Equal Employment Opportunity Commission v. Burlington Northern Santa Fe Railroad

Filing 150

MEMORANDUM AND ORDER granting in part and denying in part 120 Motion to Compel; denying 122 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 4/18/14. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

)
)
)
Plaintiff,
)
)
KENT DUTY,
)
)
Plaintiff-Intervenor,
)
v.
)
)
BNSF RAILWAY COMPANY,
)
)
Defendant.
)
______________________________ )

Case No.12-02634-JWL-KGG

ORDER ON DEFENDANT’S MOTIONS TO COMPEL
Now before the Court is Defendant’s “Motion to Compel Responses to
Defendant’s First Interrogatories and First Requests for Production of Documents”
from Plaintiff EEOC (Doc. 120). For the reasons set forth below, the Court
GRANTS in part and DENIES in part this motion.1 Also before the Court is
Defendant’s “Motion to Compel Deposition Testimony” from Samuel James, an

1

Plaintiff has raised multiple objections and privileges to most of the discovery
requests at issue. More than one of the objections and privileges may apply to a
particular discovery request or document that has been withheld from production. To the
extent an objection or assertion of privileges is overruled herein in regard to a specific
discovery request, any responsive information shall be produced only to the extent it does
not fall under the protection of another privilege raised by Plaintiff that the Court has
sustained. While this may complicate the process of determining which documents are to
be produced, this analytical approach was necessary for the Court to employ based on the
manner in which these objections were grouped together in the underlying briefs.

investigator employed by the EEOC (Doc. 122). For the reasons set forth below,
the Court DENIES this motion in its entirety.
BACKGROUND
This is an employment discrimination case brought under the Americans
with Disabilities Act. Plaintiff-Intervenor Kent Duty (“Mr. Duty”) applied for a
position with Defendant railroad as a locomotive electrician. Mr. Duty was hired
subject to a medical examination. He was then denied the position after a medical
examination by Defendant opined that he is unable to perform essential functions
of the job because of a physical impairment in one of his hands.
Defendant has filed two motions to compel requesting the Court to order
Plaintiff to provide supplemental discovery responses (Doc. 120) and to order
EEOC investigator Samuel James to respond to certain deposition inquiries that he
was instructed by counsel not to answer (Doc. 122). Plaintiff has objected that
providing the information at issue would implicate the deliberative process
privilege, would improperly disclose materials regarding the EEOC’s statutorilyrequired conciliation efforts, would require disclosure of information protected by
the work-product doctrine, would improperly implicate communications and
information protected by the common interest privilege, and would require
disclosure of information protected by the attorney-client privilege. (See generally
2

Doc. 135.)
Rather than discuss each discovery request or deposition inquiry
individually, Defendant approached its motions to compel by addressing the
various categories of objections raised by Plaintiff EEOC. The Court will,
therefore, tailor its analysis accordingly.
DISCUSSION
Fed.R.Civ.P. 26(b) states that “[p]arties may obtain discovery regarding any
matter, not privileged, that is relevant to the claim or defense of any party . . .
Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.” As such,
the requested information must be both nonprivileged and relevant to be
discoverable.2
“‘Discovery relevance is minimal relevance,’ which means it is possible and
reasonably calculated that the request will lead to the discovery of admissible
evidence.” Teichgraeber v. Memorial Union Corp. of Emporia State University,
932 F.Supp. 1263, 1265 (D. Kan. 1996) (internal citation omitted). “Relevance is
broadly construed at the discovery stage of the litigation and a request for

2

Most of Plaintiff’s objections relate to issues of privilege, although relevance is
also implicated in the Court’s decision.
3

discovery should be considered relevant if there is any possibility the information
sought may be relevant to the subject matter of the action.” Smith v. MCI
Telecommunications Corp., 137 F.R.D. 25, 27 (D.Kan.1991). Stated another way,
“discovery should ordinarily be allowed unless it is clear that the information
sought can have no possible bearing on the subject matter of the action.” Snowden
By and Through Victor v. Connaught Lab., 137 F.R.D. 325, 341 (D.Kan.1991),
appeal denied, 1991 WL 60514 (D.Kan. Mar. 29, 1991).
The scope of discovery is broad, but not unlimited. If the proponent has
failed to specify how the information is relevant, the Court will not require the
respondent to produce the evidence. Gheesling v. Chater, 162 F.R.D. 649 (D.
Kan. 1995).
A.

The Deliberative Process Privilege.
1.

Discovery requests.

Plaintiff EEOC raises the deliberative process privilege in response to
Defendant’s Requests for Production Nos. 1-24, 31, and 32.3 (See generally Doc.
121-1.) The “‘deliberative process’ privilege ... protects advice, recommendations,
opinions and other material that is part of the deliberative decisionmaking

3

The Court notes that Plaintiff has, without waiving this objection, produced nonprivileged documents in response to all but one of these requests – R.F.P. No. 22, seeking
documents relating to communications with Scott Woods, DSc, PT. (Doc. 121-1, at 12-13.)
4

processes of a government agency.” Hass v. U.S. Air Force, 848 F.Supp. 926, 930
(D. Kan. 1994) (citing Covington & Burling v. Food and Nutrition Service, 744
F.Supp. 314, 318 (D.D.C.1990)). In order for the privilege to apply, the documents
at issue must be predecisional; in other words, “they must have been prepared
before the agency's decision to which they relate.” Id. (internal citation omitted).
“Next, the documents must be sufficiently deliberative; that is, they must contain
recommendations or express opinions on legal or policy matters.” Id. (citing
Nadler v. Department of Justice, 955 F.2d 1479, 1491 (11th Cir.1992)). “Purely
factual matters are not exempt, unless they are sufficiently intertwined with
deliberative matters.” Id. (citing Covington & Burling, 744 F.Supp. at 319).
Of course, as a threshold matter, the information must also be shown to be
relevant. Plaintiff EEOC argues that the information sought “has no relevance to
this action because this is a de novo proceeding on the merits of EEOC’s
allegations of discrimination not an adjudication of the propriety of the agency’s
investigation or determination.” (Doc. 135, at 6.) Defendant argues, however, that
Plaintiff misunderstands its position.
The issue is that by the very act of suing BNSF and
prosecuting a case the agency made itself a party
opponent subject to impeachment. The very act of suing
and prosecuting a case against BNSF is a representation
to any jury that hears this case that EEOC’s position on
the merits is correct. ...BNSF is entitled to challenge the
5

agency’s claimed or perceived impartiality, expertise, and
exercise of care to avoid an impermissible negative
impression arising simply by virtue of the agency’s role
and the fact that it has sued BNSF.
(Doc. 142, at 5-6.)
A similar argument was made in the case of EEOC v. JBS USA, LLC, by a
Defendant moving to compel production of internal EEOC emails relating to the
investigation of the Defendant as well as notes from the EEOC investigator. No.
10-2103-PAB-KLM, 2013 WL 5812478 (D. Colo. Oct. 29, 2013). In denying that
motion to compel, the Magistrate Judge held that
Defendant's explanation that the documents go to the
‘credibility’ of the EEOC's allegations sounds
uncomfortably like a back-door attempt to evaluate the
adequacy of the EEOC investigation, a subject which is
simply off limits. See, e.g., EEOC v. KECO Indus., Inc.,
748 F.2d 1097, 1100 (6th Cir.1984); EEOC v.
Caterpillar, Inc., 409 F.3d 831, 832–33 (7th Cir. 2005)
(holding ‘[n]o case actually holds that the scope of the
EEOC's investigation is a justiciable issue in a suit by the
EEOC’). In addition, Defendant offers no specific reason
why the investigator's post-filing notes relating to the
Charging Parties' attorneys could be relevant, and the
Court perceives none.
Second, to the extent that Defendant argues that
the requested documents contain information about ‘facts
and witnesses ... and the process [the EEOC] used to
investigate,’ the Court is unconvinced. The EEOC's
investigatory process is not relevant, for the reason cited
above. Moreover, if these types of internal emails were
routinely discoverable simply because they refer to facts
and witnesses, the deliberative process privilege would
6

be eviscerated. EEOC v. Albertson's LLC, No.
06–cv–01273–CMA–BNB, 2008 WL 4877046 at * 5
(D.Colo. Nov. 12, 2008) (holding that argument that
litigant was entitled to discover what information EEOC
obtained during its investigation prior to filing of lawsuit
as opposed to what purported evidence it put forth after
the filing of the lawsuit ‘would eviscerate the deliberative
process privilege.’) (emphasis in original). ‘A defendant
always wants the benefit of the EEOC's analysis ..., but
that alone is insufficient to overcome the important
interests of the privilege, properly asserted.’ Id.
The deliberative process privilege ‘shields
documents reflecting advisory opinions,
recommendations and deliberations compromising part of
a process by which governmental decisions and policies
are formulated.’ Trentadue v. Integrity Comm., 501
F.3d 1215, 1226 (10th Cir. 2007). The purpose of the
privilege is to ‘enhance the quality of agency decisions
by protecting open and frank discussion among those
who make them within the Government.’ Id.
The deliberative process privilege has been
properly asserted here. In the context of an EEOC
investigation, the deliberative process privilege may be
invoked to protect from disclosure predecisional
documents and other information which ‘reveal the give
and take of the consultive process’ concerning the
EEOC's investigation and its decisions regarding whether
and how to pursue an enforcement action. EEOC v.
Continental Airlines, Inc., 395 F.Supp.2d 738, 741
(N.D. Ill. 2005).
2013 WL 5812478, at *1-2.
The Requests for Production at issue specifically relate to the EEOC
charging and investigatory process (Requests Nos. 1-11, 15, 16), communications
with Plaintiff Duty prior to the issuance of his EEOC charge (Request No. 23, 24),
7

communications with BNSF employees (Requests Nos. 14, 17, 31, 32),
Defendant’s defenses, statements, or contentions (Request No. 5-7), Plaintiff’s
request for damages (Request No. 12, 13), and communications with individuals
who the Court surmises to be experts/consultants (Request Nos. 18, 19, 20, 21, 22).
(See generally Doc. 121-1, at 3-17.) Given the stated subject matter of the
document requests at issue, the Court finds the above reasoning from EEOC v.
JBS USA, supra, applying the deliberative process privilege to be sound.
Given the subject matter of these requests, the Court finds that Defendant’s
stated desire to impeach the EEOC at trial is merely an inventive attempt to attack
the adequacy of the EEOC’s investigation. The Court sees no basis in the law to
allow Defendant to do this. As such, Plaintiff’s assertion of the deliberative
process privilege in regard to the discovery requests at issue is SUSTAINED and
this portion of Defendant’s Motion to Compel (Doc. 120) is DENIED.
The Court notes that Request No. 20, and portions of Requests Nos. 21 and
22 are not deliberative in nature. Request No. 20 seeks information regarding
“amounts paid by you” to medical, technical, or specialized consultants. (Doc.
121-1, at 12.) The Court finds that such documents, which only request
information on amounts paid, cannot implicate the deliberative process of the
EEOC. The same is true of the portions of Requests Nos. 21 and 22 referencing
8

“any amounts paid to” Terry L. Cordray and Scott Woods, Dsc, PT. Even so, this
information is only relevant as it relates to Plaintiff EEOC’s deliberative process –
and that process is protected from discovery. As such, the documents are
irrelevant and will not be produced.
2.

Deposition questions.

Plaintiff’s counsel also instructed deponent Samuel James, an EEOC
investigator, not to respond to various deposition inquiries on the basis of the
deliberative process privilege. This is the subject of Defendant’s other motion to
compel. (Doc. 122.)
The deposition questions implicated relate to why the charge was moved
from the KHRC to the EEOC (Doc. 123-1, at 3), why certain interviews never
occurred (id., at 4-7), the contents and meaning of redacted sentences included in
interview notes the EEOC produced in redacted form (id., at 8-9), conclusions
regarding the function in Plaintiff Duty’s fingers and sufficiency of work
performed/tools used (id., at 10-15), and conclusions regarding the EEOC’s
investigation and recommendations for the disposition of the charge (id., at 16-19).
The Court finds these deposition inquiries to be further attempts to glean
information to attack the adequacy of the EEOC’s investigation. The Court sees no
basis in the law to allow Defendant to do this. As such, Plaintiff’s assertion of the
9

deliberative process privilege in regard to these deposition inquiries is
SUSTAINED and this portion of Defendant’s Motion to Compel Deposition
Testimony (Doc. 122) is DENIED.
B.

Conciliation Materials.
Plaintiff has raised the objection that Requests for Production Nos. 13, 15,

23-33, and Interrogatories Nos. 4, 10, and 11, in part, “call[s] for production of
documents protected by . . . federal law precluding disclosure of conciliation
materials (ADA incorporating Title VII 42 U.S.C. § 2000e-5(b)) . . . .” (See
generally Doc. 121-1, at 9-10, 13-17; Doc. 121-2, at 7, 11.) This portion of Title
VII, which Congress made applicable to the Americans With Disabilities Act,
states:
If the Commission determines after such investigation
that there is reasonable cause to believe that the charge is
true, the Commission shall endeavor to eliminate any
such alleged unlawful employment practice by informal
methods of conference, conciliation, and persuasion.
Nothing said or done during and as a part of such
informal endeavors may be made public by the
Commission, its officers or employees, or used as
evidence in a subsequent proceeding without the written
consent of the persons concerned. Any person who
makes public information in violation of this subsection
shall be fined not more than $1,000 or imprisoned for not
more than one year, or both.
42 U.S.C. § 2000e-5(b).
10

Citing the case of EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 101
S.Ct. 817, Defendant argues that as a party to an agency proceeding, it “is not a
member of the ‘public’ for purposes of the prohibition” on disclosure of this
information. (Doc. 121, at 12.) Plaintiff argues that Defendant is interpreting
Associated Dry Goods too broadly and that, without Plaintiff Duty’s consent, it
cannot produce this information. (Doc. 135, at 16-17.)
The Court does not agree with Plaintiff. The language of Associated Dry
Goods specifically addresses the portion of the statute forbidding public disclosure
of any matters arising in informal conciliation “without the written consent of the
persons concerned.” 449 U.S. 590, 598, at n.13, 101 S.Ct. 817, 822, at n. 13
(citing § 2000e-5(b)). In that context, the Supreme Court held that “[t]his phrase
suggests that the parties, the ‘persons’ whose consent would most obviously be
necessary, are not members of the ‘public’ to whom disclosure is forbidden.” Id.,
at n.13.
Plaintiff also argues that the information is irrelevant because documents it
“previously disclosed in this matter are more than sufficient to establish that the
Commission met its requirements for good faith conciliation under Tenth Circuit
law.” (Doc. 135, at 17.) This argument flies in the face of the very purpose of
discovery. It is not for the producing party to pick and choose the information on a
11

relevant subject matter it wishes to disclose and then sua sponte determine that it
has produced “sufficient” information on the issue.
Defendant has raised the issue that the EEOC did not meet its conciliation
requirements. The Court notes that the lack of good faith efforts to conciliate is not
an outright defense to liability, but rather a condition precedent to prosecuting the
action. See EEOC v. Prudential Fed. Sav. & Loan Assoc., 763 F.2d 1166, 1169
(10th Cir. 1985) (noting the Court’s failure to dismiss cases in which the EEOC
failed to fulfill its duty to conciliate); EEOC v. BNSF, No 07-734-D, 2008 WL
4845308, at *2, n.6 (W.D. Okla. June 23, 2008) (holding that the remedy for a
failure by the EEOC to conciliate is “a stay of the case until conciliation efforts are
completed, not dismissal of the case.”). Further, the Tenth Circuit has been clear
that district courts are not to “examine the details of the offers and counter-offers
between the parties, nor impose its notions of what the agreement should provide”
in deciding whether the EEOC has fulfilled its conciliation requirements. EEOC v.
Zia Co., 582 F.2d 527, 533 (10th Cir. 1978). Even so, the issue of conciliation
remains relevant to this lawsuit. See id. (holding that the EEOC may bring an
action in federal court “[o]nly if conciliation proves to be impossible” after
statutorily-mandated good faith efforts to conciliate); EEOC v. BNSF, 2008 WL
4845308, at *2, n.6 (holding that it is appropriate to stay a case to remedy the
12

EEOC’s failure to conciliate).
The Court, therefore, must determine whether the individual requests at issue
are relevant to the issue of conciliation generally without seeking to improperly
dissect the details of the conciliation, as such overly specific information becomes
irrelevant. Plaintiff raised the conciliation materials objection that Requests for
Production Nos. 13, 15, 23-33, and Interrogatories Nos. 4, 10, and 11. Each
discovery request will be discussed in turn.
1.

Request No. 13.

This request seeks documents regarding the type and amount of damages
and relief Plaintiff seeks “including but not limited to unpaid wages and overtime
compensation on behalf of Duty, liquidated damages, punitive damages, attorney’s
fees, costs, expenses, pre-judgment and post-judgment interest, expert witness fees,
and any other damages to which you claim you are entitled.” (Doc. 121-1, at 9.)
The Court fails to see how information responsive to this request could be
considered protected conciliation materials. Even to the extent this information
was discussed or analyzed during the conciliation process, information regarding
the type and calculation of Plaintiff’s damages is not per se protected conciliation
material. Plaintiff’s objection is overruled and Defendant’s motion is GRANTED
in regard to Request No. 13.
13

2.

Request No. 15.

Request No. 15 seeks “[t]he entire, unredacted contents of your investigative
file(s) related to EEOC Charge No. 28D-2009-00420.” (Doc. 121-1, at 10.) While
information contained in the investigative file might be privileged on other
grounds,4 the Court overrules Plaintiff’s objection to producing any documents
that where withheld from disclosure solely on the basis that they constitute
conciliation materials, with the exception of specific offers and counter-offers,
discussed in subsection 3, infra. Defendant’s motion is GRANTED in regard to
Request No. 15.
3.

Requests Nos. 23-29.

Request No. 23 seeks documents “containing, reflecting, or referencing
communications from you to Duty prior to the issuance in EEOC Charge No.
28D-2009-00420 of the Determination dated August 24, 2011” while Request No.
24 seeks such communications from Plaintiff Duty to the EEOC. (Doc. 121-1, at
13.) Request No. 25 seeks documents regarding “communications from you to
Duty after the issuance in EEOC Charge No. 28D-2009-00420 of the
4

The Court reiterates that more than one of the objections and privileges may
apply to a particular discovery request or responsive document that has been withheld
from production. To the extent an objection or assertion of privileges is overruled herein
in regard to a specific discovery request, any responsive information shall be produced
only to the extent it does not fall under the protection of another privilege raised by
Plaintiff that the Court has sustained.
14

Determination dated August 24, 2011, but prior to your conclusion that
conciliation with respect to that charge had failed,” while Request No. 26 seeks
such communications from Plaintiff Duty to the EEOC. (Doc. 121-1, at 14.)
Request No. 27 asks for documents regarding “communications from you to
Duty in connection with the Conciliation Agreement you proposed on or about
August 24, 2011 in connection with EEOC Charge No. 28D-2009-004200,” while
Request No. 28 seeks such communications from Plaintiff Duty to the EEOC. (Id.,
at 14-15.) Request No. 29 seeks “[a]ll documents that you contend demonstrate
satisfaction of your conciliation obligation with respect to EEOC Charge No.
28D-2009-00420.” (Id., at 15.)
The Court finds that such information may shed light on the issue of whether
the EEOC’s conciliation efforts were in good faith, which is a condition precedent
to the EEOC bringing a lawsuit in its name. Because Defendant is not a member of
the “public” to whom disclosure of these materials is prohibited, see Associated
Dry Goods, supra, and because good faith conciliation efforts are a condition
precedent to suit, the Court finds that the documents at issue are generally
discoverable.
The Court previously stated, however, that it would be improper for it to
“examine the details of the offers and counter-offers between the parties, nor
15

impose its notions of what the agreement should provide” in deciding whether the
EEOC has fulfilled its conciliation requirements. Zia, 582 F.2d at 533. Therefore,
communications relating to conciliation offers and counter offers are irrelevant to
any analysis the Court will make in this case. Plaintiff’s objection is sustained in
part and overruled in part while Defendant’s motion is GRANTED in part and
DENIED in part in regard to Requests Nos. 23-29. Documents or
communications regarding conciliation offers and counter-offers are not to be
produced. All other conciliation materials withheld by Plaintiff in response to
these document requests, however, shall be produced.
4.

Request No. 30.

This request seeks “[a]ll documents you relied on in arriving at the payments
requested in the Conciliation Agreement (section III, paragraphs B & C, “Charging
Party Relief”) you proposed on or about August 24, 2011 in connection with
EEOC Charge No. 28D-2009-00420.” (Doc. 121-1, at 16.) As stated above, the
Tenth Circuit has been clear that district courts are not to “examine the details of
the offers and counter-offers between the parties, nor impose its notions of what
the agreement should provide” in deciding whether the EEOC has fulfilled its
conciliation requirements. EEOC v. Zia Co., 582 F.2d 527, 533 (10th Cir. 1978).
As such, the Court finds the information sought by Request No. 30 to be irrelevant.
16

Plaintiff’s objection is sustained and Defendant’s motion is DENIED in regard to
Request No. 30.
5.

Requests Nos. 31-33.

Request No. 31 seeks “[a]ll documents containing, reflecting, or referencing
communications to you from any past or present employee of BNSF or on his/her
behalf, referring or relating to the subject matter of this lawsuit” while Request No.
32 asks for such communications from the EEOC to such individuals. Request No.
33 seeks “[a]ll documents, including Statements or reports, given to you and/or
anyone acting on your behalf by any persons interviewed by you and/or anyone
acting on your behalf, with respect to the subject matter of this lawsuit.” (Doc.
121-1, at 16-17.) The Court fails to see how information responsive to this request
could be considered conciliation materials. Plaintiff has not provided sufficient
argument on the issue as it relates to these specific requests. Even to the extent
such communications relate to or specifically reference conciliation efforts, the
Court also sees no basis to find that such communications would be protected
given that Defendant is not considered a member of the “public” to whom
production of such materials is prohibited. See Associated Dry Goods, supra.
Plaintiff’s objection is overruled and Defendant’s motion is GRANTED in regard
to Requests Nos. 31 and 32.
17

6.

Interrogatory No. 4.

Interrogatory states, “[w]ith respect to every oral communication you have
had with Duty (a) describe the substance of the communication; (b) provide the
date of the communication; (c) state the mode of the communication (i.e., in person
or by other means); and (d) identify any other persons present during such
communications.” (Doc. 121-2, at 7.) The Court finds that it was improper for the
Plaintiff to withhold conciliation materials responsive to Interrogatory No. 4 other
than communications relating to conciliation offers and counter offers. See Zia,
582 F.2d at 533 (holding that it would be improper for it to “examine the details of
the offers and counter-offers between the parties, nor impose its notions of what
the agreement should provide” in deciding whether the EEOC has fulfilled its
conciliation requirements). As such, Plaintiff’s objection is sustained in part and
overruled in part while Defendant’s motion is GRANTED in part and DENIED
in part in regard to Interrogatory No. 4. Plaintiff shall provide a supplemental
response to Interrogatory No. 4, detailing all such communications, including those
relating to the conciliation process. Plaintiff shall not, however, divulge the
specific conciliation offers and counter-offers discussed with Plaintiff Duty.
7.

Interrogatory No. 10.

This interrogatory asks Plaintiff EEOC for “the basis on which you arrived
18

at the payments requested in the Conciliation Agreement (section III, paragraphs B
& C, “Charging Party Relief”) you proposed on or about August 24, 2011 in
connection with EEOC Charge No. 28D-2009-00420, and describe all documents
referenced in arriving at those amounts.” (Doc. 121-2, at 11.) As stated numerous
times herein, the Tenth Circuit has been clear that district courts are not to
“examine the details of the offers and counter-offers between the parties, nor
impose its notions of what the agreement should provide” in deciding whether the
EEOC has fulfilled its conciliation requirements. EEOC v. Zia Co., 582 F.2d 527,
533 (10th Cir. 1978). The information sought by Interrogatory No. 10 is clearly
improper and irrelevant to the District Court’s analysis of Plaintiffs’ claims and
Defendant’s defenses. Plaintiff’s objection is sustained and Defendant’s motion is
DENIED in regard to Interrogatory No. 10.
8.

Interrogatory No. 11.

This interrogatory asks Plaintiff EEOC to “[i]dentify all persons involved in
making decisions on behalf of you with respect to the conciliation process for
EEOC Charge No. 28D-2009-00420, including decisions as to what relief to
request, how to respond to any proposals from Defendant, and whether to declare
conciliation to have been unsuccessful.” As previously noted herein, aspects of the
conciliation process relating to offers and counter-offers are irrelevant. See
19

subsections and 3,4, 6, and 7, supra. Even so, the Court finds that the identities of
individuals involved in the conciliation process on behalf of the EEOC – including
those involved in formulating and responding to offers and counter-offers – is
relevant. The identity of these individuals may lead to admissible evidence
regarding the issue of whether the EEOC engaged in the mandated good faith
conciliation efforts. Plaintiff’s objection is overruled and Defendant’s motion is
GRANTED in regard to Interrogatory No. 11.
9.

Deposition questions.

Plaintiff’s counsel also instructed deponent Samuel James not to respond to
various deposition inquiries on the basis that the information requested constituted
or implicated conciliation materials. These deposition objections are addressed in
Defendant’s Motion to Compel Deposition Testimony. (Doc. 122.)
The subjects of the deposition questions implicated involve whether the
deponent investigator made the decision regarding the amounts to be requested in
the proposed conciliation agreement (Doc. 123-1, at 20), and whether the EEOC
would be willing as part of the conciliation process to consider legal challenges to
its investigatory findings (id., at 21, 22). Regardless of whether or not this
information implicates protected conciliation materials, the Court fails to see any
relevance whatsoever as to Plaintiffs’ claims or Defendant’s defenses.
20

It is well-established that the EEOC is required to act in good faith, and must
make “a sincere and reasonable effort to negotiate by providing the defendant an
adequate opportunity to respond to all charges and negotiate possible settlements.”
EEOC v. Prudential, 763 F.2d at1169. Even so, the Tenth Circuit has been clear
that district courts are not to “examine the details of the offers and counter-offers
between the parties, nor impose its notions of what the agreement should provide”
in deciding whether the EEOC has fulfilled its conciliation requirements. EEOC v.
Zia, 582 F.2d at 533. Because this information is irrelevant on its face, the Court
DENIES Defendant’s Motion to Compel Deposition Testimony (Doc. 122) in this
regard.
C.

Work Product Materials.
Plaintiff has raised the protection of the work product doctrine in response to

Defendant’s Interrogatories Nos. 1, 4, 6, 7, 9, 10, and 12, and Requests for
Production Nos. 1-32 and 34-36. (See generally Doc. 121-1, 121-2.) The general
limitation on the discovery of work product is described in Fed. R. Civ. Proc.
26(b)(3), which provides that, with limited exceptions, “documents and tangible
things” prepared by a party or its agents “in anticipation of litigation or for trial”
are not discoverable. “To establish the applicability of the work product privilege,
[the withholding party] must show the following elements: ‘(1) the materials
21

sought to be protected are documents or tangible things; (2) they were prepared in
anticipation of litigation or for trial; and (3) they were prepared by or for a party or
a representative of that party.’” U.S. Fire Ins. Co. v. Bunge North America, Inc.,
No. 05–2192–JWL–DJW, 2008 WL 2548129, at *5 (D. Kan. June 23, 2008)
(quoting Johnson v. Gmeinder, 191 F .R.D. 638, 643 (D. Kan. 2000) (citations
omitted)).
The asserting party has the burden of establishing work
product protection. To carry that burden, the proponent
must make a ‘clear showing’ that the asserted objection
applies. A ‘blanket claim’ as to the applicability of the
work product doctrine does not satisfy the burden of
proof. It is well settled that the party seeking to invoke
work product immunity has the burden to establish all
elements of the immunity and that this burden can be met
only by an evidentiary showing based on competent
evidence.
Hillsdale Environmental Loss Prevention, Inc. v. U.S. Army Corps of Engineers,
No. 10–2008–CM–DJW, 10–2068–CM–DJW, 2011 WL 1102868, at *8 (D. Kan.
March 23, 2011) (citing U.S. Fire Ins. Co. v. Bunge N.Am., Inc., 247 F.R.D. 656,
657 (D. Kan. 2007)).
Defendant argues that it
is not seeking access to EEOC’s attorneys’ notes even if
they predate the time when BNSF contends that EEOC
could possibly have been anticipating litigation. Second,
BNSF is not seeking any materials claimed as work
product that were created after the date that EEOC
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announced that the pre-lawsuit conciliation process had
failed, which was on December 20, 2011. But BNSF
does ask the Court to overrule all work-product
objections EEOC has asserted for materials or
communications prior to that date, other than EEOC’s
attorneys’ own notes. Those are the categories of
information that make up the bulk of the dispute over the
work-product privilege, although BNSF discusses a few
other items below.
(Doc. 121, at 13-14.) Defendant continues that any such documents should be
considered “[m]aterials assembled in the ordinary course of business or for other
non-litigation purposes,” which are not protected by the doctrine. (Id., at 14 (citing
Ledgin v. Blue Cross & Blue Shield of Kansas City, 166 F.R.D. 496, 498 (D. Kan.
1996)). According to Defendant, Plaintiff EEOC “could not have been anticipating
litigation such that a work-product privilege could apply until, at the earliest,
sometime after the date it announced that conciliation had failed.” (Doc. 121, at
14.)
Plaintiff responds that its
enforcement unit is a neutral fact-finder before
conciliation fails, but the EEOC legal unit operates in
different manner. EEOC attorneys identify a small
number of charges as potential litigation vehicles for the
Agency by ‘flagging’ them as ‘A’ cases when they are
filed with the Commission (either directly with the EEOC
or dual-filed with a state and local agency, as was the
case here). An EEOC attorney flagged Mr. Duty’s
charge in this manner. Once an EEOC attorney flags a
charge, the attorney is assigned to the charge. From that
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point forward, the EEOC attorney assigned to the charge
is providing input to the EEOC Investigator and
evaluating the charge for the purpose of determining
whether it will be suitable for a Commission enforcement
action. The vast majority of charges filed with the EEOC
are not flagged by an EEOC attorney and have no
attorney assigned to them. But on those cases that are
attorney-flagged, all the attorney work product that is
produced is prepared in anticipation of litigation. To
hold otherwise would limit the work product protection
to work that is prepared for ‘proceedings in a court of
record,’ which is not consistent with the law. Thus, the
EEOC attorney work product withheld in this case is, in
fact, entitled to work product protection.
(Doc. 135, at 23.)
Defendant replies, however, that it “is not asking for EEOC’s counsel’s
notes or . . . internal EEOC communications with their lawyer.” (Doc. 142, at 20.)
Instead, “the communications at issue here are EEOC’s communications with
[Plaintiff] Duty and his lawyer, Duty and his lawyer’s communications with
EEOC, and communications with third-party, Terry Cordray.” (Id.) Plaintiff did
not specifically address such documents or communications in its response to
Defendant’s motion. As such, any such arguments or objections should be
considered to have been waived.
The Court will, however, assume Plaintiff is arguing its communications
with Duty and his counsel fall under the work product doctrine that Plaintiff
contends came into existence “once an EEOC attorney flags the charge . . . .”
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(Doc. 135, at 23.) Plaintiff does not, however, indicate when such a “flagging” by
an EEOC attorney allegedly occurred in the present case. Thus, the only date
available on which the Court may draw this figurative line in the sand is December
20, 2011, the date that the EEOC announced that the pre-lawsuit conciliation
process had failed.
Defendant’s motion is GRANTED in this regard. Plaintiff is directed to
produce any responsive information regarding communications between Plaintiff
EEOC and Plaintiff Duty (and their counsel) that were created before December
20, 2011, and were withheld on the basis of the work product doctrine.
D.

Common Interest Doctrine.
Plaintiff has raised the common interest doctrine as a reason not to respond

to Request for Production Nos. 1-14, and 17-33, (Doc. 121-1), and Interrogatories
No. 4 (Doc. 121-2, at 7). The doctrine was explained by Magistrate David Waxse
in the case of United States Fire Ins. Co. v. Bunge North America:
Generally, when a communication between a client
and an attorney occurs in the presence of third parties, the
attorney-client privilege is waived. The common interest
doctrine, however, affords two parties with a common
legal interest a safe harbor in which they can openly
share privileged information without risking the wider
dissemination of that information. The common interest
doctrine can only exist where there is an applicable
underlying privilege.
The common interest doctrine is not a separate
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privilege, but an exception to waiver of the
attorney-client privilege. The common interest doctrine
thus acts as an exception to the general waiver rule by
facilitating cooperative efforts among parties who share
common interests. For the common interest doctrine to
attach, ‘most courts ... insist that the two parties have in
common an interest in securing legal advice related to the
same matter – and that the communications be made to
advance their shared interest in securing legal advice on
that common matter.’ ‘The key consideration is that the
nature of the interest be identical, not similar, and be
legal, not solely commercial.’
No. 05-2192-JWL-DJW, 2006 WL 3715927, at *2 (D. Kan. Dec. 12, 2006)
(citations omitted).
Defendant argues that the
EEOC cannot rely on the common-interest privilege as to
communications prior to conciliation failure because
prior to that time EEOC and Duty did not share a
common interest sufficient to rely on the commoninterest privilege. . . . the parties must ‘have an identical
legal interest,’ not merely a similar one. But until EEOC
had an interest in prosecuting the action – which as a
mater of law could only have been after conciliation
efforts failed – Duty and EEOC did not have ‘identical
legal interest[s]. As such, the common-interest exception
to waiver cannot apply to any of the pre-conciliation
materials.
(Doc. 121, at 16-17.) Defendant contends that this is also true of any preconciliation failure communications between the EEOC, Plaintiff Duty, and Terry
Cordray, a former employee of Defendant who provides vocational rehabilitation
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services who was retained and paid by the EEOC to compile a report on Plaintiff
during the EEOC’s investigation process. (Id.)
In response, Plaintiff cites numerous cases in which private individuals were
considered to share a “common interest” with a governmental agency. (See Doc.
135, at 24-25.) Unfortunately for Plaintiff, however, none of these cases involved
the factual situation occurring in the present matter in which the governmental
agency involved has the initial, statutorily-mandated role of conciliator between
the individual Plaintiff and his former employer Defendant – a role which
subsequently changes if and when the conciliation process is unsuccessful.
The Court agrees with Plaintiff that a common interest exists between the
EEOC and Duty – but the Court agrees with Defendant that the common interest
between the EEOC and Duty did not exist until the conciliation efforts of the
EEOC were unsuccessful and the agency decided to bring suit in its name, giving
the EEOC and Duty an identical legal interest.
Defendant’s motion is GRANTED in this regard. Plaintiff is directed to
produce any responsive information regarding communications between Plaintiff
EEOC and Plaintiff Duty (and their counsel), including such communications
involving Terry Cordray, that were created before December 20, 2011, and were
withheld on the basis of the common interest doctrine.
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E.

Attorney-Client Privilege.
1.

Discovery requests.

Defendant challenges Plaintiff’s assertion of the attorney-client privilege in
response to Interrogatories Nos. 4 and 10 (Doc. 121-2, at 7, 11) and Requests for
Production Nos. 14, 17-28, and 31-325 (Doc. 121-1, at 9-17) for any
communications between the EEOC, Duty, and/or Duty’s attorney that occurred
before the EEOC’s statutorily-mandated conciliation was deemed unsuccessful.
Defendant specifically states that it “does not seek any communications between
EEOC’s attorneys and EEOC employees.” (Doc. 121, at 19.) Plaintiff’s response
discusses only those communications within the EEOC, and states that “[a]ll of the
information the EEOC has withheld under the attorney/client privilege are
communications between counsel and personnel in the EEOC Enforcement Unit
and Office of General Counsel concerning legal advice about Mr. Duty’s charge.”
(Doc. 135, at 21.) For the reasons set forth above in regard to the work product
doctrine and the common interest doctrine, Defendant’s motion is GRANTED to
the extent such communications occurred between the EEOC, Duty, and/or Duty’s
attorney before the EEOC’s statutorily-mandated conciliation was deemed

5

The Court notes that Defendant is not challenging Plaintiff’s assertion of the
attorney-client privilege in regard to Requests for Production Nos. 1-13, 15, 16, 29, and
30.
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unsuccessful and have been withheld on the basis of the attorney-client privilege.
2.

Deposition questions.

Plaintiff’s counsel also instructed deponent Samuel James not to respond to
various deposition inquiries on the basis that the information requested was
protected by the attorney-client privilege. These deposition objections are
addressed in Defendant’s Motion to Compel Deposition Testimony. (Doc. 122.)
The deposition questions implicated involve the EEOC investigator’s
conclusions regarding the sufficiency of the work performed/tools used (Doc. 1231, at 13), why it took approximately nine months to reach a conclusion regarding
the alleged insufficiency (id., at 14), why the EEOC determinations did not include
a reference to the phrase “reasonable cause” (id., at 16), and whether the EEOC
was willing to consider legal challenges to its determination of cause as part of a
conciliation agreement (id., at 21). Plaintiff makes little effort to explain how or
why the attorney-client privilege would prohibit deposition responses to these
questions. (See generally Doc. 135, at 20-22.) Even so, the Court fails to see how
this information is in any way relevant to Plaintiffs’ claims or Defendant’s
defenses. Further, these questions appear to be nothing more than an additional
back door attempt to attack the adequacy of the EEOC’s investigation. Because
this information is irrelevant on its face, the Court DENIES Defendant’s Motion to
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Compel Deposition (Doc. 122) Testimony in this regard.
IT IS THEREFORE ORDERED that Defendant’s Motion to Compel
Responses to Defendant’s First Interrogatories and First Requests for Production of
Documents (Doc. 120) is GRANTED in part and DENIED in part as more fully
set forth herein.
IT IS FURTHER ORDERED that Defendant’s Motion to Compel
Deposition Testimony (Doc. 122) is DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 18th day of April, 2014.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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