Equal Employment Opportunity Commission v. Unit Drilling Company et al
Filing
209
OPINION AND ORDER by Magistrate Judge Paul J Cleary ; granting 183 Motion for Miscellaneous Relief (kjp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
PATSY CRAIG,
Intervenor-Plaintiff,
v.
UNIT DRILLING COMPANY,
Defendant.
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Case No. 13-CV-147-TCK-PJC
OPINION AND ORDER
This matter is before the Court on Plaintiff Equal Employment
Opportunity Commission’s (“EEOC”) Motion for Leave to Take Deposition and
Obtain Documents Based on Renewed 30(b)(6) Testimony. [Dkt. No. 183]. As
usual, EEOC has requested an expedited ruling.1 In the pending motion the
EEOC seeks, yet again, to determine the factual basis for Unit Drilling Co.’s
(“Unit”) response to a charge of gender discrimination filed by PlaintiffIntervenor Patsy Craig.2
This is at least the tenth occasion on which EEOC has requested an
expedited ruling on a motion due to impending scheduling deadlines. See Dkt.
Nos. 84, 98, 103, 114, 132, 141, 148, 149, 171 & 185.
1
The response was contained in a letter (“the VanOrman letter”) to the
Utah Anti-Discrimination and Labor Division (“UALD”) and authored by attorney
Kristin VanOrman (“VanOrman”) on Unit’s behalf.
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EEOC complains that Unit has failed twice to adequately prepare its
corporate designee on this subject and that it now should be allowed to depose
VanOrman because there is no other means available to secure the information
it seeks. The VanOrman letter has been the subject of several previous Court
rulings. E.g., E.E.O.C. v. Unit Drilling Co., 2014 WL 3572219 (N.D.Okla. July 21,
2014; E.E.O.C. v. Unit Drilling Co., 2014 WL 3548845 (N.D.Okla. July 17, 2014).
See also Dkt. Nos. 131, 145, 146, 167, & 169.
In addition, EEOC’s effort to depose VanOrman, pursuant to subpoena, was
the subject of a Memorandum Decision and Order issued by the U. S. District
Court for the District of Utah. Unit Drilling Company v. E.E.O.C., 2014 WL
2800755 (D.Utah June 19, 2014). In that decision, U.S. Magistrate Judge Paul M.
Warner quashed the subpoena, finding that EEOC had failed to satisfy the
criteria set forth in Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th
Cir. 1986) regarding deposition of opposing counsel. Within one week of that
ruling, the EEOC asked Magistrate Judge Warner to reconsider his decision to
quash the subpoena. That Motion to Reconsider is still pending in the Utah
Court.
EEOC first took a Rule 30(b)(6) deposition regarding the VanOrman letter
on June 19-19, 2014.3 On June 24, 2014, EEOC sought leave to take an
additional Rule 30(b)(6) examination, because Unit’s witness had failed to
3
Discovery cutoff was June 20, 2014.
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adequately educate himself on the subject of the VanOrman letter in
preparation for the first Rule 30(b)(6) deposition. This Court agreed and on July
17, 2014, the Court directed a second Rule 30(b)(6) deposition. [Dkt. No. 167].
The second Rule 30(b)(6) deposition was held on July 29, 2014. The pending
motion was filed nearly three weeks later, on August 15, 2014.4
DISCUSSION
Even after preparation for a second Rule 30(b)(6) deposition regarding the
VanOrman letter, Unit was still unable to explain the grounds for the letter.
Pursuant to Shelton, depositions of opposing counsel are permitted only under
limited conditions “where the party seeking to take the deposition has shown
that (1) no other means exist to obtain the information than to depose opposing
counsel; (2) the information sought is relevant and nonprivileged; and (3) the
information is crucial to the preparation of the case. Id., at 1327 (internal
citation omitted).5 This Court has previously held that the factual basis for the
VanOrman letter is relevant, for purposes of Fed. R. Civ. P. 26, and is not
privileged. After reviewing the latest deposition of Unit’s corporate
representative, the Court finds that Unit’s corporate position is that it does not
know the basis for the assertions made in the VanOrman letter. However, Unit
The delay is peculiar in light of EEOC’s many requests for expedited
treatment of its various motions.
5
The Tenth Circuit approved the Shelton criteria in Boughton v. Cotter Corp.,
65 F.3d 823, 830 (10th Cir. 1995). The Court stated, however, that a protective
order is appropriate where one or more of the Shelton factors are not met. Id.
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contends that the assertions contained in the letter are false and that Unit’s
reason for not hiring Patsy Craig is entirely different than the reasons proffered
in VanOrman’s letter.
As this Court has previously noted, EEOC is entitled to explore the factual
basis for the assertions in the VanOrman letter. The information is relevant and
not privileged. It now appears that despite Unit’s efforts, the company still does
not know how its attorney came to make the factual assertions she did to the
UALD. The Court concludes that under these circumstances, the only means
available to explore the basis for this letter is to depose VanOrman.
Since the credibility of Unit’s explanation for its job hiring decisions will
be a focus of this case, the material does appear critical to EEOC’s case.
In this Court’s view, a short deposition of VanOrman limited to the
factual basis of her letter is in line with the holding of Shelton.
THEREFORE, the EEOC’s Motion [Dkt. No. 183] is GRANTED under the
conditions outlined below.
(1) The deposition shall last no more than three (3) hours, unless there is
improper interference with the questioning.
(2) Questioning is limited to the factual basis for VanOrman’s assertions in
the letter and who at Unit reviewed the letter before it was sent to the
UALD. Any attempt to invade the province of attorney-client privilege
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or work-product protection may result in immediate termination of
the deposition.
(3) The deposition is to be scheduled and completed as soon as possible –
by September 17, 2014, at the latest.
This Court emphasizes that discovery in this case has long ended and no
further discovery motions will be entertained.
DATED this 2nd day of September 2014.
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