Equal Employment Opportunity Commission v. Performance Food Group, Inc. et al

Filing 189

MEMORANDUM OPINION AND ORDER granting in part and denying in part 186 Motion to Compel. Signed by Magistrate Judge Beth P. Gesner on 6/6/2017. (bmhs, Deputy Clerk)

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

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v.

Civ. No.: MJG-13-1712
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PERFORMANCE FOOD GROUP, INC., et al.,
Defendants.

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MEMORANDUM OPINION AND ORDER
Now pending before the court are Plaintiff’s Motion to Compel Subpoena Compliance
Directed to Nonparty Charlotte Perkins (“Plaintiff’s Motion”) (ECF No. 186), Defendant’s
Opposition to Plaintiff’s Motion (“Defendant’s Opposition”) (ECF No. 187), and Plaintiff’s
Reply in Support of Plaintiff’s Motion (“Plaintiff’s Reply”) (ECF No. 188). No hearing is
necessary. Loc. R. 105.6. For the reasons discussed below, Plaintiff’s Motion is GRANTED in
part and DENIED in part.

I.

Background
Plaintiff, the United States Equal Employment Opportunity Commission (“plaintiff,” or

“EEOC”), filed this employment action against defendants Performance Food Group, Inc. and
associated entities on June 13, 2013, alleging unlawful sex-based discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (ECF No. 1.)
The case was referred to the undersigned by Judge Garbis for all discovery and related
scheduling, pursuant to 28 U.S.C. § 636(c) and Local Rule 301, on September 2, 2014. (ECF

No. 57.) Since then, the parties have engaged the court on many occasions to resolve a range of
discovery disputes, both narrow and broad. 1 Most recently, on April 4, 2017, plaintiff filed a
letter requesting guidance from the court as to how to proceed to resolve a discovery dispute
between plaintiff and a nonparty. (ECF No. 184.) Although the court had previously made
available to counsel its expedited discovery dispute resolution procedures, the undersigned
advised plaintiff that expedited procedures were not appropriate in this instance, and noted that
plaintiff should proceed in accordance with Federal Rule of Civil Procedure 45. 2 (ECF No. 185.)
Plaintiff subsequently filed the instant Motion on April 24, 2017 identifying Ms. Charlotte
Perkins as the nonparty. (ECF No. 186.) On May 8, 2017, defendant Performance Food Group,
Inc. (“defendant,” or “PFG”) timely filed an opposition (ECF No. 187) and plaintiff replied on
May 15, 2017 (ECF No. 188). Ms. Perkins did not file an opposition and the time to do so has
expired. Plaintiff’s Motion is now ripe for the court’s review.
The instant dispute centers around a subpoena that plaintiff served on Ms. Perkins,
defendant’s former Chief Human Resources Officer (“CHRO”), on August 1, 2016 commanding
Ms. Perkins to attend a deposition and produce documents. (ECF No. 186 at 3.) The subpoena
was based on plaintiff’s understanding that “Ms. Perkins has information and documents relevant
to the present action by virtue of her previous position with Defendant; and based on experiences
leading to her own charge of discrimination based on sex that she filed with the EEOC following
her termination or resignation from Defendant in 2008.” (Id.) According to plaintiff, Ms.
Perkins later withdrew her EEOC charge as part of a confidential settlement agreement entered

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See, e.g., ECF Nos. 65, 70, 82, 90, 105, 112, 123, 126, 128, 131, 137, 144, 155, 157, and 168.
The court also directed plaintiff to provide a copy of the court’s letter order to the nonparty. (ECF No. 185.)

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into with defendant in an unrelated case filed in Virginia state court (the “Virginia action”). 3 (Id.
at 3–4.) Ms. Perkins did not file a motion to quash or otherwise object to the subpoena until she
appeared for her deposition on August 9, 2016, at which time she refused to answer any
questions pertaining to the Virginia action or her EEOC charge, among other topics. 4 (Id. at 4–
5.) She claimed, in part, that she was prohibited from testifying on these matters due to a private
settlement agreement. (Id. at 5.) Regarding the subpoena’s command to produce documents,
Ms. Perkins initially claimed that they were in the possession of her former attorneys, but after
her deposition, she served written objections through her then-current attorney claiming that the
documents were “protected from disclosure pursuant to a protective order or a settlement
agreement absent a court order.” 5 (Id. at 7.) Although Ms. Perkins has not particularized the
basis for her objections, plaintiff assumes that the prior settlement agreement in the Virginia
action contains some form of prohibitory clause (id. at 8), and that Ms. Perkins fears retaliation
from defendant. 6 (ECF No. 188 at 1.)
Accordingly, plaintiff seeks an order from this court compelling Ms. Perkins to comply

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See Perkins v. Blackstone Group, LP, No. CL08001664-00 (Va. Cir. Ct. filed July 16, 2008). According to
plaintiff, the circuit court dismissed the Virginia action pursuant to the settlement agreement, which was filed under
seal. (ECF No. 186 at 6.)
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Specifically, Ms. Perkins refused to answer questions regarding the substance of her testimony in the Virginia
action, whether a settlement with PFG was a basis for her refusal to answer questions, any statements made to
EEOC investigators, any prejudice, discrimination, or hostility towards women of which she became aware during
her employment, any steps PFG took in response to complaints, the nature and circumstances of her termination, and
the steps she took to prepare for the deposition. (ECF No. 186 at 5–6.) In light of Ms. Perkins’ nonresponsive
answers, plaintiff held open the deposition and defendant and Ms. Perkins did not object. (Id. at 6.)

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Plaintiff’s subpoena commanded Ms. Perkins to produce all documents and communications related to her
employment with and termination from PFG (excluding details of settlement negotiations), all documents
concerning any allegations of sex discrimination against PFG agents or employees, and any communications from
PFG or its counsel concerning the deposition. (ECF No. 186 at 7–8.) According to plaintiff, Ms. Perkins retained
one of her former attorneys from the Virginia action, Ms. Gretchen C. Byrd, to respond to the subpoena’s command
to produce. (Id. at 4.) Plaintiff claims that it attempted to contact Ms. Byrd to resolve Ms. Perkins’ objections, but
that Ms. Byrd has stated only that her firm does not (or does no longer) represent Ms. Perkins. (Id. at 8.) Plaintiff
believes that Ms. Perkins is currently unrepresented. (Id. at 11.)
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According to plaintiff, defendant has neither confirmed nor denied the existence of any such clause in the
settlement agreement, and has withheld production of the agreement during discovery. (ECF No. 186 at 8–9.)

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with the subpoena issued on August 1, 2016. Specifically, plaintiff requests that the court: (1)
order Ms. Perkins to answer the questions she refused to answer during her August 9, 2016
deposition; (2) order her to produce the documents commanded by the subpoena; and (3) order
the continuance of her deposition at the EEOC's Baltimore field office within sixty days, and for
a period of not less than four hours. (ECF No. 186 at 3.) In support of its Motion, plaintiff
argues that private parties cannot contract to prohibit a person from complying with compulsory
process, and that the sealing of any such agreement in Virginia state court has no effect on the
enforceability of the subpoena in federal court. (Id. at 9–10.) Defendant opposes only the scope
and continuance of the deposition, arguing that plaintiff unduly delayed and that Ms. Perkins
already answered all relevant questions. 7 (ECF No. 187 at 2–8.) As noted, Ms. Perkins did not
file an opposition.

II.

Discussion
When a nonparty objects to a Rule 45 subpoena, it may “file a motion to quash or modify

the subpoena pursuant to [Fed. R. Civ. P. 45(d)(3)(A)], seek a protective order pursuant to Fed.
R. Civ. P. 26(c), or . . . object to production of documents by opposing a motion to compel under
[Fed. R. Civ. P. 45(d)(2)(B)].” United States v. Star Scientific, Inc., 205 F. Supp. 2d 482, 484
(D. Md. 2002). A party generally has standing to challenge a nonparty subpoena where the party
“claims some personal right or privilege in the information sought.” United States v. Idema, 118
F. App’x 740, 744 (4th Cir. 2005). A subpoena must be quashed or modified when it: (1) does
not allow a reasonable time to respond; (2) requires a nonparty to travel more than 100 miles
from where the nonparty resides, is employed, or regularly transacts business in person; (3)
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Defendant takes no position on Plaintiff’s Motion to the extent that it seeks to enforce the subpoena’s command to
produce documents. (ECF No. 187 at 1.)

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requires disclosure of privileged matters; or (4) subjects a person to undue burden. Fed. R. Civ.
P. 45(d)(3)(A), 45(c).

A subpoena may be quashed or modified in certain other limited

circumstances, including where the subpoena requires the disclosure of confidential commercial
information or the opinions of unretained experts. Fed. R. Civ. P. 45(d)(3)(B).
“[T]he scope of discovery allowed under a subpoena is the same as the scope of
discovery allowed under Rule 26.” Phillips v. Ottey, No. DKC 14-0980, 2016 WL 6582647, at
*2 (D. Md. Nov. 7, 2016) (quoting Singletary v. Sterling Transp. Co., 289 F.R.D. 237, 240–41
(E.D. Va. 2012)) (internal quotation marks omitted). Rule 26(b)(1) allows a party to “obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the importance of the issues at stake in the
action, the amount in controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).
a. Scope and Continuance of the Deposition
Defendant contends that a continuance of Ms. Perkins’ deposition is unnecessary because
“[Ms.] Perkins’ refusal to answer certain questions . . . related to a confidentiality agreement that
she executed relating to her personal lawsuit against PFG, and not to the issues in this lawsuit.”
(ECF No. 187 at 2.) Defendant further contends that “[Ms.] Perkins’ breach of contract and tort
based claims against PFG [in the Virginia action] have nothing to do with the allegations that
PFG discriminated against female applicants,” and that “[o]ther questions that [Ms.] Perkins
refused to answer . . . bear little relationship to the substance of this case.” (Id. at 7.)
Here, defendant takes a far too restrictive view of the Rule 26 relevancy standard. Even
if the Virginia action and resulting settlement made no mention of any allegations of sex

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discrimination—a highly unlikely contention—at the very least, documents and testimony in that
matter would have concerned Ms. Perkins’ role as CHRO, where she was uniquely positioned to
acquire information relevant to the allegations of “systemic” sex discrimination in this case.
(See ECF No. 188 at 3–4.) Indeed, several of plaintiff’s deposition questions are specifically
directed to the nature of Ms. Perkins’ employment with defendant and the circumstances of her
termination, as well as her statements to EEOC investigators concerning her own allegations of
sex discrimination. See note 4 above. There can be no doubt that the scope of this questioning is
relevant and permissible under the Federal Rules, and that Ms. Perkins’ responses are
inadequate.
Defendant further objects to the continuance of Ms. Perkins’ deposition on the basis of
undue delay, arguing that plaintiff waited nearly nine months to file its Motion on the eve of the
fact discovery deadline. (ECF No. 187 at 2.) Plaintiff argues that any delay is due to a lack of
cooperation by Ms. Perkins and her counsel, which defendant could have easily facilitated.
(ECF No. 188 at 2–3.) Although the deadline for fact discovery has indeed passed, there is
ample time left in the current schedule for the parties to prepare for and conduct a continuance of
Ms. Perkins’ deposition, 8 especially considering that defendant has been well on notice of
plaintiff’s intent to continue the deposition on the subjects Ms. Perkins refused to address.
Accordingly, in the absence of any apparent prejudice to defendant, the court will order the
continuance of Ms. Perkins’ deposition. Further, given Ms. Perkins’ blatant noncooperation, the
court will require her to attend the deposition at the EEOC’s Baltimore office, which is within
100 miles of her residence. See Fed. R. Civ. P. 45(d)(3)(A)(ii), 45(c). In consideration of the
current schedule and the anticipated burden to Ms. Perkins, however, the court will limit the
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According to the most recent scheduling order (ECF No. 183), the fact discovery deadline passed on May 1, 2017.
The close of expert discovery, however, does not occur until February 19, 2018 with dispositive pretrial motions due
March 12, 2018.

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length of the deposition to a maximum of two hours, and require that it be scheduled within
thirty (30) days of the date of this Order. Plaintiff shall limit the scope of its inquiry to those
subjects that Ms. Perkins refused to address in her original deposition, and that plaintiff has
identified in paragraphs 8 and 9 of its Motion. (See ECF No. 186 at 5–6.)
Turning now to Ms. Perkins’ confidentiality objections, 9 it is well established that the
Fourth Circuit does not recognize a settlement privilege, and that confidential settlement
materials are not automatically shielded from discovery. See Nat’l Union Fire Ins. Co. v. Porter
Hayden Co., No. CCB-03-3408, 2012 WL 628493, at *3 (D. Md. Feb. 24, 2012); Phillips, 2016
WL 6582647, at *3–4 (denying motion to quash nonparty disclosure of confidential settlement
agreement). Rather, the standard practice in this district is to require the parties to address
confidentiality and privacy concerns through the court’s stipulated confidentiality order. See
Fangman v. Genuine Title, LLC, No. RDB-14-0081, 2016 WL 560483, at *4–5 (D. Md. 2016)
(concluding that stipulated confidentiality order adequately protects privacy of nonparties).
Neither defendant nor Ms. Perkins has responded to plaintiff’s position on this issue, and the
court does not perceive on its own any circumstances warranting a modification of plaintiff’s
subpoena. Accordingly, Ms. Perkins’ objections are overruled to the extent they are noted in her
deposition transcript. At the date and time that her deposition is continued, Ms. Perkins will be
required to provide responsive answers to plaintiff’s questions to the full extent of her
knowledge. Counsel may note any further objections on the record.
b. Command to Produce Documents
Defendant takes no position on this portion of Plaintiff’s Motion, and the court concludes
that the commanded documents are relevant and discoverable for the reasons noted above. Ms.
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Although Ms. Perkins did not file a formal opposition, in order to resolve Plaintiff’s Motion, the court will address
Ms. Perkins’ objections to the extent they are noted in her deposition transcript (ECF No. 186-1). The court does so
under the Rule 45 standard.

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Perkins’ written objections are similarly overruled. There has been no showing of burden or
expense related to this subpoena, and, as noted above, confidential matters may be routinely
managed through the court’s stipulated confidentiality order. Accordingly, and to ensure the
deposition proceeds smoothly, Ms. Perkins is directed to fully comply with the subpoena’s
command to produce by no later than seven (7) days prior to the date her deposition is scheduled
to continue.
In sum, Plaintiff’s Motion is granted insofar as the court hereby orders Ms. Perkins to:
(1) appear for a continuance of her deposition at the EEOC’s Baltimore field office within thirty
(30) days of the date of this Order, for a period not to exceed two hours; (2) provide responsive
answers to any questions directed to the subjects identified in paragraphs 8 and 9 of Plaintiff’s
Motion to the full extent of her knowledge; and (3) fully comply with the August 1, 2016
subpoena’s command to produce documents by seven (7) days prior to the scheduled date of her
continued deposition.

III.

Conclusion
For the reasons set forth above, it is hereby ORDERED that Plaintiff’s Motion (ECF No.

186) is GRANTED in part and DENIED in part.
It is further ORDERED that plaintiff shall serve a copy of this Order on Ms. Charlotte
Perkins.

Date: June 6, 2017

/s/
Beth P. Gesner
United States Magistrate Judge

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