Equal Employment Opportunity Commission v. Sterling Jewelers, Inc.
Filing
246
DECISION AND ORDER granting in part and denying in part [215, 218] cross-motions to compel. Signed by Hon. Jeremiah J. McCarthy on 5/14/12. (DAZ)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
DECISION AND ORDER
08-CV-00706(A)(M)
v.
STERLING JEWELERS INC.,
Defendant.
________________________________________
This case was referred to me by Hon. Richard J. Arcara for supervision of pretrial
proceedings, including preparation of a decision on non-dispositive motions [22].1 Before me are
the parties’ cross-motions to compel [215, 218]. For the following reasons, the cross-motions are
granted in part and denied in part.
BACKGROUND
The Equal Employment Opportunity Commission (“EEOC”) commenced this
gender discrimination action pursuant to Sections 706 and 707 of Title VII of the Civil Rights
Act of 1964, as amended (42 U.S.C. §§2000e-5(f)(1) and (3) and 2000e-6). The Complaint
alleges that “since at least January 1, 2003, Sterling [Jewelers Inc. (“Sterling”)] has engaged in
unlawful employment practices throughout its stores nationwide . . . by maintaining a system for
making promotion and compensation decisions that is excessively subjective and through which
Sterling has permitted or encouraged managers to deny female employees equal access to
promotion opportunities and the same compensation paid to similarly situated male employees”
1
Bracketed references are to the CM/ECF docket entries.
([1], ¶7(a)), and by “maintain[ing] a system for making promotion and compensation decisions
that is excessively subjective and that has a disparate impact on female retail sales employees”.
Id., ¶8(a).
The parties agreed that this case, including discovery, should be bifurcated, but
were unable to agree whether punitive damages would be addressed during Stage I or Stage II.
In his April 25, 2011 Decision and Order [169], Judge Arcara agreed with Sterling that punitive
damages should be addressed during Stage II, and bifurcated this case as follows:
“Stage I will concern the production of personnel data necessary
for statistical analyses of Sterling’s policies and procedures,
depositions of witnesses with knowledge relevant to the pattern or
practice claims, such as managers familiar with Sterling’s practices
and policies, current or former employees who have experienced or
witnessed discrimination, and statistical or other experts.
Should the trier of fact find liability regarding the pattern or
practice claims, the Court will determine appropriate class-wide
injunctive remedies. At that point, Stage II discovery will
commence, to be followed by a Stage II trial.
Stage II discovery and trial will address issues concerning each
class member’s claim for relief, including whether Sterling can
meet its burden of rebuttal as to each class member, and if not, the
remedies to which that class member is entitled, including back
pay, front pay, and compensatory and punitive damages, if any.”
[169], pp. 14-15.
After Judge Arcara’s decision, a dispute arose as to whether Stage I discovery
would include discovery into the EEOC’s claim under §706 of Title VII of the Civil Rights
-2-
Act of 1964, as amended (42 U.S.C. §2000e-5).2 I concluded that conducting Section 706
discovery during Stage I was inconsistent with Judge Arcara’s bifurcation order. October 7,
2011 Decision and Order [199], p. 8.
Following these decisions and implementation of the Stage I Discovery Plan and
Case Management Order [209], the parties continued to have discovery disputes. After an
informal conference with the parties to resolve those disputes, I directed the parties to file
motions addressing the issues which could not be resolved [212]. These cross-motions ensued.
ANALYSIS
A.
Sterling’s Motion to Compel
1.
Document Requests
In response to Sterling’s motion to compel, the EEOC states that it “has produced
all nonprotected portions of the investigative files for the nineteen charges underlying this action
and all other nonprivileged documents relating to Stage I issues”. EEOC’s Brief [224], p. 7.
According to the EEOC, it has also “repeatedly . . . told Sterling that all nonprivileged materials
currently in its possession have been produced and that [it] will continue to produce additional
responsive and nonprivileged materials as they become available”. Id., p. 8.3 I find these
representations sufficient to render moot all aspects of Sterling’s motion to compel directed at the
2
“A §706 case is based on one or more individual charges or complaints of unlawful
discrimination by an employer, and a §707 is based on a pattern or practice of systemic discrimination by
an employer. . . . [B]oth a §706 case and a §707 case can be filed by the EEOC in its own name ”. EEOC
v. Mitsubishi MotorManufacturing of America, Inc., 990 F. Supp. 1059, 1084 (C.D. Ill. 1998).
3
The EEOC also has a continuing obligation to supplement its discovery responses
pursuant to Fed. R. Civ. P. (“Rule”) 26(e).
-3-
EEOC’s responses to its document requests, other than those challenging privilege designations
or documents withheld on the basis that they relate to Stage II issues.
While Sterling argues that only a small number of the documents produced by the
EEOC are responsive to its document requests (Sterling’s Memorandum of Law [216], p. 5) “the
discovery provisions of the Federal Rules are meant to function without the need for constant
judicial intervention, and that those Rules rely on the honesty and good faith of counsel in
dealing with adversaries”. Hopei Garments (Hong Kong), Ltd. v. Oslo Trading Co., Inc., 1988
WL 25139, *3 (S.D.N.Y. 1988) (citing Penthouse International, Ltd. v. Playboy Enterprises, Inc.,
663 F.2d 371, 390 (2d Cir.1981)). I have “no independent ability to determine whether or not [a
party’s] response was comprehensive and [it] cannot be required to ‘prove a negative’ by
demonstrating that non-existent documents do not exist”. Smith v. Life Investors Insurance Co.
of America, 2009 WL 2045197, *5 (W.D.Pa. 2009).
Therefore, at this time I will rely on the EEOC’s representations concerning its
discovery production.4 However, if Sterling “is able to develop evidence that this representation
is incorrect, the Court will entertain an appropriate motion at that time”. Id.
2.
Privilege Log
In April 2010, the EEOC moved for a protective order to strike Document
Requests Nos. 3, 10-14, 16, 29-30 [109]. In support of its motion, the EEOC argued that these
“requests . . . explicitly call for communications squarely protected by the attorney-client
privilege, common interest privilege, work product doctrine, and the Mediation Agreement”, and
4
The EEOC also has a continuing obligation to supplement its discovery responses
pursuant to Rule 26(e).
-4-
that it “should not be required to respond to [these] improper discovery requests . . . even by
providing a privilege log”. EEOC’s Memorandum of Law [110], pp. 17, 21. In denying this
aspect of the EEOC’s motion, I concluded that “[o]n their face, I do not find that the requests
seek only privileged material. If the EEOC believes that responsive documents are privileged, it
should - as it has done - produce a privilege log of these documents”. July 15, 2010 Decision and
Order [139], p. 8.
The parties disagree as to the scope of this ruling, prompting Sterling to argue that
the EEOC has improperly “lodged blanket objections of various types of privilege” as to these
requests. Sterling’s Memorandum of Law [216], p. 10. Although I believe that my Order was
clear, to avoid any future confusion, my decision was not intended to overrule the EEOC’s
privilege objections in their entirety. I was simply unwilling to conclude that on their face these
requests sought only privileged materials. Rather than striking the requests in their entirety, I
believed that it would be more prudent for the EEOC to identify responsive documents on its
privilege log and to address any disputes on a document-by-document basis. According to Ms.
Malloy’s June 15, 2011 letter ([216-5]), this is what the EEOC has done, and as yet, Sterling has
not challenged any specific documents on the EEOC’s privilege log as being improperly
withheld.
Sterling’s only specific objection is that “[s]everal documents listed on the
EEOC’s amended privilege log relate to . . . ‘Charging Party Information,”’ and that it “is
entitled to production of this ‘Charging Party Information’ to the extent that the identities of the
persons referenced in those documents, along with relevant factual information therein, have not
yet been disclosed.” Sterling’s Memorandum of Law [216], pp. 10-11. The EEOC responds that
-5-
“it has amended its privilege log to clarify those entries” (EEOC’s Brief [224], p. 7) and attaches
its January 4, 2012 updated privilege log. Malloy Declaration [225], Ex. 11.5 Therefore, I deny
this aspect of Sterling’s motion at this time, without prejudice.6 To the extent that the EEOC’s
updated privilege log does not satisfy Sterling’s concerns, including its argument that the EEOC
should produce redacted documents in lieu of withholding them in their entirety, Sterling may
renew its motion with identification of specific documents at issue. The EEOC’s privilege log
appears to also identify documents withheld on the grounds that they apply to Stage II discovery.
Malloy Declaration [225], Ex. 11. If Sterling wishes to make specific challenges to any of these
designations, it may do so in a renewed motion.
Sterling also argues that the EEOC should be compelled to identify information
redacted from document Nos. E000002736-2787 and 2853-2858 produced as part of its
December 2011 document production. Sterling’s Memorandum of Law [216], Point V.
However, I am unable to address the propriety of these redactions without reviewing the
documents. Therefore, by May 25, 2012 the EEOC shall provide me with these unredacted
documents for my in camera review, along with an explanation (copied to Sterling) of why its
redactions are proper. Sterling may respond by June 1, 2012, and I will then decide that issue.
5
Sterling reserves its right to object to the content of this privilege log. Sterling’s
Memorandum of Law [216], p. 11.
6
The EEOC alleges that this aspect of Sterling’s motion seeks to compel “information it
knows has not been withheld”. EEOC’s Brief in Opposition [224], p. 7. This is of particular concern to
me. If either party seeks to compel discovery or opposes such a motion without substantial justification
for doing so, I will consider to imposing appropriate sanctions. See Rule 37(a)(5).
-6-
3.
Electronically Stored Information
Sterling argues that while its requests encompass electronically stored information
(“ESI”), the EEOC “has not produced a single email, and it has produced only a handful of
documents that appear to be print-outs from databases”. Sterling’s Memorandum of Law [216],
p. 14. In response, the EEOC represents that it “has produced all nonprivileged emails from the
investigation (there were approximately 20)”. Malloy Declaration [225], ¶93. It explains that the
“EEOC’s 30(b)(6) witness testified, EEOC investigators maintain their files in paper;
consequently, they print all emails and place them in the file. EEOC’s witness also confirmed
that that is what the investigators did in investigating these 19 charges and that the charge files
are complete. The witness also testified that at the time of these investigations, most investigators
communicated by mail. That correspondence - like the emails - has been produced.” Id.
Sterling also argues that it “has asked the EEOC to confirm that it has searched
the hard drives, network drives, e-mail accounts, personal digital assistants, and the like of
relevant document custodians and preserved all electronic information contained therein”, but
that “the EEOC has not provided this confirmation”. Sterling’s Memorandum of Law [216], p.
14. The EEOC responds that it “has produced relevant ESI - in the form of spreadsheets, emails,
and other electronic documents”. Malloy Declaration [225], ¶94.
Nowhere does the EEOC represent that it has searched its ESI for responsive
documents. Nevertheless, it appears from its representations that all ESI would be included in its
paper files. I conclude that these representations are sufficient at the present time, and will not
require the EEOC to undertake the substantial burden of confirming these representations by a
search of its ESI. However, if during the course of discovery, Sterling learns that the EEOC’s
-7-
paper files may not contain the full extent of its ESI, it may renew this aspect of its motion. In
the interim, the EEOC shall preserve any responsive ESI.
4.
Coordination of Discovery
The EEOC objects to at least one Sterling document request “on the grounds that
it is overbroad, duplicative, and unduly burdensome in that it seeks documents that Sterling
already has sought through its discovery in the private arbitration proceeding”. EEOC’s
Responses to Sterling’s First Set of Requests for Production of Documents [216-1], Request No.
20. Sterling responds that “the fact that similar information may be produced in private
arbitration proceedings does not in any way relieve the EEOC of its discovery obligations in this
action”. Sterling’s Memorandum of Law [216], pp. 12-13.
I agree with Sterling. I previously denied the EEOC’s motion to coordinate
discovery between this case and the arbitration. Thus, to the extent that responsive discovery is
in the “possession, custody, or control” (consistent with the meaning of this phrase under Rule
34(a)(1)) of the EEOC, it must either be produced or identified on its privilege log, irrespective
of whether it was produced to Sterling by the arbitration claimants in the arbitration. To avoid
any confusion as to the scope of the EEOC’s production, the EEOC shall confirm in writing
whether its production thus far has included all documents in its possession, custody or control
and if not, it shall produce these documents or identify them on its privilege log.
-8-
5.
Interrogatory 1
Sterling’s Interrogatory 1 requests the EEOC to “[i]dentify each person who
provided information used to answer these interrogatories and/or each and every person who
assisted in developing answers to these interrogatories”, and to “identify the specific
interrogatory number or numbers for which that person provided information or assistance and
describe the information or assistance provided”. EEOC’s Supplemental Responses to
Sterling’s Interrogatories [216-2], p. 2. The EEOC responded that “EEOC attorneys and
attorneys for the arbitration claimants assisted in preparation of EEOC’s interrogatory
responses.” Id.
Sterling argues that this response is insufficient because it “does not identify the
particular attorneys, the specific Interrogatory number or numbers for which that person provided
information or assistance, and it does not describe the information or assistance provided, as
Sterling requested.” Sterling’s Memorandum of Law [216], pp. 13-14, n.7. Since the EEOC
does not specifically respond to this aspect of Sterling’s motion, I will grant this aspect of
Sterling’s motion.
6.
Interrogatory 16
Sterling’s Interrogatory 16 asks the EEOC to identify the expert witnesses it
intends to call at trial. EEOC’s Responses to Sterling’s Interrogatories Numbered 13-19 [216-2],
p. 5. The EEOC responds that “expert disclosures are not yet due” under the Case Management
Order, and that since “Sterling has not produced workforce data to EEOC [, it] therefore has no
admissible statistical compilations or data analyses to produce”. EEOC’s Brief in Opposition
-9-
[224], p. 5. It adds that “once Sterling produces workforce data for EEOC to provide to an
expert, EEOC will be able to identify any testifying expert and serve its expert-related discovery
by the deadline”. Id.
Sterling cites Rule 26(a)(2)(B)(ii) in arguing that it is entitled to the disclosure of
the information underlying the EEOC’s testifying experts’ opinions (Sterling’s Memorandum of
Law [216], p. 5). However, Rule 26(a)(2)(B)(ii) requires that this information be included in the
EEOC’s expert report. Pursuant to the Stage I Discovery Plan and Case Management Order
([209]), which the parties jointly proposed, the EEOC is not required to identify its expert
witnesses and provide expert reports until December 14, 2012. Id., ¶15. The EEOC states that it
“will disclose all information required by Rule 26(a)(2) by the Court-ordered deadline for expert
discovery, including all facts or data considered by its testifying expert in forming his or her
opinions.” EEOC’s Brief in Opposition [224], p. 12. Therefore, this aspect of Sterling’s motion
to compel is denied, without prejudice to renewal at a later date.
7.
Interrogatories 2-9, 11-15 and 18
This aspect of Sterling’s motion to compel can be divided into three parts: 1)
challenging the sufficiency of the EEOC’s identification of witnesses (Sterling’s Memorandum
of Law [216], pp. 5-6); 2) challenging the EEOC’s objections that Sterling is seeking information
beyond the scope of Stage I discovery (id., pp. 5-6); and 3) challenging the sufficiency of the
responses and objections to those requesting the factual basis for the EEOC’s pattern or practice
claims (id., pp. 6-9).
-10-
a.
Identification of Witnesses
Sterling’s Interrogatory 2 asks the EEOC to “identify each and every person [it]
believes has knowledge of any facts in anyway relating to any issue raised by the Complaint . . .
providing [their contact information]; a detailed description of the knowledge believed to be
possessed by each such person; all relevant issues or facts which each such person is believed to
possess; and all documents, if any, which each such person is believed to have examined, has in
his or her possession or has knowledge.” EEOC’s Responses to Sterling’s First Set of
Interrogatories [216-2], pp. 2-3. In response, the EEOC asserts a litany of objections, including
that the interrogatory “seeks information and documents that are beyond the scope of issues
relevant to Stage I discovery”. Id., p. 3. Notwithstanding these objections, the EEOC notes that
“potentially any and all current and former employees and managers of Sterling” may be
responsive to the Interrogatory, but specifically identifies 131 individuals in addition to the 25
individuals named in its initial disclosure. Id., pp. 3-7. Of these individuals, the EEOC alleges
that 114 have provided declarations detailing their knowledge of the claims in this case. Id. For
the balance of the individuals identified, including the 19 charging parties, it has produced the
nonpriviledged portions of its investigative files. Id., p. 3; EEOC’s Brief in Opposition [224],
p. 6.
Sterling argues that the EEOC has “cherry-picked” those witnesses it intends to
call as Stage I witnesses. Sterling’s Memorandum of Law [216], p. 5. However, the EEOC has
represented that it “is not withholding the identity of any witnesses with discoverable information
about Stage I issues”, and will continue to identify Stage I witness and relevant documents from
Stage I witnesses as discovery progresses (EEOC’s Brief in Opposition [224], p. 6). At this time,
-11-
that representation is sufficient to moot this aspect of Sterling’s motion. See Smith, 2009 WL
2045197 at *5.
b.
Stage I Discovery
Sterling argues that the EEOC’s objections that the information it seeks is
beyond the scope of Stage I discovery “should be overruled”, and that it “should be ordered to
supplement its responses to Interrogatories Nos. 2-9, 11-15 and 18”. Sterling’s Memorandum of
Law [216], p. 6.7 It also seeks “an Order compelling the EEOC . . . to identify all persons whom
the EEOC believes have knowledge of any facts relating to any issue raised by the Complaint and
to state the substance of their knowledge”. Id. (citing Interrogatory 2).
Notwithstanding my ruling that conducting Section 706 discovery during Stage I
was inconsistent with Judge Arcara’s bifurcation order ([199], p. 8), Sterling continues to seek
discovery regarding “any issued raised by the Complaint” (see, e.g., Interrogatories 2, 5) and asks
the EEOC to identify witnesses with knowledge of “any facts relating to any issue raised by the
Complaint”. Sterling’s Memorandum of Law [216], p. 6. On their face, these requests would
appear to include discovery into the Section 706 allegations of the Complaint [199].
By contrast to the bifurcated framework here, Sterling relies on Serrano v. Cintas
Corp., 2010 WL 3789690 (E.D. Mich 2010) (Sterling’s Memorandum of Law [216], p.6), which
was not bifurcated into Stage I and Stage II discovery and did not include a Section 707 pattern
7
The EEOC’s responses to Interrogatories 4, 9, 12-14, and 18 do not raise the objection
that they seek discovery beyond the scope of Stage I.
-12-
or practice claim. See Serrano v. Cintas Corp., 711 F.Supp.2d 782, 784 (E.D.Mich. 2010),
motion to certify appeal denied, 2010 WL 940164. 8
I recognize that Stage I and Stage II discovery may not readily be
compartmentalized, since “[i]n proving pattern and practice liability . . . the EEOC, usually
rel[ies] on individual testimony concerning specific instances of discrimination (so-called
‘anecdotal evidence’), statistical data and expert opinions concerning statistical data”. EEOC v.
Carrols Corp., 215 F.R.D. 46, 50 (N.D.N.Y. 2003). However, as noted by the EEOC, a number of
Sterling’s interrogatories clearly seek Stage II discovery by requesting information concerning
damages. See e.g., Interrogatory 6 (“For each allegedly injured individual for whom the EEOC
seeks back pay damages, identify . . . the amount of back pay sought, and the computations
leading to such an amount”); Interrogatory 7 (“For each current or former employee of Defendant
who you contend Defendants [sic] failed to promote because of gender . . . state the amount of
back pay and other damages the EEOC seeks on behalf of each such individual”); Interrogatory 8
(“For each current or former employee of Defendant who you contend was deterred from
applying for a promotion with Defendant . . . state the amount of back pay and other damages the
EEOC seeks on behalf of each such individual”); and Interrogatory 11 (“If the EEOC knows of
any statements made by any individuals concerning Plaintiff’s claims of discrimination . . . or the
8
In my July 15, 2010 Decision and Order ([139]) I relied on Serrano v. Cintas, 2010 WL
746430 (E.D. Mich. 2010) in concluding that, with respect to Interrogatory 3, “Sterling is not entitled to
know how the EEOC identified the individuals that were allegedly discriminated against as protected
work product, but that it is entitled to the identity of these individuals”. Id., p. 9. To the extent this aspect
of that Decision and Order is inconsistent with to Judge Arcara’s April 25, 2011 Decision and Order
bifurcating the case [169] and with my October 7, 2011 Decision and Order [199] addressing
bifurcation, the later decisions control.
-13-
damages caused therefrom”). Therefore, I see no reason to overrule the EEOC’s objections that
Sterling is requesting information beyond Stage I discovery with respect to these interrogatories.
However, I reach a different conclusion with respect Interrogatories 3 and 15.
Interrogatory 3 asks the EEOC to “[d]escribe in detail [its] efforts . . .to determine the identities
of any current or former employee of Defendant who was paid less than male counterparts . . .
and who purportedly were denied and/or did not receive a promotion or pay increase due to their
gender.” EEOC’s Responses to Sterling’s First Set of Interrogatories [216-2], Ex. B, p. 7. I fail to
see how the identification of efforts used to locate current or former employees has anything to
do with Stage II discovery.
Interrogatory 15 asks the EEOC to “[i]dentify all legal or administrative
proceedings (including, but not limited to, civil actions, criminal actions, and charges of
discrimination) to which [31 current and former female employees of Sterling] ha[ve] been a
party”. EEOC’s Responses to Sterling’s Interrogatories Numbered 13-19 [216-2], p. 4.
As discussed above, anecdotal evidence of discrimination may be used in proving pattern or
practice liability. See EEOC v. Carrols Corp., 215 F.R.D. at 50. These proceeding may include
anecdotal evidence of discrimination that could be used in proving pattern or practice liability.
Thus, unless the EEOC confirms that it will not rely on such evidence in establishing its pattern
or practice claim, I am unable to sustain the EEOC’s objection.
c.
Basis of the EEOC’s Claims
Sterling argues that “[p]resumably, the EEOC had a factual basis for bringing [its]
specific allegations before filing its Complaint”, and that Interrogatories 9 and 18, “merely ask[]
-14-
the EEOC to take a stand and identify that information”. Sterling’s Memorandum of Law [216],
pp. 6-7.
•
Interrogatory 9 asks the EEOC to “[i]dentify all ‘system[s] for making
promotions and compensation decisions’ the EEOC claims are ‘excessively
subjective’ and which EEOC claims Defendant utilized to permit or encourage
gender discrimination.” EEOC’s Responses to Sterling’s First Set of
Interrogatories [216-2], p. 12.
•
Interrogatory 18 asks the EEOC to “explain in detail [its] basis for claiming [in
paragraph 10 of the Complaint] that any alleged ‘unlawful employment practices
complained of in paragraphs 7-8 [ ] were and are intentional’”. EEOC’s
Responses to Sterling’s Interrogatories Numbered 13-19 [216-2], p. 6.
With respect to Interrogatories 5, 9, 13, and 14, Sterling also argues that “[t]o test
the EEOC’s allegation that Sterling had a systematic practice of discriminating on the basis of
sex . . . the EEOC must provide information in the EEOC’s possession regarding Sterling’s pay
practices for its male employees, as the time has come for the EEOC to explain how in intends to
prove its case and what facts support its lawsuit”. Sterling’s Memorandum of Law [216], p. 8.
•
Interrogatory 5 asks the EEOC to “describe in detail the discriminatory treatment
[each allegedly injured individual identified in response to Interrogatory 4]
experienced, identifying each incident of alleged discrimination, the agent of
Defendant who you contend made the discriminatory decisions”. EEOC’s
Responses to Sterling’s First Set of Interrogatories [216-2], pp. 8-9.
•
Interrogatory 13 asks the EEOC to produce a variety of information for
Sterling’s male employees who were allegedly paid higher wages than their
similarly situated female counterparts. Id., pp. 14-15.
•
Interrogatory 14 asks the EEOC to “[i]dentify any current and/or former female
employees whom Plaintiff is aware received a pay raise and/or promotion during
her employment with Defendant and identify any circumstances surrounding that
pay raise and/or promotion of which Plaintiff is aware”. Id., p. 15.
-15-
Without identifying which interrogatories it is referencing, the EEOC argues that
“Sterling has served contention interrogatories on EEOC that would require EEOC to set forth
every fact and piece of evidence that EEOC’s attorney’s believe is relevant”, and that
“[n]umerous courts have held that interrogatories such as these ‘. . . are inherently improper’”.
EEOC’s Brief in Opposition [224], p. 12 (quoting Clean Earth Remediation & Construction
Services, Inc. v. American International Group, Inc., 245 F.R.D. 137 (S.D.N.Y. 2007)).
“Contention interrogatories ask a party: to state what it contends; to state whether it makes a
specified contention; to state all the facts upon which it bases a contention; to take a position, and
explain or defend that position, with respect to how the law applies to facts; or to state the legal
or theoretical basis for a contention. . . . However, questions seeking the identification of
witnesses or documents are not contention interrogatories.” B. Braun Medical Inc. v. Abbott
Laboratories, 155 F.R.D. 525, 527 (E.D.Pa. 1994).
It appears that at least some of Sterling’s interrogatories may be considered
contention interrogatories seeking identification of facts upon which the EEOC bases its claims.
The EEOC argues that this type of “contention interrogatory, if appropriate at all, should be
answered at the end of discovery”. EEOC’s Brief in Opposition [224], p. 15. “Courts will . . .
often defer ordering answers to contention interrogatories until the end of discovery and a
requesting party will be required to show how an earlier response assists the goals of discovery
such as exposing a substantial basis for a motion under Fed.R.Civ.P. 11 and 56.” Brown v.
United States, 179 F.R.D. 101, 105 (W.D.N.Y. 1998)(Foschio, M.J.). See Rule 33(a)(2) (“An
interrogatory is not objectionable merely because it asks for an opinion or contention that relates
to fact or the application of law to fact, but the court may order that the interrogatory need not be
-16-
answered until designated discovery is complete, or until a pretrial conference or some other
time”); Roth v. Bank of Commonwealth, 1988 WL 43963, *5 (W.D.N.Y. 1988) (Elfvin, J.)
(“This Court finds that twenty-four of the forty-eight interrogatories are contention
interrogatories and need not be answered until the substantial completion of pretrial discovery”).
Considering that the exchange of discovery is at a relatively early stage and
remains ongoing, at this time, I will sustain the EEOC’s objections to these interrogatories as
being premature or seeking information currently in Sterling’s own control. However, I will not
attempt to guess which interrogatories the EEOC believes are contention interrogatories, and
since Sterling did not have the opportunity to reply to the EEOC’s argument that these constitute
improper contention interrogatories, I am reluctant to address whether Sterling has asked any
improper contention interrogatories. If the EEOC does not supplement its response to these
interrogatories as discovery progresses, including those allegedly directed at the EEOC’s
investigation before filing the Complaint, Sterling may renew its motion to compel, and at that
time I will address whether Sterling’s contention interrogatories are permissible.
Therefore, this aspect of Sterling’s motion is denied, without prejudice to
renewal.
B. The EEOC’s Motion to Compel
1.
Interrogatories 2 and 3
There are two interrogatories in dispute. The EEOC’s Interrogatory 2 asks
Sterling to “[i]dentify each employee who worked for Sterling in retail operations at any time
during the relevant time period” and to provide their contact information, social security number,
-17-
employee number, position, store number(s) where the employee worked, sex, date of hire and
termination/resignation and reason for termination/resignation. Malloy Declaration [219], Ex. 4,
p. 5. The EEOC has indicated that this request is intended “to cover all positions in retail
operations . . . includ[ing] sales associates, store managers and assistant managers, district
managers, and regional managers”. Sterling’s Opposing Brief [223], Ex. 1, pp. 1-2. Sterling
objected to this interrogatory as being overly broad, unduly broad, and seeking information not
reasonably calculated to lead to the discovery of admissible evidence. Malloy Declaration [219],
Ex. 9, p. 4. It also objected that the production of complete addresses, telephone numbers, social
security numbers, and reasons for termination/resignation are of a “highly personal and
confidential nature” and “legally protected from disclosure”. Id, pp. 4-5. The EEOC has since
clarified that it is not asking Sterling to identify current managers (id., p. 2) and that it is
requesting this information from January 1, 2000 to the present. EEOC’s Brief in Support [220],
p. 2.
Interrogatory 3 asks Sterling to “[i]dentify each person who has relevant
knowledge concerning any claim, defense, allegation, denial, or contention in this action, and for
each person identified, describe the substance of that person’s knowledge.” Malloy Declaration
[219], Ex. 4, p. 6. Sterling objected to his request, but nevertheless identified 107 “complaining
parties”, including their city and state of residence. Id., Ex. 9, pp. 5-10. It has also identified
Sterling personnel by name and title and has more generally identified categories of Sterling
employees, including “district , general and/or store managers”, “regional vice presidents” , and
“certain employees of the EEOC (including its investigators)”. Id., pp. 10-11. Sterling’s
-18-
interrogatory response to Interrogatory 3 also states that the its “personnel may be contacted
through . . . counsel” Id.
“‘It is plain that the scope of discovery through interrogatories and requests for
production of documents is limited only by relevance and burdensomeness, and in an EEOC case
the discovery scope is extensive.’” EEOC v. University of Phoenix, Inc., 2007 WL 1302578, *3
(D.N.M. 2007) (quoting Rich v. Martin Marietta Corp., 522 F.2d 333, 343 (10th Cir.1975)). As
a threshold issue, the parties dispute which party bears the burden of proof of establishing
relevance. The EEOC cites cases holding that “[a] party resisting discovery has the burden of
showing ‘specifically how, despite the broad and liberal construction afforded the federal
discovery rules, each interrogatory is not relevant or how each question is overly broad,
burdensome or oppressive, . . . by submitting affidavits or offering evidence revealing the nature
of the burden’” (Arias-Zeballos v. Tan, 2007 WL 1599150, *2 (S.D.N.Y. 2007), quoted in
EEOC’s Brief in Support [220], p. 3), whereas Sterling cites authority that as the proponent of
the request, the EEOC bears the burden of showing relevance (Sterling’s Brief in Opposition
[223], pp. 4-5, citing EEOC v. Supervalu, Inc., 2010 WL 5071196, *2 (N.D.Ill. 2010)).
Although I acknowledge the authority cited by the EEOC, I believe that the
prevailing view is that “[t]he burden of demonstrating relevance is on the party seeking
discovery.” Lent v. Signature Truck Systems, Inc., 2010 WL 1707998, *2 (W.D.N.Y. 2010)
(Scott, M.J.). It is only “[w]here . . . the documents are relevant, [that] the burden is upon the
party seeking non-disclosure”. Penthouse International, Ltd., 663 F.2d at 391.
The scope of discovery is broad, and the information sought by the EEOC is
considered relevant so long as it “appears reasonably calculated to lead to the discovery of
-19-
admissible evidence”. Rule 26(b)(1). The EEOC argues that this information is relevant since it
“needs to interview current and former employees to discover anecdotal evidence necessary to
prove its claims that Sterling has engaged in widespread discrimination”. EEOC’s Brief in
Support [220], pp. 8-9. I agree with the EEOC.
“The EEOC is charged with investigating pattern and practice claims and, in order
to do so, needs access to relevant employees.” EEOC v. Morgan Stanley & Co., Inc., 2002 WL
31108179, *1 (S.D.N.Y. 2002); EEOC v. Lexus Serramonte, 2006 WL 2329510, *2 (N.D.Cal.
2006), objections overruled, 2006 WL 2567878 (“A court may reasonably order a defendant to
provide contact information, including telephone numbers and addresses for its employees from
the relevant class period”). “Defendant has access to this information, and plaintiff should have
the same access.” Babbitt v. Albertson’s, Inc., 1992 WL 605652, *6 (N.D.Cal. 1992) (permitting
class certification discovery to include the production of the names, addresses, telephone
numbers and social security numbers of current and past employees since 1985).
Sterling argues that “the EEOC’s request is based on the theoretical possibility
that some employees might have relevant information” and thereby “amounts to an improper
fishing expedition.” Sterling’s Opposing Brief [223], p. 5. I disagree. “The EEOC is not fishing.
Rather, the EEOC is pursuing its congressional mandate to enforce Title VII through the pursuit
of litigation, including, relevant discovery that would support its litigation. Without basic
identifying information such as addresses, the EEOC cannot locate potential witnesses. . . .
Further, there may be additional employees, whom [the claimant] does know or has not
identified, who either experienced or witnessed . . . discrimination . . . and the EEOC is entitled
-20-
to discovery regarding those individuals.” EEOC v. University of Phoenix, Inc., 2007 WL
1302578 at *6.9
I also agree with the EEOC that its ability “to contact potential witnesses is
meaningless if [it] does not have contact information for employees and former employees”.
EEOC’s Brief in Support [220], p. 9. See EEOC v. University of Phoenix, Inc., 2007 WL
1302578 at *6 (“if any of the witnesses have moved since being employed . . . , finding them
without identifiers such as social security numbers and dates of birth may be significantly more
difficult and expensive”). To the extent Sterling has “privacy concerns” about the production of
social security numbers, the EEOC has agreed that this information would be protected under the
Confidentiality Order. EEOC’s Brief [220], p. 9 n. 2.
Since the EEOC has demonstrated that the information sought is relevant, the
burden shifts to Sterling to show why disclosure is not warranted. It argues that “the burden . . .
to provide this broad universe of information for so many individuals over such a long period of
time outweighs the potential relevance it has to the litigation. The EEOC’s request encompasses
approximately 75,000 employees, and workforce data for some of those individuals was purged
prior to the institution of the EEOC’s proceedings and recovering and producing that data would
add additional burdens to Sterling.” Sterling’s Brief in Opposition [223], p. 6. Despite its claims
9
Compare with US EEOC v. ABM Industries Inc., 2008 WL 5385618, *8 (E.D.Cal.
2008) (“It appears to the Court that the only purpose of statewide discovery at this point, would be to
allow Plaintiffs to search for other employees with colorable claims, with no factual nexus other than the
fact that they do or did work for Defendants. In the Court’s view, this would constitute a ‘fishing
expedition’ and an inappropriate use of discovery”).
-21-
of burden, according to Michael D. Lynch, Sterling’s Vice President of Employee Relations,
Sterling “has compiled and prepared for production workforce data dating back to January 1,
2001”, but that producing records back to January 1, 2000 would be additionally burdensome
“as the information was purged and may not be recoverable”. [223-3], ¶10.10
Sterling’s claims of undue burden are also difficult to reconcile with the fact that
it has already compiled the information responsive to EEOC’s interrogatories to January 1, 2001.
To the extent it has done so, this information shall be produced. It is not clear to me whether the
workforce data compiled by Sterling covers the full extent of data requested by the EEOC (e.g.,
the reason for termination/resignation and contact information). Should this production not
satisfy the full breadth of information sought by the EEOC, it may renew its motion.
While the information compiled by Sterling does not cover the full time frame
requested by the EEOC, if the EEOC “cannot establish a pattern or practice . . . during that time
frame, it is doubtful that an additional [period] of information will get the job done.” EEOC v.
CRST Van Expedited, Inc., 2009 WL 395211, *3 (N.D.Iowa 2009) (requiring production of
sexual harassment complaints for a period of 45 1/2 months, but denying an additional three
months of information).
Therefore, at this time I will not require Sterling to undertake the additional
burden of attempting to compile responsive information from January 1, 2000 to January 1, 2001.
10
While Mr. Lynch’s declaration does not address why this data was compiled, Arbitrator
Roberts has ordered Sterling to produced the data. Malloy Declaration [219], ¶40. While the effect of
producing the work force data in the AAA arbitration of Jock, et al. v. Sterling Jewelers, Inc. may have
may have been to moot Sterling’s arguments of undue burden, this should not be construed as
reconsideration of my decision ([97]) denying coordination of discovery between this case and the
arbitration. Sterling’s Opposing Brief [223], p. 16.
-22-
However, if the EEOC can demonstrate a particularized need for obtaining information dating
back to 2000, it may renew its motion for this production.
2.
Ex Parte Interviews with Former Employees and Current Nonmanagerial
Employees
While the EEOC disputes Sterling’s ability to require it to contact its employees
through Sterling’s counsel (EEOC’s Brief in Support [220], p. 13), Sterling argues that the
EEOC has never conferred with it about this issue before raising it in its motion, and “requests an
opportunity to be heard after conferring with the EEOC on this issue”. Sterling’s Brief [223], p.
9. Without the benefit of Sterling’s substantive response to EEOC’s argument, it does seem that
ex parte interviews with certain classes of Sterling’s employees may be justified. See Judd v.
Take-Two Interactive Software, Inc., 2008 WL 906076, *1 (S.D.N.Y. 2008) (“As a general rule,
a party cannot prevent an adverse party from conducting ex parte interviews with its former
employees”); Chambers v. Capital Cities/ABC, 159 F.R.D. 441, 443 (S.D.N.Y. 1995)(“Where ex
parte interviews with current employees are permitted, only non-managerial personnel are
usually allowed to be so interviewed”).
Nevertheless, I agree with Sterling that the EEOC’s motion is premature, and deny
this aspect of the EEOC’s motion on this basis, without prejudice to renewal following further
discussion between the parties.
3.
Redactions
The EEOC argues that Sterling has “redacted relevant information from numerous
documents”, and seeks an order requiring “Sterling to produce unredacted versions of all
documents”. EEOC’s Supporting Brief [220], pp. 15, 17. However, it expressly identifies only
-23-
one redacted document (Malloy Declaration [219], Ex. 22) which it has submitted to me under
seal pursuant to the Confidentiality Order. Id., p. 16.
Given the limited nature of what is before me, I am in no position to address the
propriety of all of Sterling’s redactions. With respect to Exhibit 22, Sterling argues that by
submitting it “in camera”,11 the EEOC has “deprived Sterling of the opportunity to analyze
them and explain to the Court the basis for the redactions”. Sterling’s Brief in Opposition [223],
p. 14. Sterling asks that if I am “inclined to consider the documents improperly submitted by the
EEOC”, that it be afforded the “opportunity to address the issue”. Id.
Although I am not certain what Sterling will argue that it has not already argued or
could have argued,12 out of an abundance of caution I will provide Sterling with a brief
opportunity to provide me with an unredacted copy of Exhibit 22 for my in camera review and to
respond to this aspect of the EEOC’s motion to compel. This shall be accomplished by May 25,
2012. In the interim, this may also provide the EEOC with the opportunity to identify with
particularity any additional redactions it is challenging.
11
I question why Sterling would not have had an opportunity to review the exhibit when it
produced it to the EEOC. Thus, Sterling’s argument that the EEOC had an obligation to put it on notice
of the submission appears misplaced. See Sterling’s Opposing Brief [223], p. 13, citing Parisi v.
Rochester Cardiothoractic Associates, 159 F.R.D. 406, 407 (W.D.N.Y. 1995)(Fisher, M.J.) (addressing
an in camera ex parte review)).
12
It appears that the EEOC has not complied with the Confidentiality Order which requires
that any party seeking to use Confidential Information in a court filing “must give the Producing Party at
least ten . . . business days advance notice of its intent” to permit them to move for a protective order or
to seal ([206], ¶16). See Maatman Declaration [223-4], ¶6. Nevertheless, this is a nullity because by
filing the exhibit under seal, the EEOC has preserved its confidentiality, and Sterling has since filed a
motion seeking to maintain this document under seal [229].
-24-
4.
Self-Critical Analysis
The EEOC argues that “[i]n response to a number of document requests and in its
privilege log, Sterling has asserted a ‘self-critical analysis privilege’”, which has not been
recognized in the Second Circuit as a matter of federal law. EEOC’s Brief [220], p. 22.
Alternatively, it argues that at best, this has been recognized as a qualified privilege, but that
“Sterling has made no effort to show that it would even apply”. Id. at p. 23.
“The self-critical analysis privilege is ‘a qualified privilege that protects from
disclosure documents reflecting a party’s own forthright evaluation of its compliance with
regulatory, legal or professional standards.’ . . . ‘Where a party has conducted a confidential
analysis of its own performance in a matter implicating a substantial public interest, with a view
towards correction of errors, a recognized self-critical analysis privilege may relieve the party of
its obligation to provide the purely analytical material, absent a showing of need by the other
side, in order to encourage continued candid self-evaluations.’” Robinson v. Troyan, 2011 WL
5416324, *4 (E.D.N.Y. 2011) (quoting In re Winstar Communications, Securities Litigation,
2007 WL 4115812, *1 (S.D.N.Y. 2007)). However, this privilege is “not universally
recognized”. In re Winstar Communications, Securities Litigation, 2007 WL 4115812 at *1.
“Although some federal courts have recognized a self-critical analysis privilege, its continuing
viability is an open question.” Ovesen v. Mitsubishi Heavy Industries of America Inc., 2009 WL
195853, *2 (S.D.N.Y. 2009).
Interpreting the Supreme Court’s decision in University of Pennsylvania v. EEOC,
493 U.S. 182, 189 (1990) (which rejected a ‘peer-review’ privilege) as “implicitly reject[ing] the
rationale for a self-evaluation privilege”, and relying on the fact that no Circuit Courts, including
-25-
the Second Circuit, have accepted the privilege, this court has rejected the self-evaluation
privilege. See Roberts v. Hunt, 187 F.R.D. 71, 75-76 (W.D.N.Y. 1999) (Foschio, M.J.); Robbins
& Myers, Inc. v. J.M. Huber Corp., 2003 WL 21384304, *4 (W.D.N.Y. 2003)(Elfvin, J.)(“This
Court declines to recognize the privilege of self-critical analysis at this time”, citing Robinson v.
United States, 205 F.R.D. 104, 108–109 (W.D.N.Y. 2001) (Curtin, J.) (noting that the
self-critical analysis privilege has not been adopted by the Second Circuit Court of Appeals and
has been rejected in this district)).13
As Magistrate Judge Foschio explained in Roberts (187 F.R.D. at 76), “it is not
reasonable to believe that organizations will not comply with employment discrimination laws
unless independent surveys revealing potential violations are deemed privileged. As noted,
organizations have a self-interest in achieving compliance with the law and social expectations.
Managers need only to scrutinize their workforce to determine if there are indications of potential
discrimination. Governmental agencies have no less an incentive to promote equal opportunity in
the workplace.”
I recognize that a number of decisions from the Southern District of New York
have recognized the existence of this privilege. See e.g., Robinson, 2011 WL 5416324 at *4; In
re Winstar Communications, Securities Litigation, 2007 WL 4115812 at *1. However, even
those courts “have found that it is a qualified, not absolute, privilege”. Francis v. United States,
2011 WL 2224509, *7 (S.D.N.Y. 2011). “At a minimum, the party invoking the privilege must
demonstrate that ‘the information . . . result[ed] from a critical self-analysis undertaken by the
13
In Robinson, a tort case, Judge Curtin ultimately treated it as a qualified privilege and
analyzed the documents in camera. 205 F.R.D. at 110.
-26-
party seeking protection; [that] the public [has] a strong interest in preserving the free flow of the
type of information sought; [and that] the information [is] of the type whose flow would be
curtailed if the discovery were allowed.’ Note, ‘The Privilege of Self–Critical Analysis,’ 96 Harv.
L.Rev. 1083, 1086 (1983). Furthermore, the documents at issue must be purely evaluative, . . .
and must have been prepared and retained on a confidential basis.” Wimer v. Sealand Service,
Inc., 1997 WL 375661, *1 (S.D.N.Y. 1997).
Even if I were to recognize the critical self-analysis privilege, Sterling has not
established that it should apply here. It merely argues that “[i]f efforts made to investigate and
remediate alleged employment discrimination are subject to discovery in subsequent litigation, it
will have a chilling effect on such investigations and remedial efforts.” Sterling’s Brief in
Opposition [223], p. 15. This plainly is insufficient to meet Sterling’s burden of establishing the
applicability of this privilege. Therefore, this aspect of the EEOC’s motion is granted.
CONCLUSION
Sterling’s Motion to Compel
For these reasons, Sterling’s motion to compel ([215]) is granted to the extent it
seeks 1) to overrule the EEOC’s objection to Sterling document requests as seeking documents
Sterling has already sought through its discovery in the arbitration proceeding, 2) to overrule the
EEOC’s objections to interrogatories 3 and 15 as being beyond the scope of Stage I discovery,
and 3) to compel a complete response to Interrogatory 1; but it is denied to the extent it seeks
1) to compel further responses to its document requests, including the production of ESI, 2) to
compel an amended privilege log, and 3) to compel supplemental responses to Interrogatories 2,
-27-
4-9, 11-14, and 18, without prejudice to renewal. I reserve decision on that aspect of the motion
challenging the EEOC’s redactions ([216], Point V) pending my in camera review of the
unredacted documents and the parties’ supplemental submissions.
Based upon these rulings, by May 25, 2012: 1) the EEOC shall supplement its
response to Interrogatory 1; 2) the EEOC shall supplement its responses to Interrogatories 3 and
15, if necessary, to the extent its objections have been overruled; 3) the EEOC shall confirm in
writing whether its production thus far has included all documents in its possession, custody or
control and if not, the EEOC shall produce these documents or identify them on its privilege log;
and 4) the EEOC shall produce to me for my in camera review unredacted copies of document
Nos. E000002736-2787 and 2853-2858, and may accompany this production with a written
explanation (with a copy to Sterling) as to why its redactions are proper, and Sterling may
respond in writing by June 1, 2012.
EEOC’s Motion to Compel
The EEOC’s motion to compel ([218]) is granted to the extent that it seeks 1)
Sterling to produce the workforce data it has compiled dating back to January 1, 2001, and 2) to
overrule Sterling’s reliance on the self-critical analysis privilege; but it is denied to the extent
that it seeks to conduct ex parte interviews with Sterling’s former employees, without prejudice
to renewal. I reserve decision on that aspect of the motion challenging Sterling’s redactions
([218], pp. 15-16) pending my in camera review of the unredacted documents and the parties’
supplemental submissions.
-28-
Based upon these rulings, by May 25, 2012 Sterling shall 1) produce the
workforce data it has compiled to the EEOC; and 2) produce for my in camera review an
unredacted version of Exhibit 22 and may accompany this production with a written explanation
(with a copy to the EEOC) as to why its redactions are proper, and the EEOC may respond in
writing by June 1, 2012.
SO ORDERED.
Dated: May 14, 2012
/s/ Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge
-29-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?