EEOC

Filing 186

ORDER granting in part 113 Motion for Protective Order. The Notice of Deposition addressed to the EEOC is limited as outlined in the order. The 120 Motion to Quash is granted in part. The Notice of Deposition addressed to the NEOC is limited as outlined in the order. Ordered by Magistrate Judge F.A. Gossett. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
V.
JBS USA, LLC,
Defendant.

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8:10CV318

ORDER

This matter is before the court on Plaintiff Equal Employment Opportunity
Commission’s (“EEOC”) motion for protective order (filing 113) and the motion to quash
(filing 120) filed by Nebraska Equal Opportunity Commission (“NEOC”), a non-party to this
action. Upon consideration of the matter, the court concludes that the motions should be
granted, in part.
BACKGROUND
On or about August 19, 2011, Defendant served upon EEOC a Notice of Deposition
(filing 114-2) seeking Fed. R. Civ. P. 30(b)(6) testimony regarding the following subjects:
1.

Factual information that supports or rebuts the EEOC’s claim in its Second
Amended Complaint that Defendant engaged in a pattern or practice of
discrimination against alleged aggrieved individuals because of their national
origin, race and/or religion.

2.

Factual information that supports or rebuts the EEOC’s claim in its Complaint
that Defendant engaged in a pattern or practice of unlawful retaliation against
alleged aggrieved individuals because of their requests for religious
accommodation and/or their complaints regarding denial of religious
accommodation.

3.

Factual information that supports or rebuts the EEOC’s claim in its Complaint

that Defendant engaged in a pattern or practice of discrimination by unlawfully
denying reasonable religious accommodation to its Somali Muslim employees.
4.

Factual information that supports or rebuts the EEOC’s claim in its Complaint
that Defendant engaged in a pattern or practice of unlawfully terminating its
Somali Muslim employees because of their religion, national origin, and in
retaliation for their requests for religious accommodation and complaints of
denied religious accommodation.

5.

Factual information that supports or rebuts the EEOC’s claim in its Complaint
that Defendant’s claim that Somali Muslim employees were terminated on or
about September 18, 2008 for engaging in an unauthorized work stoppage is
a pretext for unlawful discrimination.

6.

Factual information that supports or rebuts the EEOC’s claim in its Complaint
that Defendant engaged in a pattern or practice of failing to reasonably
accommodate its Muslim employees’ prayers via break times.

7.

Factual information that supports or rebuts the EEOC’s claim in its Complaint
that allowing Somali Muslim employees to leave the meat processing line to
pray was an accommodation that would not have posed an undue burden on
Defendant.

8.

From January 1, 2007 to the present, communication between the EEOC and
Defendant or its predecessors, or anyone acting on either party’s behalf,
relating in any way to any of the events described in, or allegations or claims
asserted in, the Complaint.

9.

From January 1, 2007 to the present, the contents of all investigative and
charge files maintained by the EEOC pertaining to any charges of
discrimination filed by the EEOC, or any individual listed in paragraph 6 of the
Complaint or Attachment A to the Complaint, against Defendant or its
predecessors.

10.

From January 1, 2007 to the present, investigations conducted by the EEOC
into all charges of discrimination filed by the EEOC, or any individual listed
in paragraph 6 of the Complaint or Attachment A to the Complaint against
Defendant or its predecessors.

11.

From January 1, 2007 to the present, statements (verbal, written, recorded or
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summarized) obtained by the EEOC from any past or present employee of
Defendant relating in any way to any of the events described in, or allegations
or claims asserted in, the Complaint.
12.

Documents and information shared between the EEOC and the NEOC
pertaining to the EEOC’s or NEOC’s investigation of all charges of
discrimination filed from January 1, 2007 to the present by any individual
listed in paragraph 6 of the Complaint or Attachment A to the Complaint.

13.

Contents of and information set forth in Plaintiff EEOC’s Rule 26(a) Initial
Disclosures, served June 9, 2011.

14.

The identify of any past or present employee of the Defendant’s Grand Island
facility whom the EEOC claims to represent in this action, and the basis for the
EEOC’s claim of representation.

15.

The efforts by the EEOC to conciliate the claims asserted in the Complaint.

16.

From January 1, 2007 to the present, communications between the EEOC and
any person affiliated with, or acting on behalf of, the United Food &
Commercial Workers International Union and its Local Union No. 22 (the
“Union”), relating in any way to the events described in, or allegations or
claims asserted in, the Complaint.

17.

From January 1, 2007 to the present, any internal policies, directives,
guidelines or mandates of the EEOC pertaining to the investigation or
prosecution of alleged systemic discrimination and/or pattern or practice
discrimination.

18.

From January 1, 2007 to the present, any internal policies, directives,
guidelines or mandates of the EEOC pertaining to the investigation or
prosecution of alleged religious discrimination.

19.

Requirements, policies, practices, guidelines or procedures approved by the
EEOC relating to the religious accommodation of its Muslim employees.

20.

Factual information which supports the injunctive relief sought by the EEOC
in its Complaint.

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On or about August 19, 2011, Defendant also served an amended Rule 30(b)(6)
Notice of Deposition (filing 114-3) on the NEOC seeking testimony regarding the following
subjects:
1.

From January 1, 2007 to the present, communications between the NEOC and
Defendant or its predecessors, or anyone acting on either party’s behalf,
relating in any way to the events described in, or allegations or claims asserted
in, the Second Amended Complaint of the EEOC filed in the above-captioned
matter.

2.

From January 1, 2007 to the present, investigations conducted by the NEOC
into all charges of discrimination filed by any individual listed in paragraph 6
of the Complaint or Attachment A to the Complaint.

3.

From January 1, 2007 to the present, statements (verbal, written, recorded or
summarized) obtained by the NEOC from any past or present employee of
Defendant relating in any way to the events described in, or allegations or
claims asserted in, the Complaint.

4.

Documents and information shared between the EEOC and the NEOC
pertaining to the NEOC’s investigation of all charges of discrimination, filed
from January 1, 2007 to the present by any individual listed in paragraph 6 of
the Complaint or Attachment A to the Complaint.

5.

From January 1, 2007 to the present, communications between the NEOC and
any persons affiliated with, or acting on behalf of, the United Food &
Commercial Workers International Union and its Local Union No. 22, relating
in any way to the events described in, or allegations or claims asserted in, the
Complaint.

6.

Factual information that supports or rebuts the EEOC’s claim in the Complaint
that Defendant engaged in a pattern or practice of discrimination against
alleged aggrieved individuals because of their national origin, race and/or
religion.

7.

Factual information that supports or rebuts the EEOC’s claim in the Complaint
that Defendant engaged in a pattern or practice of unlawful retaliation against
alleged aggrieved individuals because of their requests for religious
accommodation and/or their complaints regarding denial of religious
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accommodation.
8.

Factual information that supports or rebuts the EEOC’s claim in the Complaint
that Defendant engaged in a pattern or practice of discrimination by unlawfully
denying reasonable religious accommodation to its Somali Muslim employees.

9.

Factual information that supports or rebuts the EEOC’s claim in the Complaint
that Defendant engaged in a pattern or practice of unlawfully terminating its
Somali Muslim employees because of their religion, national origin, and in
retaliation for their requests for religious accommodation and complaints of
denied religious accommodation.

10.

Factual information that supports or rebuts the EEOC’s claim in the Complaint
that Defendant’s claim that Somali Muslim employees were terminated on or
about September 18, 2008 for engaging in an unauthorized work stoppage is
a pretext for unlawful discrimination.

11.

Factual information that supports or rebuts the EEOC’s claim in the Complaint
that Defendant engaged in a pattern or practice of failing to reasonably
accommodate its Muslim employees’ prayers via break times.

12.

Factual information that supports or rebuts the EEOC’s claim in the Complaint
that allowing Somali Muslim employees to leave the meat processing line to
pray was an accommodation that would not have posed an undue burden on
Defendant.

13.

Factual information regarding the circumstances of the verification, signature
and/or notarization of all charges of discrimination filed with the NEOC by
any individual listed in paragraph 6 of the Complaint or Attachment A to the
Complaint.

14.

The identification and authentication of all documents created or maintained
by the NEOC relating in any way to the events described in, or allegations or
claims asserted in, the Complaint, and which have been produced to
Defendant.

Following the receipt of their respective notices, the EEOC filed a motion for a
protective order seeking to prevent Defendant from deposing the EEOC and NEOC on the
identified topics. The NEOC likewise filed a motion to quash. These motions will be

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discussed in turn below.
ANALYSIS
1.

EEOC’s Motion for Protective Order

Generally, parties may discover relevant, non-privileged information that is reasonably
calculated to lead to admissible evidence. Fed. R. Civ. P. 26. However, the court may issue
a protective order to prevent or limit discovery in order to “protect a party or person from
annoyance, embarrassment, oppression or undue burden or expense,” including “forbidding
the disclosure of discovery [and] forbidding inquiry into certain matters.” Id. “Rule 26(c)
confers broad discretion on the trial court to decide when a protective order is appropriate
and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36
(1984).
The EEOC’s primary objection to the Notice of Deposition is that the Notice serves
as an improper attempt to obtain EEOC’s litigation strategy. The EEOC contends that
Defendant is attempting to uncover privileged and confidential communications in order to
attack the sufficiency of the EEOC’s processing of the eighty-five charges forming the
predicate basis for this lawsuit. The EEOC also complains that the topics outlined would
require the testimony of EEOC counsel, either directly or through a proxy, which would
invade work product and attorney-client privileged information. Defendant maintains,
however, that it is simply seeking to discover factual information relating to the claims in this
case. Defendant argues that the EEOC’s privilege objections are premature and speculative,
as the EEOC has not yet been required to respond to any specific questions.
As explained below, the court concludes that a limited protective order is warranted
in this case. The court acknowledges Defendant’s argument that questioning on the listed
topics has not yet taken place and that, as a consequence, the EEOC’s privilege objections
are somewhat speculative. Nevertheless, the court believes that questioning related to several
of the identified topics would inevitably invade privileged information. Therefore, the court
finds that a protective order, which serves to clarify and define the parameters of the
requested deposition testimony, is appropriate.
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A.

Permissible Deponents

As an initial matter, the court will not require the EEOC to produce EEOC attorneys
for deposition. Given the vast number of documents already produced, particularly the
investigative files, the court is unable to conclude that the deposition testimony sought is
crucial to the preparation of Defendant’s case, nor has Defendant made such a showing. See
Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986) (stating that
opposing counsel should only be deposed when there are no other means to obtain the
information sought and the information is crucial to the preparation of the case). The court
recognizes that, because the EEOC did not conduct the majority of the investigation at issue,
it is possible that the EEOC has no other representatives capable of testifying as to several
of the permissible areas of inquiry. However, the EEOC is under no obligation to create or
educate a witness so that he or she might serve as a proxy for counsel. Therefore, to the
extent that the EEOC has individuals capable of testifying as to the permissible subject
matters, those persons shall be produced for deposition.
B.

Topics 1-7, 20

The Notice, as written, seeks protected information through Topics 1-7 and 20. (Filing
114-2.) Defendant argues that through these topics, it only seeks factual information.
However, the Notice does not simply ask for underlying facts, but rather, asks for an
interpretation or evaluation of how particular facts support or refute allegations in the
Complaint. Questions seeking an evaluation of facts would unavoidably lead to an invasion
of attorney work product. See Equal Employment Commission v. McCormick & Schmick’s
Seafood Restaurants, Inc., No. WMN-08-CV-984, 2010 WL 2572809 (D. Md. June 22,
2010) (granting motion for protective order where the deposition notice did not ask for the
underlying facts, but rather the EEOC’s counsel’s interpretation of the facts). Accordingly,
the court will not permit Defendant to depose the EEOC regarding these topics.
C.

Topics 12, 17, 18 & 19

Topic 17 requests testimony regarding “internal policies, directives, guidelines or
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mandates of the EEOC pertaining to the investigation or prosecution of alleged systemic
discrimination and/or pattern or practice discrimination.” (Filing 113-2.) Topic 18 asks for
testimony regarding “internal policies, directives, guidelines or mandates of the EEOC
pertaining to the investigation or prosecution of alleged religious discrimination.” (Id.) The
EEOC objects to these requests, in part, based on the deliberative process privilege, which
protects from disclosure communications and documents “reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated.” Dept. of Interior v. Klamath Water Users Protective
Ass’n, 532 U.S. 1, 8 (2001) (citations omitted). In response, Defendant asserts that through
these topics, it permissibly seeks to depose the EEOC about the scope of the EEOC’s
investigation and that any objections based on deliberative process are premature.
The court agrees with the EEOC that questions in this area would inevitably invade
information protected by the deliberative process privilege. Several courts have determined
that inquiries touching on the nature and extent of EEOC investigations are impermissible.
For instance, in EEOC v. Keco Industries, Inc., 748 F.2d 1097 (6th Cir. 1984), the Sixth
Circuit Court of Appeals stated:
It was error for the district court to inquire into the sufficiency of the
Commission’s investigation. In previous cases where the employer has
objected to the sufficiency of the EEOC’s investigation into a discrimination
charge, the courts have precluded use of that objection as a basis for
dismissing a charge of discrimination made by the EEOC . . . because the
nature and extent of an EEOC investigation into a discrimination claim is a
matter within the discretion of that agency. The purpose of the EEOC’s
investigation of a discrimination charge is to determine if there is a basis for
that charge. The reasonable cause of determination issued as a result of the
investigation is designed to notify the employer of the EEOC’s findings and
to provide a basis for later conciliation proceedings . . . That line of inquiry
would deflect the efforts of both the court and the parties from the main
purpose of this litigation: to determine whether [the defendant] has actually
violated Title VII.
Id. at 1100 (citations and quotations omitted). See also EEOC v. Albertsons, LLC, No. 06-cv01273, 2008 WL 4877046, *5-6 (D. Colo. Nov. 12, 2008) (denying, in part, a motion to
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compel the EEOC’s 30(b)(6) investigator to testify based on the deliberative process
privilege, the court stated that “all of the evidence necessary to defend this case is available
elsewhere. Albertson’s has had ample opportunity to discover the facts underlying the
EEOC’s claims, and it does not need the details of the EEOC’s pre-suit investigation to
understand or defend those claims”). The court concludes that testimony regarding the
EEOC’s internal investigative polices, as outlined in Topics 17 and 18, is neither necessary
nor appropriate in this case.
The court similarly finds Topic 12 inappropriate. Topic 12 requests testimony
regarding “[d]ocuments and information shared between the EEOC and the NEOC pertaining
to the EEOC’s or NEOC’s investigation of all charges of discrimination filed from January
1, 2007 to the present by any individual listed in paragraph 6 of the Complaint or Attachment
A to the Complaint.” (Filing 114-2.) Again, questioning along these lines would surely lead
to an invasion of the deliberative process privilege, as well as others.
The court also fails to see the relevance of Topic 19, which requests testimony
regarding “[r]equirements, policies, practices, guidelines or procedures approved by the
EEOC relating to the religious accommodation of its Muslim employees.” (Filing 114-2.)
This case does not involve questions of whether the EEOC failed to accommodate the
religious practices of its employees.
Inquiry into each of these areas is barred.
D.

Topics 8, 9, 10, 11, 13, 14, 15 & 16

The EEOC raises various objections to these requests, including objections based on
the deliberative process privilege, attorney client privilege, common interest doctrine and
work product doctrine. The EEOC also contends that it is barred by statute from revealing
some of the requested information. The court agrees that the amount of information
discoverable through deposition on these topics would likely be limited by a number of
privileges. Nevertheless, the court will not completely prevent Defendant from deposing the
EEOC on these topics. It will, however, narrow the scope of these areas of inquiry.
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Accordingly, inquiry into Topics 8, 9, 10, 11, 13, 14, 15 and 16 is limited to factual
information relating to or obtained during the investigation that bears on a claim or defense
at issue in this case, and shall not be expanded to include unrelated charges against
Defendant or charges filed by the EEOC or the complaining parties against other entities.
In other words, Defendant can only seek non-privileged, factual information related to the
charges forming the predicate basis for the EEOC’s lawsuit. Defendant may, for instance,
inquire into factual information regarding the completeness of document production or
questions which seek to clarify facts and information, such as information contained in the
EEOC’s Rule 26(a) initial disclosures. Defendant may also ask general questions related to
the EEOC’s claims of representation, but may not inquire into the content of any
communications.
The EEOC remains free to assert the existence of privileges and refuse to answer
improper questions on a question-by-question basis during the deposition.
Accordingly,
IT IS ORDERED that the EEOC’s motion for protective order (filing 113) is granted,
in part. The Notice of Deposition addressed to the EEOC is limited as outlined above. Per
the EEOC’s joint request, the Notice of Deposition addressed to the NEOC will also be
modified as set forth below.
2.

NEOC’s Motion to Quash

The NEOC’s motion to quash will be granted, in part. As written, the Notice of
Deposition addressed to the NEOC is overly broad and compliance with the request would
impose an undue burden on the NEOC. In evaluating whether a subpoena presents an undue
burden, courts consider the following factors: (1) the relevance of the information requested;
(2) the need of the party for the information; (3) the breadth of the request; (4) the time
period covered by the request; (5) the particularity with which the party describes the
requested information; and (6) the burden imposed. Wiwa v. Royal Dutch Petroleum Co.,
392 F.3d 812, 818 (5th Cir. 2004). “Further, if the person to whom the document request is
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made is a non-party, the court may also consider the expense and inconvenience to the nonparty.” Id. at 818 (citations omitted). See also Glenford Yellow Robe v. Allender, Civ. No.
09-5040-JLV, 2010 WL 1780266, *5 (D.S.D. Apr. 30, 2010) (“[C]oncern for the unwanted
burden thrust upon non-parties is a factor entitled to special weight in evaluating the balance
of competing needs.”).
Defendant asks for testimony on at least eighty-five charges, which include different
facts, different witnesses and different information. According to the NEOC, no single
NEOC investigator or supervisor was responsible for all or even many of the case files and
many of the individuals most likely to have knowledge about the investigation and facts of
the complaints are no longer with the NEOC. As a consequence, the NEOC represents that
it lacks any individuals who would be qualified to testify on much of the information sought
by Defendant.
The court believes that factual information regarding the investigation that forms the
predicate basis for the Complaint filed against Defendant is generally a proper area of
inquiry. However, the Notice provided to the NEOC is overly broad and, at times, seeks
irrelevant information. Further, questioning on some of the topics would undoubtedly seek
to elicit privileged information. Therefore, the court will limit the scope of the requested
deposition(s).
Additionally, the court will require Defendant to better define its areas of inquiry in
order to lessen the burden on the NEOC. Accordingly, at least thirty days prior to any NEOC
deposition, Defendant shall particularize its questions about the investigation or other
relevant area of questioning to specific individuals, cases, documents or circumstances.
Defendant cannot, for instance, merely state that it wishes to gain information about every
individual complainant. Rather, Defendant must as narrowly as possible specify the factual
information it wishes to obtain or clarify within each permissible topic. This specificity will
allow the NEOC to designate the appropriate individual(s) for deposition.

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A.

Topics 1, 2, 3, & 5

These topics are similar to several of the those set forth in the Notice addressed to the
EEOC. Thus, questioning into these topics will be permitted, but likewise limited. As with
the topics set forth in the EEOC Notice, inquiry into these topics is limited to questions about
the charges or investigation at issue in this case and shall not be expanded to include charges
against Defendant that are unrelated to this suit or charges filed by the EEOC or the
complaining parties in this lawsuit against other entities.
B.

Topics 6-12

These requests ask for an evaluation or interpretation of particular facts and
allegations contained in the Complaint. As discussed above, such evaluative testimony is
impermissible. Moreover, the NEOC, a non-party to this action, likely did not take part in
drafting the Complaint or formulating the legal theories at issue. Therefore, it is doubtful
that any individual at the NEOC could testify regarding the subjects as listed. The NEOC
is not required to designate an individual to testify regarding these topics.
C.

Topics 4, 13 & 14

Topic 4, like Topic 12 of the EEOC’s Notice, calls for testimony regarding documents
and information shared between the NEOC and EEOC. (Filing 114-3.) For the reasons
previously explained, inquiry into this area is barred.
Topic 13 requests testimony “regarding the circumstances of the verification,
signature and/or notarization of all charges of discrimination filed with the NEOC by any
individual listed in paragraph 6 of the Complaint or Attachment A to the Complaint.” (Id.)
The court finds Topic 13 overly broad as it does not limit itself to charges filed against
Defendant. Moreover, Defendant is in possession of all the charge files and can examine any
and all charges and their notarizations or verified signatures and, if necessary, depose the
charging parties or notaries about the circumstances of their signatures. NEOC testimony
regarding this matter is unnecessary and unduly burdensome.
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Topic 14 calls for testimony regarding the “identification and authentication of all
documents created or maintained by the NEOC relating in any way to the events described
in, or allegations or claims asserted in, the Complaint, and which have been produced to
Defendant.” (Id.) This request seeks information about documents that have already been
provided to the EEOC and, in turn, provided by the EEOC to Defendant. This request is
broadly written and would seemingly require the NEOC to testify regarding the EEOC’s
production of documents. If Defendant, through this request, is seeking to clarify the
contents of non-privileged documents created by the NEOC during the course of its
investigation, it may do so in the context of Topic 2.
Inquiry into each of these topics is precluded.
IT IS ORDERED that the NEOC’s motion to quash (filing 120) is granted, in part.
The Notice of Deposition addressed to the NEOC is limited as outlined above.
DATED January 19, 2012.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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