Equal Employment Opportunity Commission v. Texas Roadhouse, Inc. et al

Filing 172

Magistrate Judge M. Page Kelley: ORDER entered granting in part and denying in part 132 Motion for Protective Order. (MacDougall, Patricia)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
v.

CIVIL ACTION NO. 11-11732-DJC

TEXAS ROADHOUSE, INC., TEXAS
ROADHOUSE HOLDINGS LLC, and
TEXAS ROADHOUSE MANAGEMENT
CORP., d/b/a TEXAS ROADHOUSE
Defendants.

ORDER ON PLAINTIFF’S MOTION FOR PROTECTIVE ORDER
REGARDING RULE 30(b)(6) DEPOSITION AND DEPOSITIONS OF
EEOC INVESTIGATOR AND OTHER STAFF (#132)

KELLEY, U.S.M.J.
I. INTRODUCTION
The United States Equal Employment Opportunity Commission (“EEOC”) has brought suit
against defendants, Texas Roadhouse, Inc., Texas Roadhouse Holdings LLC, and Texas Roadhouse
Management Corp. (collectively, “Texas Roadhouse”) charging that they unlawfully denied jobs to
thousands of applicants age 40 and over at restaurants across the country by failing to hire them for
“front of the house” positions because of their age. (Amended Complaint #35) The EEOC brought
the action under Section 4 of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §
623(a).
The Director of EEOC’s Boston Area Office started the action against Texas Roadhouse by
letter dated March 30, 2009 (the “Charge of Discrimination”) alleging violations of the ADEA by
Texas Roadhouse. (#35 ¶ 25) The Charge of Discrimination informed defendants that the

investigation would reach back to January 1, 2007, and requested, among other things, information
concerning hiring policies and employee information for Texas Roadhouse’s New England and New
York restaurants. Soon after, the EEOC began requesting information from Texas Roadhouse about
all but one of its restaurants nation-wide. Over the next eighteen months, Texas Roadhouse and the
EEOC engaged in a series of communications which culminated in the EEOC’s sending Texas
Roadhouse a Determination on the Charge of Discrimination (“Letter of Determination”) dated
October 8, 2010, in which the EEOC informed defendants that it had determined that they had
engaged in “a nationwide pattern or practice of age discrimination in hiring . . . .” Conciliation
efforts began on October 8, 2010 and concluded eleven months later on September 6, 2011.
(EEOC’s Memorandum In Support #122, pp. 3-8)
On August 21, 2014, this Court heard oral argument on several motions filed by the parties
(“the hearing”), including motions filed by the EEOC for summary judgment in which the EEOC
seeks to limit Texas Roadhouse from raising certain defenses, motions for protective orders, and
various discovery motions. The motions are interrelated. For example, if Texas Roadhouse is
precluded from raising certain defenses, as the EEOC argues it should be, then discovery pertaining
to those defenses would be curtailed as irrelevant. Although this Order pertains to one motion, the
Court’s rulings on other motions will be referenced when they are relevant to the ruling on this
motion.
On April 1, 2014, Texas Roadhouse noticed the depositions of four employees of the EEOC
and then on April 2, 2014, noticed a Rule 30(b)(6) deposition to the EEOC. (Declaration of Markus
L. Penzel #134, exh. 1 and 2) Texas Roadhouse listed topics that it proposed to cover in the Rule
30(b)(6) deposition. (#134, exh. 1) The EEOC filed a motion for a protective order and moved the
2

Court to quash the subpoenas. (#132)
For the reasons set out below, the Court agrees in part with the EEOC and grants its Motion
for Protective Order concerning the Rule 30(b)(6) deposition. The Court does not, however, agree
with the EEOC concerning the deposition of one of the two of the employees noticed by Texas
Roadhouse.1 After careful consideration of the parties’ pleadings and the particular facts of this
case, the Court permits the deposition of Kenneth An, who was the lead investigator on this case.
II. LEGAL STANDARD
Rule 30(6)(b), Fed. R. Civ. P., permits deposition discovery directed to an organization,
including a governmental agency. The deposition notice “must describe with reasonable particularity
the matters for examination.” Fed. R. Civ. P. 30(b)(6). The organization must designate a person
or persons who will testify on its behalf and “it may set out the matters on which each person
designated will testify.” Id. “The persons designated must testify about information known or
reasonably available to the organization.” Id.
The scope of this discovery is limited by Rule 26, which permits a court to limit “the
frequency or extent of use of the discovery methods otherwise permitted” under the Federal Rules
of Civil Procedure if it concludes that “the discovery sought is unreasonably cumulative or
duplicative”; “can be obtained from another source that is more convenient, less burdensome, or less
expensive”; if “the party seeking discovery has had ample opportunity to obtain the information by
1

In addition to the deposition noticed pursuant to Rule 30(b)(6), defendants noticed the depositions
of four EEOC employees. At the hearing, EEOC counsel explained that one of the four employees is an “IT
worker” who was not involved in the investigation. (Transcript, #164, p. 56). The second employee, Joanne
Golden, is “a former temporary employee of the agency” (#133, p. 16) and was an investigator on the case
(#117, exh. 2, p. 14). The remaining two employees are Robert Sanders, the retired Director of EEOC’s
Boston Area Office, and Kenneth An, the current Director of EEOC’s Boston Area office and the former lead
investigator on this case.

3

discovery”; or if the court, in balancing “the needs of the case, the amount in controversy, the parties’
resources, the importance of the issues . . ., and the importance of the discovery” to the issues, finds
that the burden of producing the discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(2)( C).
A court may enter a protective order on matters relating to a deposition for good cause to protect a
party “from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P.
26(c). Finally, a court “must protect against disclosure of the mental impressions, conclusions,
opinions, or legal theories of a party’s attorney or other representative of a party concerning the
litigation.” Fed. R. Civ. P. 26(b)(3).
The EEOC is not exempt from Rule 30(b)(6) depositions, nor are EEOC employees immune
from being deposed. “The EEOC, like other litigants, is subject to a Rule 30(b)(6) deposition. The
propriety of the information sought, however, depends on the specific topics identified in each
individual case.” U.S. EEOC v. Source One Staffing, Inc., 2013 WL 25033, at *4 (N.D. Ill. Jan. 2,
2013); EEOC v. McCormick & Schmick’s Seafood Restaurants, Inc., 2010 WL 2572809 (D. Md.
June 22, 2010) (protective order appropriate for Rule 30(b)(6) deposition if topics are objectionable
under Rule 26).
III. FACTS
Texas Roadhouse seeks to depose the EEOC’s 30(b)(6) witness on the twelve topics set out
below.2 The plaintiff complains that the topics seek information that has already been provided in
discovery; is irrelevant; intrudes on the attorney-client privilege, governmental deliberative process
privilege and work product privilege; and can be provided through less burdensome means.

2

Texas Roadhouse withdrew topics 12 and 13. (#134, exh. 6)
4

Defendants assert that EEOC representatives are commonly deposed; that defendants are
entitled to seek “factual support regarding the scope and timeliness of the EEOC’s investigation and
subsequent lawsuit”; that they are entitled to examine the EEOC’s delay in bringing the lawsuit; that
they are entitled to seek discovery concerning the EEOC’s conciliation efforts; and that they are
entitled to discover information regarding the EEOC’s “media campaign” concerning the present case.
(Defendants’ Opposition to Plaintiff’s Motion for a Protective Order # 148)
The topics listed below are very similar to ones considered by the court in EEOC v.
McCormick & Schmick’s Seafood Restaurants, Inc., supra, where the court found that a Rule 30(b)(6)
deposition was unwarranted because the topics noticed would effectively result in the deposition of
opposing counsel, other means of obtaining the discovery were available, and such a deposition would
likely invade attorney opinion work product and be an undue burden on the parties and the court.
The Court there cited to another case, S.E.C. v. SBM Inv. Certificates, Inc, 2007 WL 609888 (D. Md.
Feb. 23, 2007), where a Rule 30(b)(6) deposition was quashed for the same reasons:
[The SMB court’s] persuasive reasoning applies equally here where
the subjects outlined in the 30(b)(6) deposition notice on their face
seek attorney work product and would require the deposition of EEOC
counsel or a proxy prepared by counsel. The need to prepare a proxy
would result in an undue burden to EEOC, particularly where the
underlying factual information allegedly sought is obtainable through
other discovery means. Moreover, the attendant objections to
individual questions during the deposition on attorney-client privilege
and work product grounds would likely involve recourse to this Court
and a significant burden on this Court’s time that would be lessened
by other means of discovery.
McCormick, 2010 WL 2572809, at *5.
The Court in McCormick cited to numerous other cases in which federal courts have
“concluded that 30(b)(6) deposition notices directed to a law enforcement agency involving the type
5

of information Defendants seek in this case were, in effect, notices to depose opposing counsel, and
would not be permitted.” Id. at *4.
IV. SPECIFIC RULINGS
The Court finds as follows with respect to particular topics3:
Topic 1: Factual information and Documents that support or rebut Plaintiff’s
allegation that Defendants engaged in a pattern or practice of intentional age
discrimination in hiring.
This request seeks to depose a Rule 30(b)(6) witness concerning materials that the EEOC
asserts have already been provided in discovery. While the request is framed as one for “factual
information” and “documents,” the witness, in explaining why certain documents “support” or “rebut”
the allegations, would necessarily be asked to interpret the facts and discuss how the EEOC decided
to proceed in preparing the case. This topic is not appropriate for a Rule 30(b)(6) deposition, nor is
it appropriate for the investigator’s deposition. See EEOC v. Am. Int’l Group, Inc., 1994 WL 376052,
at *2-3 (S.D.N.Y. Jul 18, 1994) (Rule 30(b)(6) witness does not have to answer questions relating to
allegations in the complaint and possible defenses the defendant may have).
Topic 2: Factual information and Documents that describe, support or rebut the
damages computation reflected in Plaintiff’s Rule 26(a)(1) Disclosures.
Topic 3: Procedures, methodology, and criteria used to calculate equitable relief and
remedies sought by Plaintiff in this Lawsuit, including liquidated damages,
instatement or front pay in lieu of instatement.
A Rule 30(b)(6) deposition on these topics is unnecessary. The information requested can be
adequately provided by written discovery, interrogatories, and a deposition of the EEOC’s expert on

3

As required by the Rule, the topics were delineated with respect to the Rule 30(b)(6)
deposition. For clarity and convenience, the Court will employ the topics in defining the proper
scope of the EEOC investigator’s deposition.
6

damages.
Topic 4: Factual information and Documents related to any communication between
the Plaintiff and any Claimant, where such communication occurred prior to the
establishment of an attorney-client relationship between that person and the Plaintiff.
Documents relating to the information sought in this topic should have already been provided
to defendants in discovery. The Court notes that Texas Roadhouse did not claim in its Response to
the EEOC’s Motion for Protective Order (#148) that specific materials it has received in discovery
require clarification or interpretation. Compare, EEOC v. California Psychiatric Transitions, 258
F.R.D. 391 (E.D. Cal. 2009) (EEOC investigator may be deposed where materials in discovery
contain factual discrepancies, illegible entries, and other problems requiring explanation); Little v.
Auburn Univ., 2010 WL 582083 (M.D. Ala. Feb. 17, 2010)(EEOC investigator should be deposed
to clarify ambiguities related to factual aspects of the material); EEOC v. LifeCare Management
Services, LLC, 2009 WL 772834 (W.D. Pa. Mar. 17, 2009) (same). At the hearing, however, counsel
for Texas Roadhouse complained that certain written materials produced by the EEOC were
incomplete. For example, defendants could not discern who authored certain documents, or why
certain portions of questionnaires provided by the EEOC were left blank. In response, the Court
enlarged the number of interrogatories which had been allowed to the parties in the Amended Case
Management Plan (#69, exh. 1, p. 4) to allow defendants to propound a reasonable number of
questions addressing specific omissions or items in the discovery already provided which require
clarification.
The Court now finds that in addition to propounding interrogatories, defendants also may
depose the lead investigator on the case. The EEOC stated in its Motion for Protective Order that it
has provided all non-privileged documents to defendants, and repeated this assertion at the hearing.
7

(#133, p. 6) Defendants are entitled to test this assertion by asking questions about whether the file
is complete, how the documents provided were generated, and other questions designed to make sure
they have all the documents to which they are entitled and that documents contained in the file are
intelligible. For example, to the extent that the interrogatories posed do not clear up such issues, the
lead investigator may be questioned with regard to documents that have already been turned over,
concerning any omissions, items that need clarification, illegible entries, etc. See EEOC v. Luihn
Food Sys., Inc., 2011 WL 649794, at *4 (E.D.N.C. Feb. 11, 2011) (defendant can depose witness
concerning accuracy and completeness of information provided in investigative file); EEOC v.
Alberton’s LLC, 2007 WL 1299194, at *1 (D. Colo. May 1, 2007) (defendants need not be “content
with the EEOC’s investigation file,” as answers to questions properly posed “may or may not be in
the investigation file, or the information in the investigation file may not be complete.”).4
Topic 5: Factual information and Documents related to any communication between
the Plaintiff and any applicant or potential applicant for a position at any Texas
Roadhouse restaurant who is not a Claimant.
Although the wording of this topic does not make it clear, this information is not discoverable
unless the communication was made pre-litigation, as defendants concede in their Opposition.
(“Defendants’ Topics only seek factual information regarding non-Claimants and communications
between the EEOC and Claimants that occurred prior to the establishment of an attorney-client
relationship . . . .” (#148, p. 13) (emphasis in original)). Plaintiff states that it has provided all prelitigation materials pertaining to this request. As stated above, defendants may ask the investigator
4

The scope of the inquiry is narrow. Robert An, the former lead investigator on the case, is in the best
position to address the permitted questions. The Court sees no reason why the former Director of the
EEOC’s Boston Area Office, Robert Sanders, or the former IT worker, need be deposed. Questions
pertaining to particular issues concerning Ms. Golden, who was an investigator on the case, can be handled
through interrogatories or through questions posed to Mr. An, who was the lead investigator.

8

questions pertaining to whether the file is complete, and may ask questions regarding the
circumstances of pre-litigation communications with claimants and non-claimants.
Topic 6: Factual information and Documents related to any communication between
Plaintiff and any current or former manager or his/her agent, employee or his/her
agent, or agent of Defendants.
The EEOC concedes that “[c]ommunications between claimants or witnesses and EEOC
investigators and staff, during the investigative process, are not, of course, attorney work product.”
(EEOC’s Reply in Support of Motion for Protective Order #157, p. 5 n.8) Materials concerning prelitigation communications should have been provided in discovery, and defendants may ask the
investigator about any of these communications. Post-litigation communications are protected under
the attorney work product privilege and are not discoverable. See Gerber v. Down East Comty. Hosp.,
266 F.R.D. 29, 31 (D. Me. 2010).
Topic 7: The statistical analysis, including procedures, methodology, and criteria,
used by Plaintiff to support its pattern or practice claim in this Lawsuit.
While defendants are entitled to discovery on this topic, a request for a deposition on this topic
is premature, and in fact defendants have offered to postpone any Rule 30(b)(6) deposition on this
topic until after Stage I expert discovery. (#133, p. 5 n.4) A Rule 30(b)(6) deposition is unnecessary
on this topic as defendants can depose plaintiff’s expert concerning statistical analysis procedures and
methodology.
Topic 8: Factual information and Documents relating to Plaintiff’s investigation of
the Charge, its October 8, 2010 Determination, and any attempts to conciliate the
Charge.
Plaintiffs have assured the court, both at the hearing and in a separate filing (Plaintiff’s
Opposition to Defendant’s Motion to Compel #125 at 4) that the defendants are already in possession

9

of all non-privileged portions of the administrative file, including notes of all witness interviews as
well as documentary evidence collected during its investigation. The special interrogatories and the
deposition of Kenneth An, as discussed in Topic 4, supra, will allow the defendants to test this
assertion, as well as to clarify any omissions or unintelligible entries in the case file. No additional
discovery will be permitted outside of the interrogatories and deposition. The investigation is deemed
to have started on March 30, 2009, the day that the EEOC notified the defendants that they were
under investigation. As to the topic of conciliation, the Court assumes that defendants, since they
were participants in any attempt to conciliate the charge, have all the factual documents and
information to which they are entitled. Defendants have not pointed to any particular documents or
categories of information they are missing. (Defendants’ Opposition to Plaintiff’s Motion #148, pp.
7-8); see EEOC v. Evans Fruit Co., Inc., 2012 WL 442025, at *3 (where defendant asked for
materials relating to conciliation efforts, court “noted that Defendant, as the focus of the investigation
and a participant in the conciliation process, must be largely aware of what the EEOC did and did not
do in these respects.”).
Topic 9: Factual information and Documents that support or rebut any statement in
Plaintiff’s October 3, 2011 Press Release entitled “Texas Roadhouse Refused to Hire
Older Workers Nationwide, EEOC Alleges in Lawsuit” (“Press Release”) and
“General Counsel Statement on The Texas Roadhouse Lawsuit,” (“Statement”).
For the reasons stated on the record at the August 21, 2014 hearing, this information is not
discoverable at this time. If pre-trial publicity by the plaintiff has, in fact, tainted the jury pool, that
is a matter for the trial judge to deal with at the time of trial. If defendants can point to some specific
way in which the EEOC’s statistical claims might be countered by evidence that the “media
campaign” has discouraged older workers from applying for jobs, the Court will revisit the issue.

10

Topic 10: Factual information and Documents concerning all individuals who
contacted Plaintiff by telephone at [phone] or by e-mail at
[e-mail] in accordance with the directions in the Press
Release.
The Court assumes that the press release referenced is the one in the Defendants’
Memorandum of Law in Support of Motion to Compel #118, p. 13, which was issued on the day that
the EEOC filed this lawsuit. As this information does not pre-date the litigation, it is covered by the
attorney work product privilege.
Topic 11: Factual information and documents concerning Plaintiff’s internal
directives regarding the handling or investigation of systemic discrimination charges
and the conciliation process.
The defendants are not entitled to discovery on this topic as it requests information protected
by the governmental deliberative process. See EEOC v. JBS USA, 2012 WL 169981, at *5-6 (D. Neb.
Jan. 12, 2012).
Topic 14: Factual information and Documents relating to any statements Plaintiff has
made publicly or to third parties referring to the Charge, the Lawsuit, or Texas
Roadhouse.
For the reasons stated above with regard to topic 9, this request is denied.
V. CONCLUSION AND ORDER
For the reasons stated above, EEOC’s Motion for Protective Order Regarding Rule 30(b)(6)
Deposition and Depositions of EEOC Investigator and Staff (#132) is ALLOWED in part and
DENIED in part. The Rule 30(b)(6) deposition notice is quashed. The motion to quash the
subpoenas of the four employees is ALLOWED with respect to three of them, but DENIED with
respect to Kenneth An. Mr. An may be deposed on the topics in accordance with the Court’s rulings
in this Order.

11

/s/ M. Page Kelley
M. Page Kelley
United States Magistrate Judge

September 9, 2014.

12