Equal Employment Opportunity Commission v. AMAZON.COM SERVICES LLC

Filing 18

MEMO ENDORSED ORDER granting 11 Motion to Strike Document No. [4-12] Exhibit L to Dana Marucci's Declaration filed by Equal Employment Opportunity Commission from the record. ENDORSEMENT: Application GRANTED. The filings at Dk t. Nos. 12 and 13 are accepted as substitutes for Dkt. Nos. 3 and 4 and deemed timely filed. The Clerk of Court is respectfully directed to strike Dkt. No. 4-12, and to close the motion at Dkt. No. 11. (Signed by Judge Lorna G. Schofield on 4/1/2024) (vfr)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
New York District Office

33 Whitehall Street, 5th Floor
New York, NY 10004-2112
Intake Information Group: [phone]
Intake Information Group TTY: [phone]
New York Direct Dial: [phone]
FAX [phone]
Website: www.eeoc.gov

March 27, 2024
Honorable Lorna G. Schofield
Thurgood Marshall
United States Courthouse
40 Foley Square
New York, NY 10007

Application GRANTED. The filings at Dkt. Nos. 12 and 13 are
accepted as substitutes for Dkt. Nos. 3 and 4 and deemed timely
filed. The Clerk of Court is respectfully directed to strike Dkt. No.
4-12, and to close the motion at Dkt. No. 11.
Dated: April 1, 2024
New York, New York

Re: Equal Employment Opportunity Commission v. Amazon.com Services, Inc.
Case No. 1:24-mc-125-lgs
Dear Judge Schofield,
The United States Equal Employment Opportunity Commission (“EEOC”) writes this letter to
request that this Court strike and remove from the electronic case file ECF No. 4-12. 1 The
requested document is Exhibit L to Investigator Dana Marucci’s Declaration and contains her
privileged investigative work product. The EEOC also requests the Court accept the filing of the
corrected Memorandum of Law and Marucci Declaration (filed contemporaneously with this letter
motion) as substitutes to the original filings (ECF No. 3 and 4). Amazon has consented to the
EEOC’s requests contained in this letter motion.
EEOC filed its initial Petition to Enforce Administrative Subpoena and supporting documents on
March 15, 2024. See EEOC’s Pet. to Enforce and supporting documents, ECF Nos. 1, 3, 4 and 7.
On March 25, 2024, Amazon attorney David Schnitzer alerted the EEOC that Exhibit L to Dana
Marucci’s Declaration, ECF No. 4-12, which purported to be a copy of a spreadsheet provided to
EEOC by Amazon, was not in fact a correct copy. The EEOC immediately reviewed its filing and
other investigative documents to determine how the error occurred. It was discovered that the
spreadsheet attached as Exhibit L was not the original supplied by Amazon, but rather reflected
the spreadsheet provided by Amazon plus Investigator Marucci’s investigative work product—
i.e., her notes and mental impressions of the documents produced by Amazon. In filing this work
product as Exhibit L, EEOC inadvertently disclosed privileged investigator work product protected
by the government deliberative process privilege, and thus the document should be removed from
the Electronic Case Filing system.
“An inter— or intra-agency document may be withheld pursuant to the deliberative process
privilege if it is: (1) predecisional, i.e., prepared in order to assist an agency decisionmaker in
arriving at his decision, and (2) deliberative, i.e., actually ... related to the process by which policies
On March 26, 2024, the undersigned attorney along with Amazon attorney David Schnitzer called chambers to
inquire the most appropriate way to make this request. The clerk advised to file this letter motion and the corrected
documents contemporaneously.

1

are formulated.” Nat’l Council of La Raza v. Dep’t of Just., 411 F.3d 350, 356 (2d Cir. 2005)
(quotations and citation omitted). Here, the document in question is predecisional, as it was
prepared to inform the EEOC’s eventual decision on whether or not Amazon discriminated against
its pregnant employees. The document is also deliberative because it contains the investigator’s
mental impressions and interpretations of documents supplied by Amazon in furtherance of
EEOC’s eventual determination. See Commodity Futures Trading Comm’n v. Royal Bank of
Canada, No. 12 CIV. 2497 AKH, 2013 WL 1932120, at *1 (S.D.N.Y. May 8, 2013) (“The
deliberative process privilege protects documents ‘assessing whether [a government agency’s]
investigation should proceed to the next stage in the investigatory process.” (quoting Davis v. Fed.
Trade Comm'n, 1997 WL 73671, at *2 (S.D.N.Y. Feb. 20, 1997))).
Where, as here, there is no debate between the parties that the document is protected work product,
and the disclosure was inadvertent, the Court should remove the document from the ECF filing
system.
Based on the foregoing, the EEOC respectfully requests that this Court order that the document
containing Investigator Marucci’s work product inadvertently filed as ECF No. 4-12 be removed
from the Electronic Case Filing system and no longer be accessible by those outside of the agency.
The EEOC also requests the Court accept the EEOC’s Corrected Memorandum of Law and
Declaration from Dana Marucci filed contemporaneously with this Letter Motion.
The EEOC thanks the Court for its consideration of this matter.
Respectfully submitted,
/s/ Lindsay Sfekas
Lindsay C. Sfekas
Trial Attorney
U.S. Equal Employment Opportunity Commission
New York District Office
[e-mail]
929-506-5284

cc: David Schnitzer, [e-mail]