Equal Employment Opportunity Commission v. Frontier Hot-Dip Galvanizing, Inc.
Filing
109
ORDER granting in part 85 Motion for Protective Order; granting in part 93 Motion for Discovery; granting 105 Motion to Compel. Signed by Hon. H. Kenneth Schroeder Jr. on 8/4/2023. (KER)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
v.
16-CV-0691V(Sr)
FRONTIER HOT-DIP GALVANIZING, INC.,
Defendant.
DECISION AND ORDER
This matter was referred to the undersigned by the Hon. Lawrence J.
Vilardo, in accordance with 28 U.S.C. § 636(b), for all pretrial matters and to hear and
report upon dispositive motions. Dkt. #15.
The Equal Employment Opportunity Commission (“EEOC”), commenced
this action pursuant to Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-5(f)(1) & (3), and Section 102 of the Civil Rights Act of 1991,
42 U.S.C. § 1981a, against Frontier Hot-Dip Galvanizing, Inc. (“Frontier”), on behalf of
two black employees (one of whom is Haitian), and 24 similarly aggrieved black
employees (“claimants”), who allege that they were subjected to racial and national
origin discrimination and a hostile work environment and terminated from their
employment after complaining about their work conditions to Frontier and the EEOC.
Dkt. #1.
Currently before the Court are the EEOC’s motions for a protective order
for discovery demands seeking privileged communications and attorney work product
(Dkt. #85)1; to compel defendant to provide its most recent financial statements and tax
returns (Dkt. #93); and to compel production of claimants’ time sheets. Dkt. #105. For
the following reasons, it is recommended that the EEOC’s motions be granted in part.
Privileged Communications
Defendant’s Document Request No.1 seeks all documents evidencing or
reflecting discussions or communications that the EEOC initiated with any claimant prior
to such claimant agreeing to become a claimant in this action. Dkt. #85-6.
Defendant’s Document Request No. 2 seeks all documents evidencing or
reflecting discussions or communications that any claimant initiated with the EEOC prior
to such claimant agreeing to become a claimant in this action. Dkt. #85-6.
Defendant’s Document Request No. 3 seeks all documents that each
claimant provided to the EEOC or any of the EEOC’s representatives prior to such
claimant agreeing to become a claimant in this action. Dkt. #85-6.
Defendant’s Document Request No. 4 seeks all documents that each
claimant received from the EEOC and/or any of the EEOC’s representatives prior to
such claimant agreeing to become a claimant in this action. Dkt. #85-6.
1
The scope of this dispute has narrowed following defendant’s decision to withdraw
interrogatories served upon the claimants (Dkt. #89); what remains is a dispute over Frontier’s
Document Demand Nos. 1-4 and 16.
-2-
Defendant’s Document Request No. 16 seeks all documents for each
claimant relating to, concerning or reflecting any text messages, emails and/or social
media issued by each such claimant with persons other than the EEOC concerning
discrimination or hostile work environment or Frontier or this lawsuit except
communications between the claimant and any other claimant that took place after both
parties to the communication decided to become claimants.
The EEOC asserts that it has produced all non-privileged portions of its
investigative files concerning the underlying charges of discrimination, including the
EEOC’s communications with claimants and potential claimants during the investigation
and any corresponding notes up to the point of conciliation failure; however, the EEOC
argues that communications with claimants or potential claimants after conciliation
failed and the EEOC began contemplating suit, as well as during the course of litigation,
are protected by attorney-client privilege and the attorney work product doctrine. Dkt.
#85, pp.7-8. The EEOC states that “the only information the EEOC has withheld
constitutes privileged communications between the agency and the Claimants or
potential Claimants.” Dkt. #85, p.8. Because claimants were all subjected to the same
hostile work environment, the EEOC argues that once they were contacted by the
EEOC, communications between and among claimants about the lawsuit would be for
the common interest of vindicating their rights. Dkt. #85, p.10.
Defendant responds that the document requests only seek documents
reflecting communications which took place prior to the decision by the individuals to
-3-
become claimants. Dkt. #88, p.8. To the extent that any such documents are protected
by privilege, defendant requests that the EEOC provide a privilege log. Dkt. #88, p.8.
Defendant emphasizes its belief that communications from individuals declining to
become claimants are discoverable and must be produced. Dkt. #88, p.8.
The EEOC replies that its communications with potential claimants are
privileged, regardless of whether the potential claimant ultimately chooses to permit the
EEOC to represent his or her legal interests. Dkt. #90, p.2. As to communications
among claimants, the EEOC argues that any such communications occurring after
contact from the EEOC are protected by the common interest rule. Dkt. #90, p.3. More
specifically, the EEOC argues that once claimants are contacted by the EEOC,
communication among claimants “necessarily concerns their common legal interest in
vindicating their rights as employees subjected to workplace discrimination.” Dkt. #90,
p.3. The EEOC reiterates that it has “produced all non-privileged communications
between the EEOC and Charging Parties . . . as well as between the EEOC and
Claimants, which occurred before the end of the EEOC’s investigation.” Dkt. #90, p.1.
As amended in 2015, Fed. R. Civ. P. 26(b)(1) provides, in relevant part:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely
benefit. Information within the scope of discovery need not
be admissible in evidence to be discoverable.
-4-
Rule 26(b)(3) ordinarily excludes discovery of “documents and tangible things that are
prepared in anticipation of litigation or for trial by or for another party or its
representative Pursuant to Rule 26(b)(4):
When a party withholds information otherwise discoverable
by claiming that the information is privileged or subject to
protection as trial preparation material, the party must: (i)
expressly make the claim; and (ii) describe the nature of the
documents, communications, or tangible things not
produced or disclosed – and do so in a manner that, without
revealing information itself privileged or protected, will
enable other parties to assess the claim.
Local Rule 26(d) provides that the party asserting privilege shall identify the nature of
the privilege and indicate: (a) the type of document; (b) general content of the
document; (c) date of document; and (d) sufficient information to identify the document,
unless divulging such information would cause disclosure of the allegedly privileged
information.
For good cause, the court may issue an order to protect a party from
whom discovery is sought from annoyance, embarrassment, oppression, or undue
burden or expense, including an order, inter alia, limiting the scope of disclosure. Fed.
R. Civ. P. 26(c)(1). Courts have broad discretion to determine when a protective order is
appropriate and what degree of protection is required. Seattle Times Co. v. Rhinehart,
467 U.S. 20, 26 (1984). “The protection of documents covered by the attorney-client
privilege or the work product doctrine constitutes “good cause” for the issuance of a
protective order.” In re American Realty Cap. Props., Inc. Litig., No. 15-MC-40, 2017
WL 11641957, at *2 (S.D.N.Y. Aug. 14, 2017).
-5-
“The attorney-client privilege protects confidential communications
between client and counsel made for the purpose of obtaining or providing legal
assistance.” In re County of Erie, 473 F.3d 413, 418 (2d Cir. 2007). “A party invoking
the attorney-client privilege must show (1) a communication between client and counsel
that (2) was intended to be and was in fact kept confidential, and (3) was made for the
purpose of obtaining or providing legal advice.” Id. at 419. The burden is on the party
asserting the attorney-client privilege to establish each element of this three-part
standard. Koumoulis v. Independent Fin. Mktg. Grp., Inc., 295 F.R.D. 28, 38 (E.D.N.Y.
2013), aff’d 29 F. Supp.3d 142 (E.D.N.Y. 2014).
“The attorney-client privilege can cover communications between EEOC
counsel and the employees upon whose behalf it sues.” EEOC v. Johnson & Higgins,
Inc., 93 CV 5481, 1998 W L 778369, at *4 (S.D.N.Y. 1998); See EEOC v. Pioneer Hotel,
Inc., 2:11-CV-1588, 2014 WL 4987418, at * 6 (D. Nev. Oct. 6, 2014) (“Courts have
recognized an attorney-client relationship between EEOC counsel and the claimants
whose interests the EEOC seeks to protect in the litigation); EEOC v. DiMare Ruskin,
Inc., 2:11-CV-158, 2012 WL 12067868, at *6 (M.D. Fla. Feb. 15, 2012) (“After the
EEOC undertakes to file suit seeking relief for individual victims of discrimination . . . the
EEOC stands in the role of attorney for those individuals . . . who should not be denied
the ability to engage in confidential communications with the attorney seeking relief on
their behalf simply because the suit was filed by the government, as authorized by
statute, rather than by the individuals themselves.”); EEOC v. Scrub, Inc., No. 09 C
4228, 2010 WL 2136807, at *7 (N.D. Ill. May 25, 2010) (“Communications between the
-6-
EEOC and individuals for whom the EEOC seeks relief are . . . privileged by de facto
attorney-client privilege.”); EEOC v. Int’l Profit Assocs., Inc., 206 F.R.D. 215, 219 (N.D.
Ill. Mar. 27, 2002)(“Communications between prospective class members and EEOC
counsel and their agents are protected from disclosure by the attorney-client
privilege.”).
The EEOC’s commencement of a Title VII action “does not automatically
create attorney-client privilege across an entire potential class,” however. Scrub, 2010
WL 2136807, at *7. For the attorney-client relationship to be recognized, the employee
“must have taken some affirmative step to enter into a relationship with the EEOC.”
Pioneer Hotel, 2014 WL 4987418, at *7; See EEOC v. CRST Van Expedited, Inc., No.
C07-95, 2009 WL 136025, at *4 (N.D. Iowa Jan. 20, 2009) (“an attorney-client
relationship is not established until the employee either asks the EEOC for advice . . .
or agrees to become a member of the class.”). Once the employee indicates a
willingness for the EEOC to seek relief, the attorney-client privilege protects an
employee’s communications with the EEOC even if the employee subsequently opts
out of EEOC representation. EEOC v. Tony’s Lounge, Inc., 08-CV-677, 2010 WL
1444874, at *2 (S.D. Ill. April 9, 2010).
Communications may also be protected by the attorney work product
doctrine. The attorney work product doctrine is intended to preserve a zone of privacy in
which a lawyer can prepare and develop legal theories and strategy. United States v.
Adlman, 134 F.3d 1194, 1197 (2d Cir. 1998); See Hickman v. Taylor, 329 U.S. 495
-7-
(1947). To warrant protection as attorney work product, the material at issue must be:
(1) a document or tangible thing; (2) that was prepared in anticipation of litigation; (3) by
or for a party or his representative. Allied Irish Banks, P.L.C. v. Bank of Am., N.A., 252
F.R.D.163, 173 (S.D.N.Y. 2008). A document will be protected as attorney work product
if, “in light of the nature of the document and the factual situation in the particular case,
the document can fairly be said to have been prepared or obtained because of the
prospect of litigation.” Adlman, 135 F.3d at 1202; See Wultz v. Bank of China Ltd., 304
F.R.D. 384, 393-94 (S.D.N.Y. 2015) (“[T]he materials must result from the conduct of
investigative or analytical tasks to aid counsel in preparing for litigation.”).
Within the context of EEOC litigation, that point is commonly deemed to
be after the EEOC has determined that there is reasonable cause to believe that
discrimination has occurred and conciliation efforts have failed. See International Profit
Assocs., 205 F.R.D. at 220 (distinguishing between initial investigation when the EEOC
is a neutral third party and the EEOC’s determination to litigate once reasonable cause
has been found and conciliation has failed). Past this point, statements and notes of
interviews with prospective class members are protected work product. CRST Van
Expedited, 2009 136025, at *4; See Scrub, 2010 WL 2136807, at *9 (completed
questionnaires and interview notes of communications between prospective class
members and EEOC counsel are protected by the attorney work product doctrine).
Statements and notes of interviews of non-parties are also protected work product.
Pioneer Hotel, 2014 WL 4987418, at *4.
-8-
Finally, the common interest doctrine serves to protect the confidentiality
of communications passing from one party to the attorney for another party where a
joint strategy has been decided upon and undertaken by the parties and their
respective counsel. United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989),
cert. denied, 502 U.S. 810 (1991). The doctrine protects “communications made in the
course of an ongoing common enterprise and intended to further the enterprise.” Id.
Stated another way, the common interest doctrine “precludes a waiver of the underlying
privilege concerning confidential communications between the parties made in the
course of an ongoing common enterprise and intended to further the enterprise.”
Schultz v. Milhorat, CV10-103, 2011 WL 13305347, at *2 (E.D.N.Y. April 8, 2011)
(internal quotation omitted). It can protect against waiver of both the attorney-client
privilege and the attorney work-product doctrine. Id.
“In order to demonstrate the applicability of the common interest doctrine,
the party asserting the rule must show that (1) it shares a common legal interest with
the party with whom the information was shared; and (2) the statements for which
protection is sought must have been designed to further that interest.” Id. at *3. The
common interest doctrine has been applied to com munications made between two
individual parties outside of the presence of an attorney; communications between a
party’s attorney and a third party with a common interest; communications between a
party and the attorney of another party with a common interest; and two parties with a
common interest outside of the presence of an attorney. Id. at *4. Whatever the
configuration of individuals sharing a common interest, “the communication will only be
-9-
privileged if it was specifically related to a communication with the attorney made for the
purpose of obtaining or conveying legal advice.” Id.
Applying these principles to the document demands, the Court determines
that any documents or communications exchanged among or evidencing
communications between the EEOC and any claimants subsequent to conciliation
failure are protected by the attorney-client privilege; attorney work product doctrine and
common interest doctrine. Accordingly, the Court grants the EEOC a protective order
precluding disclosure of such documentation. To the extent that the EEOC is claiming
privilege with respect to any such documents or communications preceding conciliation
failure, the EEOC shall provide defendant with a privilege log.
Financial Statements
The EEOC seeks updated financial information from defendant, arguing
that defendant’s financial condition has reportedly changed since its original disclosure
of audited financial statements and federal and state tax returns for 2017 and 2018,
and such information is relevant to its claim for punitive damages. Dkt. #93. The EEOC
notes that defendant is a privately-owned company and that it attempted to question
defendant’s Vice-President, who is responsible for defendant’s accounting, regarding
defendant’s financial condition, but defense counsel instructed the witness not to
answer such questions. Dkt. #93.
-10-
Defendant does not dispute that its financial circumstances will be
relevant to a jury considering an award of punitive damages, but argues that such
disclosure is premature and should not be required until a trial date is set. Dkt. #94.
Defendant notes that it only disclosed the original financial information to facilitate
settlement negotiations. Dkt. #94.
The EEOC’s First Request for the Production of Documents, dated July
12, 2019, seeks Frontier’s Income Tax Returns for 2011 through the present, including
exhibits and attachments; all audited and unaudited Balance Sheets ref lecting assets,
liabilities, and net worth for Frontier for each fiscal year from 2011 through the present,
including supporting documents; all audited and unaudited Profit and Loss statements
for each fiscal year from 2011 through the present, including supporting documents;
cash flow analysis statements for each fiscal year from 2011 through the present; and
all financial statements for each fiscal year from 2011 through the present. Dkt. #93-1,
¶ 31.
Defendant objected to the demand on the grounds that “other than its
most recent financial statements and tax returns the requested documents are not
relevant to the claims and defenses in this action.” Dkt. #93-1, p.14. Defendant
designated the tax returns and financial statements produced during the EEOC’s
investigation as confidential pursuant to the Confidentiality and Protective Order and
declared that such documents are not relevant to the claims in this action. Dkt. #93-1,
p.15.
-11-
Although tax returns are not inherently privileged, courts are generally
reluctant to compel their disclosure because of both “the private nature of the sensitive
information contained therein” and “the public interest in encourag ing the filing by
taxpayers of complete and accurate returns.” Libaire v. Kaplan, 760 F. Supp.2d 288,
294 (E.D.N.Y. 2011), quoting Smith v. Bader, 83 F.R.D. 437, 438 (S.D.N.Y. 1979). To
compel their disclosure, a two-part test must be satisfied: (1) the returns must be
relevant to the subject matter of the action and (2) there must be a compelling need for
the tax returns because the information is not “otherwise readily obtainable.” Id.,
quoting United States v. Nonanno Org. Crim. Family of La Cosa Nostra, 119 F.R.D.
625, 627 (E.D.N.Y. 1988). The requesting party bears the burden of establishing both
elements. Id.
Because a defendant’s financial circumstances, wealth or net worth may
be considered in determining an award of exemplary damages, defendant’s financial
information is relevant to plaintiff’s claim for punitive damages. Renaissance Nutrition,
Inc. v. Jarrett, No. 06-CV-380, 2008 WL 1848600, at *9 (W.D.N.Y. Arpil 23, 2008); See
Sadofsky v. Fiesta Products, LLC, 252 F.R.D. 143, 150 (E.D.N.Y. 2008) (“Tax returns
are considered relevant to the subject matter of an action when a party’s income may
be used to calculate damages.”). Although the courts are split on appropriate timing for
such discovery, this Court believes that pre-trial discovery of defendant’s financial
information is most efficient. See Spin Master Ltd. v. Bureau Veritas Consumer
Products, 08-CV-923, 2016 WL 690819, at *18 (W.D.N.Y. Feb. 22, 2016).
-12-
Given the time that has passed since defendant’s initial disclosure of
financial information, and given defendant’s refusal to answer questions about its
financial condition at deposition, defendant is directed to disclose its most recent
audited annual financial statement or tax return within 30 days of the entry of this
Decision and Order. Defendant will not be required to supplement such information
absent further order of the Court upon good cause shown, e.g., in the event that such
information has become stale by the time of trial.
Time sheets
The EEOC’s First Request for the Production of Documents, dated July
12, 2019, includes a request for the complete personnel files of 25 employees. Dkt.
#105-1, No.1. The document demand defines the term “personnel file” as follows:
“Personnel File” means not only applications for
employment, evaluations, and the like, commonly kept in
some central place and called by that name or something
similar, but also all other documents concerning or primarily
concerning the person referred to, regardless of where kept
and regardless of by whom prepared, including notes taken
during conversations with the person, notes taken during
conversations concerning the person, memoranda and
letters exchanged with the person and those exchanged with
other persons but concerning the person, correspondence
with any state employment service concerning the person,
records of all communications with other employees
concerning the person, investigative files and reports
concerning or substantially concerning the person identified,
pay information, pay history, bonuses, performance
evaluations, memoranda, commendations, warnings and
discipline.
Dkt. #105-1, p.5, #8.
-13-
Defendant’s response, dated November 19, 2019, states as follows:
Defendant objects to this request to the extent it requests
documents relating to individuals other than those identified
by the Plaintiff during its investigation as having been
aggrieved. The Defendant objects to this request to the
extent it seeks documents previously provided or made
available to the Defendants, during the course of its
investigation of the charges by Mitchell and Basquin.
Defendant[] further object[s] to this request to the extent it
seeks the production of personnel files for individuals whom
the Plaintiff knew, based on its investigation were employed
by Coastal Staffing and not the Defendant. Without waiver of
these objections, and subject to the Stipulated conf identiality
and Protective Order entered in this action, the Defendant
has produced the personnel files for those individuals
directly employed by the Plaintiff [sic] and have issued a
subpoena to Coastal Staffing Inc. for the personnel files of
the individuals employed by Coastal Staffing and assigned
to work at Defendant’s facility.
Dkt. #106-1, No.1.
By letter dated March 5, 2020, in response to the EEOC’s subpoena,
Coastal Staffing produced electronic copies of “Employee Hours by Client” reports for
employees assigned to work at defendant for the periods August 2013 through
December 2013, as well as calendar year 2014 and January 2015 through May 2015,
and advised that hard copy records for calendar year 2012 and January 2013 through
August 2013 would be made available for review upon request. Dkt. #106-2.
During the course of depositions of claimants, defendant questioned
certain claimants about time sheets in its possession. Dkt. #105. The EEOC represents
that it was unaware of such documents until they were produced at deposition. Dkt.
#105.
-14-
By email dated January 12, 2023, the EEOC advised defendant that its
First Request for Production of Documents . . . sought the
“Personnel Files” of the Claimants from 2011 to the present,
including time and payroll records. Since Claimant
depositions began, you have produced a small selection of
weekly time sheets showing some hours work for some
Claimants. We have also obtained certain payroll records
from third-party staffing agencies from August 2013 to the
present. As Coastal’s document custodian testified last
week, however, all payroll records from before August 2,
2013 were destroyed last year due to flooding. Frontier’s
weekly records of hours worked is thus the only remaining
source of Claimant hours worked for this period of time.
Please supplement Frontier’s document production to
provide the EEOC with whatever weekly time sheets and
payroll records Frontier has dating from January 1, 2011
through August 1, 2013.
Dkt. #105-4.
By email dated January 19, 2023, defendant objected to the EEOC’s
request on the grounds of relevance and absence of any justification for seeking such
records after the completion of depositions. Dkt. #105-5. Defendant also argued that
the EEOC should have obtained the information sought from Coastal Staffing before
such records were destroyed. Dkt. #105-5.
By email dated February 8, 2023, the EEOC reiterated its request and
emphasized that:
the EEOC did not know Frontier had these historical payroll
records until you began producing them immediately before
Claimant depositions (in fact, sometimes during
depositions). In doing so, Frontier selectively produced time
sheets showing some dates and times that some Claimants
worked. You cannot hand-pick a selection of time sheet-15-
related documents that serve Frontier’s interests, but refuse
to produce similar documents that have been requested by
the EEOC since 2019. Indeed, Frontier’s ready production of
time sheets when it wished to undermines any claim that the
EEOC’s straightforward request imposes a disproportional
burden.
Lastly, you are wrong to focus on Coastal formerly having
documents containing similar information. Frontier has an
independent obligation to produce responsive documents.
Dkt. #105-5.
By email dated February 14, 2023, defendant objected to the EEOC’s
request for documents as untimely and disproportionate to the needs of the case. Dkt.
#105-6, p.6.
By email dated February 17, 2023, the EEOC reiterated that although it
had requested payroll records from 2011 through the present in its discovery demands
in 2019, defendant “has only selectively produced time sheets showing some dates and
times that some Claimants worked.” Dkt. #105-6, p.5.
By email dated February 24, 2023, defendant represented that “all of
Frontier’s documents as to the claimants named by the EEOC in this action have been
provided to the EEOC.” Dkt. #105-6, p.3.
By email dated March 7, 2023, the EEOC requested clarification as to the
scope of its production, questioning whether defendant had “produced all payroll
-16-
records, including time sheets, for Claimants for some period of time . . .“ Dkt. #105-6,
p.2.
By affidavit dated April 28, 2023, defendant’s Operations Manager, Jeffrey
Pruet, states that he has “produced all payroll-type documents with respect to the
Claimants that are relevant to the defense of Frontier and to the issues raised by the
EEOC in this lawsuit.” Dkt. #106-3, ¶ 2. More specifically, Mr. Pruet states that
in 2011 and 2012 – after the claimants were identified by the
EEOC and Frontier was provided with information on the
alleged factual basis for the individual claims - I reviewed the
daily time records and bills received from the staffing
agencies for the claimants and identified and pulled those
time sheets and bills that were relevant to Frontier’s
defenses and to the claims by the specific claimants. These
documents were then used by Frontier[] for purposes of
defense during the depositions of the specific claimants in
those cases where these records were relevant to the
defenses of the claims by the specific claimants.
Dkt. #106-3, ¶ 2. Attached to this affidavit is a Time Sheet for Coastal Staffing of NY,
Inc., which identifies the number of hours 33 individuals worked each day for the for the
week ending March 22, 2015, and is signed by Michael J. Oshirak as Supervisor. Dkt.
#106-4.
The EEOC seeks to compel production of claimants’ weekly time sheets.
Dkt. #105, p.1. The EEOC argues that these records are encompassed in their
discovery demand for personnel files and are relevant to establishing the dates and
hours worked by claimants at defendant’s business. Dkt. #105, p.2.
-17-
Defendant responds that the EEOC’s document demand for personnel
records does not encompass payroll records and notes that the EEOC did not seek to
compel payroll records until depositions had been completed. Dkt. #106. Defendant
argues that the EEOC was aware that Coastal Staffing maintained payroll records, but
failed to inspect them before they were destroyed in a flood. Dkt. #106. Defendant
argues that its use of specific time sheets at deposition does not warrant disclosure of
additional time sheets, which defendant categorizes as irrelevant. Dkt. #106.
The EEOC replies that it only became aware of the existence of the time
sheets when defendant used them at deposition and reiterates that such docum ents
should have been disclosed in response to its discovery demands. Dkt. #107. The
EEOC argues that it is immaterial that Coastal Staffing documents may have contained
similar information; the documents requested by the EEOC are relevant to assessing,
inter alia, when and how long claimants worked at defendant’s facility and who
supervised them. Dkt. #107.
The EEOC’s First Request for Production of Documents defined
personnel records to encompass the time sheets at issue. Even if it hadn’t, it was
appropriate for the EEOC to request defendant’s time sheets upon becoming aware of
such documentation during depositions. Defendant’s use of such documents at
deposition demonstrate their relevance and warrant disclosure of all such
documentation in defendant’s possession. Coastal Staffing’s identification of records
containing similar information does not impact defendant’s obligation to produce
-18-
records in its possession or control. Given the lack of clarity as to the scope of
production by defendant, the Court directs defendant to produce any time sheet from
2011 through the present that includes any claimant in this action that is in defendant’s
possession or control and/or to certify to the EEOC that all such documents have been
produced.
SO ORDERED.
DATED:
Buffalo, New York
August 4, 2023
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
-19-
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?