Equal Employment Opportunity Commission v. FRY'S ELECTRONICS, INC.

Filing 147

ORDER granting in part and denying in part dft's 105 Motion to Compel depositions of three EEOC investigators by Judge Robert S. Lasnik.(RS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
_______________________________________
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EQUAL EMPLOYMENT OPPORTUNITY
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COMMISSION,
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Plaintiff,
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v.
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FRY’S ELECTRONICS, INC.,
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Defendant.
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_______________________________________)

No. C10-1562RSL
ORDER GRANTING IN PART
DEFENDANT’S MOTION TO
COMPEL

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This matter comes before the Court on Fry’s Electronics, Inc.’s “Motion to

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Compel Depositions of EEOC Investigators.” Dkt. # 105. Having reviewed the memoranda,

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declarations, and exhibits submitted by the parties, the Court finds as follows:

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(1) Defendant did not issue a notice of deposition regarding Matthew Clemen or Frances

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Palmer or otherwise indicate that it wanted to depose these individuals until it filed this motion.

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Not surprisingly, the parties did not meet and confer regarding the information defendant hoped

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to obtain from these individuals or any accommodation that could be provided by the EEOC.

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Having failed to satisfy the requirements of Fed. R. Civ. P. 37(a)(1) and LR 37(a)(1)(a) with

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regards to Mr. Clemen and Ms. Palmer, the motion to compel their depositions is DENIED.

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(2) This case will be tried de novo to the jury. The primary issues will be whether Ms.
Rios was sexually harassed and whether Fry’s retaliated against Mr. Lam and Ms. Rios when

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ORDER GRANTING IN PART
DEFENDANT’S MOTION TO COMPEL

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they complained about the harassment. The jury will be asked to decide these issues based on
admissible evidence.
Defendant argues that it must be permitted to depose the EEOC investigator,
William Bennett, to clarify ambiguities in the interview summaries he created and to resolve
conflicts between the summaries and the deposition testimony of Mr. Lam, Ms. Rios, Kathy
Kolder, and Arthur Squires. Whether the interview summaries related to these four individuals
will be admissible at trial is unclear. Assuming one or more of the interview summaries is
admissible, defendant should have an opportunity to question Mr. Bennett regarding (a) the
meaning of any unclear or ambiguous entries, (b) his independent recollection, if any, of certain
statements being made during the interviews, and (c) the process that led to the creation of the
summary in order to confirm or disprove its accuracy. See EEOC v. Cal. Psychiatric
Transitions, 258 F.R.D. 391, 397-98 (E.D. Cal. 2009) (allowing deposition of EEOC investigator
in order “to clarify ambiguities related to the factual aspects of the material” and to resolve
disputes regarding whether particular statements were accurately recorded).
(3) Defendant has expressly disavowed any interest in the investigator’s subjective
opinions or credibility determinations, the scope or adequacy of the overall investigation, or the
deliberative process that led to the filing of this lawsuit. Evidence regarding these topics would
be irrelevant and/or would impinge on the deliberative process or attorney/client privileges. See
Id. Defense counsel shall, therefore, limit the questioning to the topics listed in paragraph (2).
(4) Given the limited and rather perfunctory topics on which Mr. Bennett can be
questioned and the EEOC’s legitimate concerns regarding time away from investigative duties,
Mr. Bennett’s deposition will be limited to one hour at a mutually convenient time and place.

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For all of the foregoing reasons, defendant’s motion to compel the depositions of
three EEOC investigators is GRANTED in part.

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ORDER GRANTING IN PART
DEFENDANT’S MOTION TO COMPEL

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Dated this 21st day of February, 2012.

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A

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Robert S. Lasnik
United States District Judge

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ORDER GRANTING IN PART
DEFENDANT’S MOTION TO COMPEL

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