EEOC

Filing 303

ORDER - Plaintiff-Intervenors Farhan Abdi, et al., Motion for a Protective Order Barring Defendant from Taking Deposition of Former Counsel Rima Kapitan (filing 236 ) is denied. Plaintiff-Intervenors Farhan Abdi, et al., Motion to Quash or Modify Subpoena for Rima Kapitan (filing 233 ) is granted, in part, as set forth above. Ordered by Magistrate Judge F.A. Gossett. (AOA)

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 action involves allegations by the Equal Employment Opportunity Commission
(“EEOC”) that Defendant violated Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. §§ 2000e, et seq., and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. The
EEOC alleges that Defendant engaged in a pattern or practice of discrimination by
unlawfully denying reasonable religious accommodation to its Somali Muslim employees and
unlawfully terminating its Somali Muslim employees because of their religion, national
original and in retaliation for their requests for religious accommodation and their complaints
of denied religious accommodation. Plaintiff-Intervenors Farhan Abdi, et al. (“PlaintiffIntervenors”), a number of Defendant’s current and former Somali Muslim employees,
intervened in this suit, maintaining that Defendant engaged in discriminatory employment
practices, including failing to make reasonable accommodations for their religious practices,
subjecting them to a hostile work environment, and/or discharging them from employment
based on their race, national origin, and/or religion, and in retaliation for their exercise of
rights under federal law.
Plaintiff-Intervenors have filed a motion to quash or modify a subpoena served upon
non-party, Rima Kapitan (“Kapitan”) (filing 233), as well as a motion for protective order
barring Defendant from deposing Kapitan (filing 236). Plaintiff-Intervenors contend that
Defendant should be prohibited from deposing Kapitan because Kapitan is a former staff
attorney of the Council on American-Islamic Relations - Chicago office (“CAIR-Chicago”),
the firm representing Plaintiff-Intervenors in this case. Plaintiff-Intervenors assert that from

approximately 2007 to 2009, Kapitan represented Defendant’s Muslim employees in
negotiations with Defendant in an attempt to obtain Defendant’s cooperation in enforcing the
employees’ rights pursuant to the religious accommodation provisions of Title VII and in
preparing a charge for the Equal Employment Opportunity Commission (“EEOC”). PlaintiffIntervenors maintain that: (1) the information Defendant seeks through Kapitan’s deposition
is protected under Fed. R. Evid. 408; (2) deposing Kapitan would contravene Fed. R. Civ.
P. 26(b); (3) Kapitan’s deposition is barred by Fed. R. Civ. P. 45(c)(3)(iii); and (4) Defendant
is improperly attempting to obtain information protected by the attorney-client privilege and
work product doctrine.
Defendant counters, arguing that Kapitan is a significant fact witness who was directly
involved in 2007 events which underlie claims asserted in this lawsuit. In particular,
Defendant asserts that Kapitan has non-privileged, factual knowledge concerning information
provided to Defendant regarding the tenets of Islam, which subsequently guided Defendant’s
actions during 2007 and Ramadan 2008.

Defendant claims that Kapitan’s factual

representations about the tenets of Islam, prayer requirements and the accommodation
requests of Muslim employees at the time are integral to Defendant’s defenses. Further,
Defendant maintains that Kapitan did not have an attorney-client relationship with PlaintiffIntervenors in 2007 - the time period about which Defendant seeks to depose Kapitan.
For the reasons expressed below, the Court declines to issue a protective order barring
Defendant from deposing Kapitan. The Court will, however, impose limits on the areas of
inquiry during such deposition.
ANALYSIS
I.

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
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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).
Plaintiff-Intervenors argue that Defendant is imposing an undue burden upon them
in attempting to depose Kapitan, as the information sought is protected by the attorney-client
privilege and, even if relevant, is available from other sources. Plaintiff-Intervenors point
out that courts have limited the practice of deposing opposing counsel to very specific
situations. In Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986). the Eighth
Circuit Court of Appeals found that to depose the attorney, the party seeking to take the
deposition must show “(1) no other means exist to obtain the information than to depose
opposing counsel; (2) the information sought is relevant and nonprivileged; and (3) the
information is crucial to the preparation of the case.” Id. (internal citation omitted). The
Eighth Circuit has further stated that the Shelton test imposes a difficult burden intended to
guard against the “harassing practice of deposing opposing counsel . . . that does nothing for
the administration of justice but rather prolongs and increases the costs of litigation, demeans
the profession, and constitutes an abuse of the discovery process.” Pamida, Inc. v. E.S.
Originals, Inc., 281 F.3d 726, 729-30 (8th Cir. 2002) (citation omitted).
The problem here, however, is that it is unclear whether an attorney-client relationship
existed between Plaintiff-Intervenors and Kapitan in 2007.

In accordance with their

obligations under Fed. R. Civ. P. 26 to provide Defendant with “a copy . . . of all documents
. . . that the disclosing party has in its possession, custody or control and may use to support
its claims . . .,” Plaintiff-Intervenors produced eighteen pages of 2007 communications to and
from Kapitan. These documents primarily consist of letters and emails exchanged between
Kapitan and Defendant’s representatives regarding ways in which Defendant could
accommodate the religious practices of its Somali Muslim employees. Notably, in one of
these communications, which is dated June 25, 2007, Kapitan stated that she was not acting
as legal counsel for the group of Defendant’s employees she was assisting at that time: “The
employees we listed have authorized us to act as their ‘agent and representative.’ At this
point there is no attorney-client relationship.”
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(Filing 244-4.) In another of these

communications, Kapitan refers to a meeting that she had with one of Defendant’s Human
Resource employees without the presence of defense counsel. (Id.) Defendant represents
that “[i]t is these 2007 communications about which [Defendant] wishes to question Ms.
Kapitan.” (Filing 243 at pp. 4-5.)
Given the limited information before the Court regarding the relationship between
Kapitan and Plaintiff-Intervenors in 2007, the Court will not preclude Kapitan’s deposition
based on the alleged existence of an attorney-client relationship. The determination as to
when an attorney-client relationship developed between Kapitan and Plaintiff-Intervenors
can be sorted out at the deposition. Moreover, any questions which Plaintiff-Intervenors
believe intrude upon the attorney-client privilege or work product doctrine may be objected
to during the deposition.
Additionally, the Court finds that Fed. R. Evid. 408 does not necessitate a protective
order. Rule 408 provides that evidence of conduct or statements made in compromise
negotiations is inadmissible.

Fed. R. Evid. 408.

However, while such evidence is

inadmissible at trial, it is nonetheless discoverable, provided the information is relevant and
reasonably calculated to lead to the discovery of admissible evidence. See City of Wichita
v. Aero Holdings, Inc., 192 F.R.D. 300, 301-02 (D. Kan. 2000) (“Even matter related to
settlement negotiations, although barred by Fed. R. Evid. 408 to prove liability at trial, may
still be discoverable under Rule 26 if the information sought is ‘reasonably calculated’ to
lead to admissible evidence”). Plaintiff-Intervenors’ Rule 26(a) disclosures indicate that
Kapitan may have non-privileged factual information relevant to this litigation. As noted by
Defendant, Kapitan could possess factual knowledge concerning the information provided
to Defendant regarding the tenets of Islam, which Defendant claims guided its actions during
2007 and Ramadan 2008. Therefore, keeping the liberal nature of discovery in mind,
Plaintiff-Intervenors’ motion for a protective order will be denied.
II.

Motion to Quash or Modify Subpoena

For the reasons explained above, the Court will not quash the subpoena issued on
Kapitan. It will, however, limit the topics of inquiry to the 2007 communications Plaintiff4

Intervenors produced pursuant to its Rule 26(a) obligations, including the facts underlying
the creation and/or content of these communications and the representations contained
therein. In any event, this limitation should be agreeable to Defendant as it has represented
to the Court that it only wishes to depose Kapitan regarding these topics. If at any time
during the deposition it appears that Defendant is inquiring into areas protected by the
attorney-client privilege or work product doctrine, Plaintiff-Intervenors may certainly object
to the line of questioning.
Finally, it must be noted that this Court has previously found that PlaintiffIntervenors’ participation in Phase I of this suit, as defined by the parties’ Bifurcation
Agreement, is limited to the role of fact witnesses. However, on account of PlaintiffIntervenors’ significant interest in this deposition, Plaintiff-Intervenors’ full participation in
Kapitan’s deposition is warranted.
Accordingly,
IT IS ORDERED:
1.

Plaintiff-Intervenors Farhan Abdi, et al., Motion for a Protective Order Barring
Defendant from Taking Deposition of Former Counsel Rima Kapitan (filing
236) is denied.

2.

Plaintiff-Intervenors Farhan Abdi, et al., Motion to Quash or Modify
Subpoena for Rima Kapitan (filing 233) is granted, in part, as set forth above.

DATED October 5, 2012.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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