Unit Drilling Company et al v. Equal Employment Opportunity Commission et al
Filing
13
MEMORANDUM DECISION AND ORDER granting 2 Motion to Quash; granting 2 Motion for Protective Order Against Subpoena for Deposition of Attorney Kristen Vanorman. Signed by Magistrate Judge Paul M. Warner on 6/19/14 (alt)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
UNIT DRILLING COMPANY and UNIT
CORPORATION,
MEMORANDUM DECISION AND
ORDER
Plaintiffs,
v.
Case No. 2:14mc436
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION and
PATSY CRAIG,
Defendants.
District Judge David Nuffer
Magistrate Judge Paul M. Warner
This matter was referred to Magistrate Judge Paul M. Warner by District Judge David
Nuffer pursuant to 28 U.S.C. § 636(b)(1)(A).1 Before the court is Unit Drilling Company and
Unit Corporation’s (collectively, “Unit”) motion to quash and for a protective order prohibiting
the Equal Employment Opportunity Commission (“EEOC”) from taking the deposition of their
prior counsel.2 The court has carefully reviewed the memoranda submitted by the parties.
Pursuant to civil rule 7-1(f) of the United States District Court for the District of Utah Rules of
Practice, the court elects to determine the motion on the basis of the written memoranda and
finds that oral argument would not be helpful or necessary. See DUCivR 7-1(f).
1
See docket no. 7.
2
See docket no. 2.
RELEVANT BACKGROUND
In February 2009, Patsy Craig (“Ms. Craig”) filed a charge of discrimination against Unit
with the Utah Antidiscrimination and Labor Division (“UALD”) alleging that Unit refused to
hire her to work on its drilling rig because she is a woman. On March 17, 2009, Unit submitted
to the UALD its formal response (“Position Statement”) to the charge of discrimination.
Attorney Kristin VanOrman (“Ms. VanOrman”) authored the Position Statement on behalf of
Unit.
In the Position Statement, Ms. VanOrman explained that Unit did not hire Ms. Craig
because the job she applied for was restricted to men under Title VII’s bona fide occupational
qualification exception. See 42 U.S.C. § 2000e-2(e). Specifically, Ms. Craig sought to work at a
remote drilling rig where eight employees are required to live in a 9 foot by 30 foot bunkhouse
for seven days at a time. The other seven employees at that rig are male. There is one shared
bathroom, no separate changing or sleeping facilities, and no privacy. Ms. VanOrman also
stated that it would be impractical, uneconomical, inefficient, and unsafe for Unit to hold the
position open for Ms. Craig while constructing separate facilities for her.
The EEOC filed an employment discrimination suit against Unit in the United States
District Court for the Northern District of Oklahoma alleging violations of Title VII of the Civil
Rights Act of 1964. On April 9, 2014 the EEOC issued and served a subpoena for the deposition
of Ms. VanOrman. On June 12, 2014, Unit filed the instant motion in this court pursuant to rule
45(d)(3) of the Federal Rules of Civil Procedure.
2
ANALYSIS
Unit argues, inter alia, that allowing the EEOC to depose Ms. VanOrman would violate
the work-product privilege. Specifically, Unit asserts that because Ms. VanOrman represented
Unit in anticipation of the present litigation in arguments made before the UALD, she should not
be compelled to testify in this matter. In response, the EEOC argues that the information it seeks
from Ms. VanOrman is not privileged because it has only requested factual information
regarding the Position Statement. In particular, the EEOC seeks Ms. VanOrman’s knowledge of
the Position Statement’s supporting documents, the factual basis for the Position Statement, and
the identities of the individuals who have knowledge of those facts.
A party may obtain discovery of any nonprivileged matter that is relevant to a claim or
defense of any party. See Fed. R. Civ. P. 26(b)(1). However, a court may limit discovery “for
good cause, issue an order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense” including that the discovery not be had or that it be had
only by a method other than that selected by the party seeking discovery. Fed. R. Civ. P. 26(c).
“While the Federal Rules do not prohibit the deposition of an attorney for a party,
experience teaches that countenancing unbridled depositions of attorneys often invites delay,
disruption of the case, harassment, and unnecessary distractions into collateral matters.” Hay &
Forage Indus. v. Ford New Holland, Inc., 132 F.R.D. 687, 689 (D. Kan. 1990). Thus, in order to
depose Ms. VanOrman, the EEOC must satisfy the three-part test set forth in Shelton v.
American Motors Corporation, 805 F.2d 1323, 1327 (8th Cir. 1986), and adopted by the Tenth
Circuit. See Boughton v. Cotter Corp., 65 F.3d 823, 830 (10th Cir. 1995) (adopting the Shelton
3
test); see also Thiessen v. General Elec. Capital Corp., 267 F.3d 1095, 1112 n.15 (10th Cir.
2001) (“[The] Shelton [test] was adopted by this court in Boughton.”).
Under the Shelton test, he EEOC must demonstrate 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.” Boughton,
65 F.3d at 830. As noted above, the EEOC seeks Ms. VanOrton’s knowledge of the Position
Statement’s supporting documents, the factual basis for the Position Statement, and the identities
of the individuals who have knowledge of those facts. The court concludes that the EEOC has
failed to satisfy the Shelton test with regard to the information it seeks.
First, the EEOC has not adequately shown that the information is unavailable from other
sources. It has not demonstrated that there are no other sources from which it can reasonably
obtain the information. The EEOC “should consider other methods, such as written
interrogatories, requests for production or requests for admissions” from which to obtain that
information. Hay & Forage Indus., 132 F.R.D. at 689.
Second, the EEOC has not demonstrated that the information is not subject to the workproduct privilege. While the work-product privilege protects “documents and tangible things
that are prepared in anticipation of litigation,” Fed. R. Civ. P. 26(b)(3)(A), and the EEOC only
seeks to question Ms. VanOrman regarding the factual basis for the Position Statement, this
court is not persuaded that this line of questioning would not delve into “mental impressions,
conclusions, opinions, or legal theories [Ms. VanOrman] authored in anticipation of [the instant]
litigation.” Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 668 (10th Cir.
2006).
4
Third, the EEOC has failed to convince this court that the information sought is crucial to
preparing its case. The EEOC asserts that Unit’s “true purpose in seeking to quash Ms.
VanOrman’s deposition is to avoid having Ms. VanOrman tell the truth about where she
obtained the information she provided to the UALD about Unit[’s] . . . reasons for not hiring
[Ms.] Craig.”3 The EEOC further argues that either Unit “will be bound by its Position
Statement as an admission or they will be allowed to argue at trial that the Position Statement is
a fabrication or includes multiple factual errors.”4 Because Unit has not asserted that the
underlying facts and documentation supporting the Position Statement are themselves privileged
or have not already been discovered, the EEOC should be able to adequately prepare its case
without deposing Ms. VanOrman.
Based on the foregoing, the court concludes that the EEOC has failed to satisfy the
Shelton factors. As such, Unit’s motion to quash and for a protective order is hereby
GRANTED.
IT IS SO ORDERED.
DATED this 19th day of June, 2014.
BY THE COURT:
PAUL M. WARNER
United States Magistrate Judge
3
Docket no. 8 at 6.
4
Id.
5
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?