Pemberton v. Lloyd's Register Drilling Integrity Services, Inc.
Filing
21
MEMORANDUM AND ORDER denying 12 MOTION to Strike Use of Position Statement and Motion for Protective Order. (Signed by Judge Keith P Ellison) Parties notified.(gclair, 4)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DAVID PEMBERTON,
vs.
Plaintiff,
LLOYD'S REGISTER DRILLING
INTEGRITY SERVICES, INC.,
Defendant.
§
§
§
§
§
§
§
§
§
November 17, 2016
David J. Bradley, Clerk
CIVIL ACTION NO. 4: 16-CV-01732
MEMORANDUM & ORDER
Before the Court is the Motion to Strike Use of Position Statement and Motion for
Protective Order (Doc. No. 12) submitted by Defendants Lloyd's Register Drilling Integrity
Services, Inc. (LRDIS") and Ricky Eaton (collectively, "Defendants"). After considering
Defendants' motion, the responses thereto and applicable law, the Court finds that the motion
must be denied.
I.
BACKGROUND
This is an age discrimination case. Plaintiff David Pemberton was fired from his position
at LRDIS at the age of 66. (Complaint, Doc. No. 7, ,-[ 2.) Mr. Pemberton worked at LRDIS from
2013 to 2015 as a Compliance Lead Manager, where he conducted safety inspections and
certifications of offshore deep-water oil rigs in the Gulf of Mexico. (Doc. No. 7, ,-[ 9.) According
to Mr. Pemberton, he had years of industry experience, and his colleagues and customers
regarded him highly. (Doc. No. 7, ,-[ 9.) In the summer of 2015, Mr. Pemberton received an
unfavorable performance review rating, after his manager was allegedly pressured to lower Mr.
Pemberton's evaluation score. (Doc. No. 7, ,-[ 12.) That September, Ricky Eaton, a manager at
LRDIS purportedly told a fellow senior employee that a specific customer did not want to work
1
with Mr. Pemberton. (Doc.
No.7,~~
14-15.) Mr. Pemberton was shocked when Mr. Eaton told
him about the customer complaint. Mr. Pemberton then reported his conversation with Mr. Eaton
to his supervisor and another manager. Neither manager investigated the customer complaint
allegations. On September 17, 2015, LRDIS fired Mr. Pemberton. (Doc.
No.7,~
16-17.)
After his termination, Mr. Pemberton filed a charge of age discrimination with the Texas
Workforce Commission - Civil Rights Division ("TWC-CRD") and the Equal Employment
Opportunity Commission ("EEOC"). (Doc. No. 7,
~
23.) LRDIS then submitted a Position
Statement to the EEOC, denying any unfair treatment for any unlawful reason, and citing Mr.
Pemberton's attitude and poor teamwork as grounds for termination. (Doc. No. 7, Ex. 6.) The
Position Statement referenced complaints by LRDIS' clients, although it did not mention any by
name. (Doc. No.7, Ex. 6.) In LRDIS' cover letter to the EEOC, it labeled the Position Statement
as confidential commercial information; the EEOC found LRDIS' assertion of confidentiality
unwarranted. (See Doc. No. 12, Exs. 2-3.) Defendants now request that the Court strike any use
of the Position Statement, arguing it is privileged material and hearsay.
II.
LEGALSTANDARD
"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.... Information within this
scope of discovery need not be admissible in evidence to be discoverable." Fed. R. Civ. P.
26(b)(1). 1 Upon a motion from a party, the court may issue "an order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense, including . . .
1
Plaintiff argued Defendant's motion was untimely under Fed. R. Civ. P. 12(t). In their reply
brief, Defendants explain that they seek to strike the Position Statement pursuant to Rule 26, not
Rule 12(t). The Court agrees with Defendants that rules governing discovery proceedings apply
here. Thus, the Court does not need to consider timeliness under Rule 12(t).
2
forbidding the disclosure of discovery." Fed. R. Civ. P. 26(c).
"Ordinarily, a party may not discover documents and tangible things that are prepared in
anticipation of litigation or for trial." Fed. R. Civ. P. 26(b)(3)(A). A party may not, ''without
purported necessity or justification ... secure written statements, private memoranda and personal
recollections prepared or formed by an adverse party's counsel in the course of his legal duties. . . .
Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the
mental impressions of an attorney." Hickman v. Taylor, 329 U.S. 495, 510 (1947).
III.
ANALYSIS
Defendants argue the Position Statement should be excluded because it is privileged
material and hearsay. The Court finds the Position Statement does not fall within attorney-client
privileged communication or attorney work product. Additionally, the Position Statement is not
hearsay. It would therefore be inappropriate to strike use of the Position Statement.
A. The Position Statement is not a privileged communication or attorney work
product.
Defendants incorrectly believed that their request to the EEOC for confidentiality
converted the Position Statement into privileged communication. LRDIS announced in its cover
letter accompanying the Position Statement: "The Company considers its position statement and
other materials submitted to the Commission to be confidential commercial information pursuant
to the nondisclosure rules under Section 706(b), Title VII of the Civil Rights Act of 1964 and 5
U.S.C. 552(b)." (Doc. No. 12, Ex. 2.) Section 706(b) states:
If the Commission determines after such investigation that there is reasonable
cause to believe that the charge is true, the Commission shall endeavor to
eliminate any such alleged unlawful employment practice by informal methods of
conference, conciliation, and persuasion. Nothing said or done during and as a
part of such informal endeavors may be made public by the Commission, its
officers or employees, or used as evidence in a subsequent proceeding without the
3
written consent of the persons concerned. 42 U.S.C. § 2000e-5 (2015).
Section 706(b) pertains to statements made during efforts of "conference, conciliation,
and persuasion." The Fifth Circuit has "distinguished between purely factual material related to
the merits of the charge and proposals and counter-proposals of compromise made by the parties
during the EEOC's efforts to conciliate." Olitsky v. Spencer Gifts, Inc., 964 F.2d 1471, 1477 (5th
Cir. 1992) (internal citations omitted). In 0/itsky, the court held that a position letter-which
denied that the employer had discriminated and gave alternate reasons for firing the complaining
employee-did not constitute conciliation evidence. 964 F.2d at 1477. LRDIS' only allusion to
conciliation was its request to the EEOC to issue a No Cause finding and dismiss Mr.
Pemberton's charge; there was no mention of a settlement offer or conversation. (Doc. No.7, Ex.
6.) As in 0/itsky, the Position Statement's content related to factual information regarding the
merits of Mr. Pemberton's claim. Because the Position Statement was not conciliation evidence,
§ 706(b) does not apply to this document, and it may be disclosed.
The Position Statement also does not qualify as work product. Work product is an
attorney's preparation for a case, reflected in "interviews,
statements, memoranda,
correspondence, briefs, mental impressions, [and] personal beliefs," among other things.
Hickman, 329 U.S. at 511. The work product protection allows "a lawyer [to] work with a certain
degree of privacy" to "assemble information, sift what he considers to be the relevant from the
irrelevant facts, prepare his legal theories and plan his strategy without undue and needless
interference." !d. Defendant argues that the Position Statement is work product because it was
prepared in anticipation of litigation and reflects counsel's legal argument. But not "all written
materials obtained or prepared by an adversary's counsel with an eye toward litigation are
necessarily free from discovery." !d.
4
The Position Statement is unlike true work product. Courts have excluded opinion letters
prepared by an expert upon counsel's request, studies prepared by an accountant in anticipation
of litigation, and earlier drafts of position letters. See, e.g., Treat v. Tom Kelley Buick Pontiac
GMC, Inc., No. 1:08-CV-173, 2009 WL 1543651, at *10 (N.D. Ind. June 2, 2009); Pacamor
Bearings, Inc. v. Minebea Co., 918 F. Supp. 491, 514 (D.N.H. 1996). The Position Statement is
distinct from any of these. Although counsel prepared it in anticipation of litigation, it does not
reflect the lawyer's attempts to process her legal theories and strategies free from interference.
Nor was the Position Statement an exchange of notes or mental impressions between the
LRDIC's lawyers and the EEOC. The policy behind protecting work product-to promote
effective representation by allowing a lawyer to securely write down her thoughts in preparation
for trial-does not call for restricting disclosure of the Position Statement. 2
B. The Position Statement is not hearsay.
Defendant also seeks to exclude the Position Statement on hearsay grounds, citing
Federal Rules of Evidence 613, 801, 802 and 805. However, the Position Statement is not
hearsay. If Plaintiff attempts to introduce the Position Statement in evidence, it will be "a
statement offered against an opposing party ... made by the party's agent or employee on a
matter within the scope of that relationship and while it existed." Fed. R. Evid. 80l(d)(2)(D).
LRDIS's counsel submitted the letter to the EEOC. Because the "attorney is the agent of his
client," the Position Statement is a statement made by Defendants' agent. Rogers v. The Marshal,
68 U.S. 644,651 (1863). See also Kimble v. D. J. McDuffy, Inc., 648 F.2d 340, 354, n.4 (5th Cir.
2
The Parties discuss whether Defendants waived a privilege by sending the Position Statement
to the EEOC. Because the Court finds that the Position Statement is neither privileged
communications nor work product, the Court does not need to address the waiver question.
5
1981) ("in the eyes of the law the agent is considered as standing in the place of the principal").
The Position Statement is therefore not hearsay under Fed. R. Evid. 801(d).
The Fifth Circuit has repeatedly found position statements admissible. See, e.g. Burton v.
Freescale Semiconductor, Inc., 798 F.3d 222, 237 (5th Cir. 2015); Miller v. Raytheon Co., 716
F.3d 138, 144 (5th Cir. 2013); Mcinnis v. Alamo Cmty. Coli. Dist., 207 F.3d 276, 282 (5th Cir.
2000). Plaintiff argues the Position Statement is relevant to show inconsistent reasons given by
Defendants for firing Mr. Pemberton. The Fifth Circuit has explicitly allowed employees to use
position statements containing false information to show pretext. See Burton, 798 F.3d at 237
("A jury may view erroneous statements in an EEOC position statement as circumstantial
evidence of discrimination"); see also Miller, 716 F.3d at 144. Although one court upheld the
exclusion of an employer's letter to the EEOC that would reveal its changing positions over the
course of litigation, Lindsey v. Prive Corp., 161 F.3d 886, 894-95 (5th Cir. 1998), that decision
is in conflict with subsequent appellate decisions. Given prior courts' admission of position
statements in similar circumstances, it would be inappropriate to prohibit any and all future uses
of the Position Statement at this time.
IV.
CONCLUSION
Defendants have failed to show that the Position Statement is privileged or hearsay. In
this early stage of litigation, the Court is hesitant to strike, or issue a protective order as to, a
potentially relevant document that is not subject to any exclusion. The Court hereby DENIES
Defendants' Motion to Strike Use ofPosition Statement and Motion for Protective Order.
IT IS SO ORDERED.
SIGNED at Houston, Texas on the 16th ofNovember, 2016.
6
KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
7
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?