U.S. Equal Employment Opportunity Commission v. AZ Metro Distributors LLC
MEMORANDUM AND ORDER, Finding that the order of Magistrate Judge Kuo authorizing limited depositions of EEOC officials is neither clearly erroneous nor contrary to law, that order is affirmed and the appeal is dismissed. (Ordered by Judge Eric N. Vitaliano on 9/06/2016) c/m (Galeano, Sonia)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------EQUAL EMPLOYMENT OPPORTUNITY
15-cv-5370 (ENV) (PK)
AZ METRO DISTRIBUTORS, LLC,
Plaintiff Equal Employment Opportunity Commission ("EEOC") brought this action
against AZ Metro Distributors, LLC ("AZ Metro"), on behalf of two of its former employees, ·
Archibald Roberts and Caesar Fernandez, following charges filed with the EEOC alleging
violations of the Age Discrimination in Employment Act ("ADEA''), 29 U.S.C. § 621, et seq.
Magistrate Judge Peggy Kuo, who is supervising discovery in this case, held a series of
conferences and invited briefing on the permissible scope of deposition testimony with respect to
EEOC officials. At the final conference, on July 14, 2016, Judge Kuo ruled that defendants
would be permitted to depose I) four EEOC officials involved with Roberts's and Fernandez'
investigation, solely for purposes of determining the factual basis of allegations made in the
charges; and 2) two EEOC officials who plaintiff represents have no personal knowledge of~e
EEOC investigation. Plaintiff files this appeal of Judge Kuo's order. 1
1 Plaintiff has
styled its filing as objections to Judge Kuo's order, but its challenge is properly
understood as an appeal. The appeal of an order of a magistrate judge is governed by the Federal
Magistrates Act, 28 U.S.C. §§ 631 et seq. and Rule 72 of the Federal Rules of Civil Procedurel
A magistrate judge can make findings as to nondispositive pretrial matters and to issue an ordJr
that is binding in and of itself. See. e.g., 28 U.S.C. § 636(b)(l)(A); Fed. R. Civ. P. 72(a);
Standard of Review
Generally, "magistrate judges have broad discretion in resolving nondispositive
matters ...." Gorman v. Polar Electro, Inc., 137 F. Supp. 2d 223, 226 (E.D.N.Y. 2001).
Nevertheless, a district judge "may reconsider any pretrial matter ... where it has been shown
that the magistrate judge's order is clearly erroneous or contrary to law." 28 U.S.C. §
636(b)(l)(A). Hence, a party may challenge a magistrate judge's pretrial order on a
nondispositive matter within 14 days of the entry of the order. Fed. R. Civ. P. 72(a). "An ordJr
is contrary to law 'when it fails to apply or misapplies relevant statutes, case law, or rules of
procedure.'" Rathgaber v. Town of Oyster Bay, 492 F. Supp. 2d 130, 137 (E.D.N.Y. 2007)
(quoting Catskill Dev., L.L.C. v. Park Place Entm 't Corp., 206 F.R.D. 78, 86 (S.D.N.Y. 2002l
In line with this deference, "the magistrate judge's finding should not be rejected merely because
the court would have decided the matter differently." Graves v. Deutsche Bank Securities Inc.
No. 07-Civ.-5471 (BSJ), 2010 WL 997178, at *7 (S.D.N.Y. Mar. 18, 2010) (citing Anderson J.I
City of Bessemer, 470 U.S. 564, 573, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985)). Pointedly, th~s
highly deferential standard of review imposes a "heavy burden" on the party challenging the
order. Com-Tech Assocs. v. Computer Assocs. Int'!, Inc., 753 F. Supp. 1078, 1099 (E.D.N.Y. /
1990), ajf'd, 938 F.2d 1574 (2d Cir. 1991). The Supreme Court has emphasized that an order
can only be found to be "clearly erroneous" when "the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has been committed." United States vJ
Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). Because matters
concerning discovery are generally considered nondispositive of the litigation, resolution of a
discovery dispute by a magistrate judge in the form of an order is appropriate, and the Court
considers objections to such orders as an appeal from that order. See, e.g., Thomas E. Hoar, Inc.,
900 F.2d at 525; Sheppard v. Beerman, No. 91-cv-1349, 1999 WL 1011940, at *2 (E.D.N.Y. I
Sept. 23, 1999).
United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746 (1948).
Scope of Depositions
As an initial matter, it is well established that EEOC is not exempt from Rule 30
depositions. Equal Emp. Opportunity Comm 'n v. Sterling Jewelers Inc., No. 08-CV00706(A)(M), 2010 WL 2803017, at *2 (W.D.N.Y. July 15, 2010) (citing Equal Emp.
Opportunity Comm 'n v. Corr. Corp. ofAm., No. CIV.A. 06-CV-01956-E, 2007 WL 4403528, at
"'1 (D. Colo. Dec. 13, 2007)).
That said, as has been noted before in this litigation, judicial review of the EEOC's
prerequisites to filing suit is strictly "limited," such that "courts may not review the sufficiencJ
of an investigation-only whether an investigation occurred." Equal Emp. Opportunity
v. Sterling Jewelers Inc., 801 F.3d 96, I 0 I (2d Cir. 2015); see also Mach Mining, LLC v. Equal
Emp. Opportunity Comm 'n, 135 S. Ct. 1645, 1654-56, 191 L. Ed. 2d 607 (20 l 5)(same,
concerning the EEOC's conciliation efforts). This Court previously noted that "discovery
targeted at the EEOC's efforts toward resolution of the underlying dispute would be unlikely tb
lead to evidence 'that is relevant to any party's claim or defense[,]'" and, therefore, be beyond!
the bounds of discovery. ECF Dkt. Entry dated Jan. 20, 2016 (quoting Fed. R. Civ. P. 26(b)(l~).
However, Judge Kuo has narrowly tailored her order to avoid exactly these pitfalls. Stle
stated clearly that "[t]here should not be questioning into opinions," and noted that "analysis,",
anything related to the "deliberative process," or questing into who was involved with various I
legal decisions were strictly forbidden. Transcript of Discovery Conference held July 14, 20l(i,
ECF Dkt. No. 38, at 3. Permissible avenues of inquiry were limited to factual matters, such aJ
"the completeness of the document discovery or ... documents in the files," such as interview
material not memorialized in notes, or comments left out of the file, or clarification regarding
illegible handwriting and shorthand. Id. at 3-4. This material is squarely available to defendant.
To be sure,
[t]he disclosure of [who was interviewed, what the deponent did to
refresh his recollection of the facts of the case, and what facts
EEOC considered regarding the defendant's defenses] does not
reveal the agency's trial strategy or its analysis of the case. For
example, knowing who was interviewed does not intrude upon the
mental impressions of the attorney. Presumably, the interview
process in an investigation includes people and information which
will be discarded as the attorney begins the analysis and plans
strategy. Similarly, what information a witness reviews in
preparation for a deposition does not reveal the thought processes
of the attorneys. Documents are reviewed by a deponent for many
reasons. There is a distinct difference between asking what was
reviewed as opposed to why it was reviewed.
Equal Emp. Opportunity Comm 'n v. Am. Int 'l Grp., Inc., No. 93 CIV. 6390 (PKL) (RLE), 1994
WL 376052, at • 3 (S.D.N. Y. July 18, 1994). Plaintiffis free to record its objections should thl
questioning stray from this circumscribed ambit, and defendant has already been warned that
continued pursuit of arguments regarding the propriety or sufficiency of the EEOC investigation
would be frivolous and subject them to severe sanction. See ECF Dkt. Entry dated Jan. 20, 20:16.
In full view of the additional limitations imposed by Sterling Jewelers, Judge Kuo's orCler
to permit inquiry at the depositions of EEOC personnel only to the extent that it could lead to ~e
production of factual information that is relevant and material to the underlying lawsuit is neither
clearly erroneous nor contrary to law.
Depositions of District Director Kevin Berry and Enforcement Manager Nieto
Plaintiff also appeals the decision to allow the depositions of District Director Kevin
Berry and Enforcement Manager Arlene Nieto, both of whom EEOC has represented have no .
personal knowledge of the facts related to the underlying lawsuit. While the Court would not
/s/ USDJ ERIC N. VITALIANO
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