Motion.
Defendant requests that the Court issue an order precluding Intervenors from
attending the depositions of other Intervenors, pursuant to Fed. R. Civ. P. 26(c)(1)(E).
[#169] at 2. Defendant is concerned that allowing Intervenors to hear the testimony of
other Intervenors will encourage the creation of “artificial evidence of a pattern” of
discrimination. Id. at 4 n.3. Defendant explains that two recent depositions conducted in
this matter reflect its concerns: one Intervenor (Ms. Ali) heard another Intervenor’s (Ms.
Sahal) testimony during a deposition regarding graffiti in a bathroom. The next day, Ms.
Ali testified about the same graffiti; however, notes previously taken by the EEOC indicate
that Ms. Ali “didn’t see any in [the] women’s bathroom.” Id. at 5-6. Thus, Defendant
asserts that “strong and compelling reasons exist to sequester” the Intervenors during their
depositions. Id. at 6.
The Intervenors argue that Defendant fails to overcome the “presumptive right”
enjoyed by party and non-party witnesses to attend depositions of other witnesses. [#172]
at 4. The Intervenors state that they have had “more than three years to discuss the
events” that allegedly took place at Defendant’s place of business, thus “there is no reason
to believe that claimants/intervenors will change their testimony after observing other
witnesses’ depositions.” Id. at 6. The Intervenors aver that just because they come from
the same country and speak the same language does not constitute an extraordinary
circumstance justifying sequestration, nor does it support Defendant’s suggestion that the
Intervenors are more likely to collaborate testimony. Id. at 8. The Intervenors point out that
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Ms. Ali and Ms. Sahal testified about different descriptions of graffiti, and in any event, the
purpose of a deposition is to obtain more facts, not only to collaborate existing facts. Id.
at 9-10.
In reply, Defendant restates its position as described in the Motion. See [#173].
Defendant emphasizes its concern that, because Phase I of this matter concerns a pattern
or practice claim, the Intervenors have an incentive for “repetitive testimony.” Id. at 4.
Witness sequestration “is not available as a matter of right in pretrial depositions.”
Visor v. Sprint/United Mgmt. Co., No. CIV.A. 96-K-1730, 1997 WL 567923, at *2 (D. Colo.
Aug. 18, 1997). Rule 26(c)(1)(E) provides that, for good cause, the Court may enter a
protective order “to protect a party or person from annoyance, embarrassment, oppression,
or undue burden or expense” by “designating the persons who may be present while the
discovery is conducted.” This provision was previously numbered as Rule 26(c)(5).
Exclusion of witnesses from depositions pursuant to this Rule should be rarely ordered, and
should be permitted only “upon a heightened showing of ‘exceptional’ or ‘compelling’
circumstances necessary to protect the deponent.” Visor, 1997 WL 567923 at *2 (citation
omitted).
The reasons proffered by Defendant in support of its request fall squarely within the
reasoning explicitly rejected by the Visor court. See 1997 WL 567923 at *3 (“Tactical
considerations such as a desire to secure the independent recollection of witnesses or
avoid the tailoring of testimony are per se not compelling and will not justify exclusion.”).
Defendant is concerned that allowing Intervenors “to listen to each others’ deposition
testimony prior to giving their own [would] necessarily increase[ ] the likelihood that they
will improperly and unduly focus on any similarities and commonalities in their
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experiences.” [#169] at 4. Perhaps this argument would be more compelling if the number
of Intervenors was significantly less than it is, or if allegations of fraud or conspiracy were
at issue. Here, there are more than one hundred Intervenors who have presumably had
multiple years of work and life experience in the same workplace and community. The
Court finds it hard to believe that deposition attendance would materially affect the quality
of the testimony in this case, considering the amount of testimony that will be taken and
discovery of documents that will be obtained. Further, Defendant may utilize other forms
of evidence to call into question the credibility of witnesses such as Ms. Ali, who Defendant
believes changed her testimony after attending the deposition of Ms. Sahal.

As

demonstrated in its Motion and Reply, Defendant has documentation that it can use to
counter Mr. Ali’s testimony regarding graffiti, if the need arises.
The decision to issue a protective order rests within the sound discretion of the trial
court. Wang v. Hsu, 919 F.2d 130, 130 (10th Cir. 1990). “Rules that limit access,
encourage secrecy or curtail participation must be strictly construed because they run
counter to the great countervailing principles of openness and participation.” Visor, 1997
WL 567923 at *2. Exercising its discretion, the Court agrees with the Intervenors that the
simple fact that they are a minority group who “all know each other” does not constitute
good cause within the meaning and purpose of Rule 26(c)(1)(E) to prohibit the Intervenors
from attending other Intervenors’ depositions. Defendant is well-equipped to use the
Federal Rules to shed doubt on witness testimony allegedly tainted by attendance at
another witness’ deposition, without Court interference in the Intervenors’ presumptive right
to be present at each others’ depositions. Accordingly,

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IT IS HEREBY ORDERED that the Motion [#169] is DENIED.
Dated: March 20, 2012

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