Equal Employment Opportunity Commission v. DolGenCorp LLC

Filing 53

MEMORANDUM Opinion and Order Signed by the Honorable Andrea R. Wood on 7/29/2014. Mailed notice (ac, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
v.
DOLGENCORP, LLC d/b/a DOLLAR
GENERAL,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

No. 13-cv-04307
Judge Andrea R. Wood

MEMORANDUM OPINION AND ORDER
This Memorandum Opinion and Order provides additional detail regarding the oral ruling
by the Court on July 10, 2014 granting the motion by Plaintiff U.S. Equal Employment
Opportunity Commission (“EEOC”) to compel production of documents and responsive data
(the “Motion”) (Dkt. No. 53.). EEOC brought this lawsuit to challenge certain hiring practices of
Defendant Dolgencorp, LLC (“Dollar General”), a corporation that operates a chain of discount
retail stores, under Title VII of the Civil Rights Act of 1964. In its Complaint, EEOC alleges
that, since at least 2004, Dollar General has engaged in a practice of conducting criminal
background checks on potential employees that has a disparate impact on African-American job
applicants. EEOC’s Motion seeks to compel Dollar General to produce two broad classes of
documents: (1) conditional hire and background screen data for the time period 2004 to 2008
(the “Pre-2008 Information”), and (2) information relating to Dollar General’s purported
business necessity for performing criminal background checks on job applicants. For the reasons
set forth below, the Motion is granted.

BACKGROUND
EEOC originally requested the Pre-2008 Information and information regarding Dollar’s
General’s purported business necessity for its criminal background checks in its First Set of
Interrogatories and First Request for Production of Documents. In each of its discovery
responses, Dollar General objected to providing any information from prior to 2008. Dollar
General also refused to provide information in response to EEOC’s discovery requests regarding
Dollar General’s possible business necessity defense, asserting that it should not have to provide
such discovery until after EEOC provides evidence of a disparate impact.
On March 19, 2014, EEOC sent a letter to Dollar General pursuant to Local Rule 37.2
that, in relevant part, again asked Dollar General to produce the Pre-2008 Information and
complained about Dollar General’s refusal to produce discovery relating to its purported business
necessity. In its letter, EEOC asserted that, “[n]o plaintiff is required to prevail on a portion of its
prima facie case before being permitted to obtain discovery related to its entire case in chief.”
(Dkt. No. 40, Ex. C at 1-2.) In a responsive letter dated March 26, 2014, Dollar General
expressed concerns regarding “the expense and burden of the requests made,” and again
demanded that EEOC provide evidence of disparate impact. (Dkt. No. 40, Ex. D.) Dollar General
also requested a Local Rule 37.2 conference to further discuss these issues. (Id.) The parties
engaged in a telephone conference on April 3, 2014, but were unable to reach agreement. 1 EEOC
filed the Motion on April 22, 2014.
DISCUSSION
The Federal Rules of Civil Procedure allow parties to “obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense.” See Fed. R. Civ. P.
1

EEOC characterizes the parties’ discussion on April 3, 2014 as representing an “impasse.” (Mot. at 3,
Dkt. No. 40.) Dollar General disputes that characterization. (Resp. to Mot. at 9, Dkt. No. 42.)

2

26(b)(1). “Requests for discovery are relevant if there is any possibility that the information
sought may be relevant to the subject matter of the action.” Rubin v. Islamic Republic of Iran,
349 F. Supp. 2d 1108, 1111 (N.D. Ill. 2004) (citing Meyer v. S. Pac. Lines, 199 F.R.D. 610, 611
(N.D. Ill. 2001)). The “burden rests upon the objecting party to show why a particular discovery
request is improper.” Kodish v. Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447, 450 (N.D.
Ill. 2006) (citation omitted). However, a court may limit discovery if it determines that the
burden of the discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(2)(iii); Wiginton v. CB
Richard Ellis, Inc., 229 F.R.D. 568, 571 (N.D. Ill. 2004). To make such a determination,
reviewing courts “consider what has been dubbed the proportionality test of Rule 26(b)(2)(iii):
the needs of the case, the amount in controversy, the resources of the parties, the importance of
the issues at stake in the litigation, and the importance of the proposed discovery in resolving the
issues.” Id.
As an initial matter, the Court rejects Dollar General’s argument that the issues presented
in the Motion are not ripe for determination because EEOC failed to comply with Local Rule
37.2. Under that rule, the Court will not hear motions to compel discovery unless the movant has
engaged in a good faith effort to resolve differences. N.D. Ill. L.R. 37.2. According to Dollar
General, it “tried to reach an agreement with the EEOC . . . by offering to produce post-2008
data . . . so the EEOC could analyze it for disparate impact. Defendant repeatedly stressed it was
willing to negotiate further if the EEOC found a specific reason why the post-2008 data was
insufficient for its purposes . . . .” (Def’s Resp. at 3, Dkt. No. 43.) However, the Court does not
perceive Dollar General’s offer as a good faith attempt to resolve the parties’ differences by
compromise, and thus does not fault EEOC for concluding that the parties had reached an
impasse. In essence, Dollar General offered to produce the same post-2008 data that it had

3

already agreed to provide in its initial responses to EEOC’s discovery requests. Further, as
discussed below, there was no valid basis for Dollar General to attempt to impose a burden of
proof on EEOC at the discovery stage by conditioning production of otherwise discoverable
information on EEOC first establishing a disparate impact. Accordingly, EEOC’s Motion is ripe
for determination.
The Court now proceeds to the merits of EEOC’s Motion. First, there is no doubt that the
Pre-2008 Information is relevant to EEOC’s claims. The Complaint alleges that Dollar General’s
criminal background checks have led to a disparate impact on African-American job applicants
during the time period from 2004 to the present. (See Compl. ¶¶ 15, 17-19, Dkt. No. 1.) Thus, the
request for Pre-2008 Information is relevant and “reasonably calculated to lead to the discovery
of admissible evidence.” See Fed. R. Civ. P. 26. In fact, the information is necessary for EEOC
to establish its affirmative case for the pre-2008 time period. See Watson v. Ft. Worth Bank &
Trust, 487 U.S. 977, 994 (1988) (plaintiff in disparate impact case “must offer statistical
evidence of a kind and degree sufficient to show that the practice in question has caused the
exclusion of applicants for jobs or promotions because of their membership in a protected
group”).
Dollar General’s arguments against producing the Pre-2008 Information are without
merit. Dollar General first argues that production of the Pre-2008 Information is “unnecessary”
because EEOC can use data from 2008 and later to extrapolate what it needs for the earlier
period. This argument is not supported by the law. The EEOC complains of disparate impact for
the period from 2004 to the present, and it cannot prove its affirmative case for this entire span of
time without the Pre-2008 Information. See King v. Gen. Elec. Co., 960 F.2d 617, 626 (7th Cir.

4

1992) (“[S]tatistical evidence cannot serve as a basis for proving discrimination beyond the time
period analyzed.”).
Dollar General also fails to demonstrate that the burden and expense of producing the
Pre-2008 Information is disproportionate to its likely benefit under Rule 26(b)(2)(iii). Dollar
General contends that production of the Pre-2008 Information would require it to expend
approximately 160 man-hours and $16,000. 2 (Def’s Resp. at 6-7, Dkt. No. 43.) Although these
costs are significant, the Court finds that they are not disproportionate in light of the importance
of the Pre-2008 Information to the resolution of this case. Nor is the estimated cost
disproportionate given the importance of this case and the amount in controversy. As alleged in
EEOC’s complaint, Dollar General’s criminal background checks affected approximately 8,400
African-American employees over a 3-year period (Compl. ¶ 15, Dkt. No. 1), which corresponds
to approximately 25,000 employees for the entire period from 2004 to the present. Thus,
regardless of which party prevails, the case could serve the important purpose of clarifying the
legality of an employment practice that has affected tens of thousands of job seekers.
Furthermore, EEOC seeks a permanent injunction and back pay (with prejudgment interest) for
the affected employees. (Id. at 6.) Although EEOC does not provide a specific damages
calculation in the Complaint, it is clear that the amount in controversy is significant. As Dollar
General has not met its burden of showing that production of the Pre-2008 Information would be
disproportionate under Rule 26(b)(2)(iii), it must produce this information. 3

2

Dollar General asserts that it would need to spend this amount “to obtain only a small portion of the pre2008 data requested by the EEOC.” (Def’s Resp. at 6-7, Dkt. No. 43.) However, Dollar General bases its
estimated time of compliance on the declaration of Dolgencorp employee Leslie Cheesman. (Dkt. No. 43
at Ex. A.) Ms. Cheesman’s declaration does not indicate that the 160 hour figure would allow Dollar
General to obtain “only a small portion” of the Pre-2008 Information. (See id. ¶ 5.)
3

The cases Dollar General cites in support of its contention that production of the Pre-2008 Information
would be unduly burdensome do not support a contrary result. In Brodsky v. Humana, Inc., No. 08 C

5

The Court also finds that information relating to Dollar General’s asserted business
necessity for its criminal background checks is relevant and must be produced. Dollar General
argues that EEOC is not entitled to this information at this stage of the litigation because the
asserted business necessity constitutes an affirmative defense. (Resp. at 10-11, Dkt. No. 43.) This
argument is untenable: the discovery rules explicitly allow parties to “obtain discovery regarding
any nonprivileged matter that is relevant to any party’s claim or defense.” See Fed. R. Civ. P.
26(b)(1) (emphasis added). Dollar General has consistently indicated that it will assert a business
necessity defense, and EEOC is entitled to discovery regarding that defense. Dollar General next
argues that EEOC should first be required to provide evidence of disparate impact prior to
receiving discovery on business necessity issues. But this position is contrary to one of the most
fundamental premises of discovery: that the “burden rests upon the objecting party to show why
a particular discovery request is improper.” See Kodish, 235 F.R.D. at 450. The Court declines to
upend that well-established principle by requiring that EEOC assume the burden of proof at the
discovery phase in order to take discovery regarding Dollar General’s affirmative defense. 4

50188, 2009 WL 1956450 (N.D. Ill. July 8, 2009), the court denied a motion to compel the defendant to
respond to various discovery requests because full responses would entail anywhere from six weeks to
two years of document review and cost between $25,000 and $80,000. Id. at *3. By Dollar General’s own
admission, the time and expense it would incur to produce the Pre-2008 Information would not come
close to these figures. Likewise, the court in United Consumers Club, Inc. v. Prime Time Mktg. Mgmt.
Inc., No. 2:07 CV 358, 2009 WL 3200540 (N.D. Ind. Sept. 25, 2009) denied a motion to compel as
unduly burdensome where complying with the relevant document request would entail $750,000 in costs
and 200–500 hours of labor. Id. at *5-6. Finally, in Kleen Prods. LLC v. Packaging Corp. of Am., No. 10
C 5711, 2012 WL 4498465 (N.D. Ill. Sept. 28, 2012), the court granted a protective order for a discovery
request that would have required 800 man hours for compliance. Id. at *9. The court in that case also
found that the information being sought was available through deposition testimony, and thus the
requested discovery would be duplicative and cumulative. Id. at *11-12. Here, Dollar General does not
suggest a less burdensome method of providing EEOC with the equivalent of the Pre-2008 Information.
4

The Court also notes that Dollar General’s proposal of a threshold evidentiary showing by EEOC runs
contrary to the scheduling order that Dollar General, jointly with EEOC, submitted to the Court. That
joint scheduling order specified that “all fact discovery for the liability phase [would] be completed by
September 15, 2014.” (Dkt. No. 36 at 2-3.) Earlier in that document, the parties noted that both EEOC’s
disparate impact case and Dollar General’s business necessity case would be covered in the liability phase

6

Finally, the Court declines to shift the cost of Dollar General’s production to EEOC. The
general presumption in discovery is that responding parties must bear the expense of complying
with discovery requests. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978). This is
true even in the case of electronic discovery. Zubulake v. UBS Warburg LLC, 217 F.R.D. 309,
316 (S.D.N.Y. 2003). Cost shifting for production of electronically stored information may be
appropriate when the data is inaccessible, such as when it is recorded on backup tapes. Kleen
Prods. LLC v. Packaging Corp. of Am., No. 10 C 5711, 2012 WL 4498465, at *17 (N.D. Ill.
Sept. 28, 2012); Clean Harbors Envtl. Servs., Inc. v. ESIS, Inc., 09 C 3789, 2011 WL 1897213,
at *2 (N.D. Ill. May 17, 2011). Here, however, Dollar General does not argue that the requested
information is inaccessible, nor does the attached Declaration of Leslie Cheesman support such
an argument. Accordingly, Dollar General shall bear its own cost of producing the discovery
addressed in the Motion.
CONCLUSION
For the foregoing reasons, EEOC’s Motion is granted. Dollar General shall produce the
Pre-2008 Information and documents relating to its business necessity defense. In addition,
Dollar General shall bear its own costs in complying with this Order.
ENTERED:

Dated: July 29, 2014

__________________________
Andrea R. Wood
United States District Judge

of this case. (Id. at 2.) Nowhere does the scheduling order purport to break up fact discovery into two
phases, and the Court declines to impose such a division at this stage of the litigation.

7