Equal Employment Opportunity Commission v. Wal-Mart Stores East, LP

Filing 157

ORDER granting 92 Motion to Seal Document ; granting in part and denying in part 107 Motion to Seal Document ; granting 125 Motion to Seal Document ; denying as moot 130 Motion to Seal Document ; granting 142 Motion to Seal Document. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
v.

Case No. 17-C-70

WAL-MART STORES EAST LP,
Defendant.

DECISION AND ORDER

This matter comes before the court on the parties’ motions to restrict documents and
objections to confidential designations.

Neither bare assertions of confidentiality nor the

agreement of the parties is enough to warrant restricting documents from the public. In order to
show good cause to restrict a document, the party requesting protection must “analyze in detail,
document by document, the propriety of secrecy, providing reasons and legal citations.” Baxter
Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 548 (7th Cir. 2002).
Walmart filed a motion requesting that certain medical records attached as exhibits to the
declaration of Warren Buliox in support of Defendant’s May 17, 2019 motion for summary
judgment be restricted because they contain personal information about Spaeth’s health. Dkt. No.
92. I am satisfied that Walmart has met its burden to restrict Dr. David Smith’s office notes
attached as Exhibit H, Dr. David Thompson’s two expert reports attached as Exhibit J, and Holy
Family Memorial Medical Center medical records attached as Exhibit K.
Walmart also moved to restrict access to the excerpts of the deposition testimony of David
Smith, M.D. attached to the declaration of Emery Harlan in support of Walmart’s motion to

exclude certain testimony of David Smith, M.D. The EEOC expressed opposition to the motion.
As a result, Walmart filed an amended motion requesting that the unredacted materials contained
in Exhibit B to the declaration of Warren Buliox in support of Defendant’s amended motion to
exclude certain testimony of David Smith, M.D. be restricted to the court and case participants
only because certain portions of the deposition transcript contain references to the private medical
information of Spaeth or others. The deposition excerpts attached to the declaration of Warren
Buliox (Dkt. No. 143-2) are identical to the excerpts attached to the declaration of Emery Harlan
(Dkt. No. 129-1). The court will grant the amended motion to restrict. Although the original
motion is denied as moot, the excerpts attached to the declaration of Emery Harlan will remain
restricted because those excerpts contain references to the same private medical information of
Spaeth or others.
The EEOC filed a motion requesting that the following documents be restricted: (1)
Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion for Summary Judgment;
(2) Plaintiff’s Statement of Additional Facts; (3) Plaintiff’s Response in Opposition to
Defendant’s Proposed Findings of Fact; (4) Exhibit 9 Accommodation Training; and (5) Exhibit
10 Thompson’s Deposition. Dkt. No. 107. These documents will remain restricted.
In addition, the EEOC objects to the confidential designation of certain evidence it
submitted in support of its opposition to summary judgment. In particular, it objects to the
confidential designation of (1) Exhibit 1 Moss’ attendance report; (2) Exhibit 2 Moss’ deposition
excerpts; (3) Exhibits 3 and 4 the Rule 30(b)(6) deposition excerpts; (4) Exhibit 5 Becker’s
attendance report; (5) Exhibit 6 the ethics investigation; (6) Exhibit 7 Morgan’s deposition; and
(7) Exhibit 8 Abitz’ deposition. It requests that the court lift the confidential designation and
order the evidence unsealed. Relatedly, Walmart moved to restrict access to the table of

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information relating to employees rehired following termination attached as Exhibit B to the
Supplemental Declaration of Lee Spude and Walmart’s response to the EEOC’s statement of
additional facts in opposition to summary judgment. Dkt. No. 125. It seeks to restrict information
concerning a listing of eight third-party associates with details about disciplinary action those
associates received, information pertaining to a confidential internal investigation Walmart
conducted, and information related to the attendance records of two associates, including whether
those associates took FLMA leave.
As to the attendance records of the two associates, Walmart asserts that the privacy rights
of these non-party employees should be protected and that it is willing to stipulate to the number
of approved early departures for these associates and the time period to which those approvals
were made. The court agrees that the non-party employees have a significant privacy interest in
these records that outweighs the public’s interest to access to those documents. See Kalberer v.
Am. Family Mut. Ins. Co., No. 2:13-cv-02278, 2014 WL 5780383, at *1 (D. Nev. Nov. 5, 2014)
(recognizing the “significant interest of non-party employees in keeping their employment
files . . . secret” (alterations in original) (citation omitted)); Doxie v. Volunteers of Am., Southeast,
Inc., No. 3:12-cv-3702, 2014 WL 12606651, at *2 (N.D. Ala. Aug. 7, 2014). Based on Walmart’s
willingness to stipulate to the number of approved early departures for these associates and the
time period to which those approvals were made, the court will overrule the EEOC’s objection to
the confidentiality designation of these documents and order that they remain restricted.
As to the material related to Walmart’s ethics investigation, Walmart does not object to
public disclosure of the results of its internal investigation but objects to the disclosure of
segments of the confidential file and deposition discussions of its processes. It maintains that,
while any conclusions reached in the investigation may be relevant to the issue of why Spaeth

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was not reinstated, what occurred during the internal investigation after the decision to terminate
Spaeth’s employment is not relevant to the issue of whether Walmart discriminated against Spaeth
or failed to accommodate her or discharged her because of her disability. Walmart contends that
it undertook safeguards to protect the information obtained in the investigation and advised
associates that statements and information given during the investigation are confidential.
Walmart’s need for associates to be forthcoming and cooperate during internal investigations
satisfies the good cause requirement. Accordingly, the EEOC’s objections are overruled and the
documents related to the internal investigation will remain restricted to case participants.
IT IS THEREFORE ORDERED that Walmart’s motion to restrict documents (Dkt. No.
92) is GRANTED. Exhibits H, J, and K to the declaration of Warren Buliox (Dkt. Nos. 101-8,
101-10, and 101-11) will remain restricted.
IT IS FURTHER ORDERED that Walmart’s amended motion to restrict access to
certain materials attached to the Declaration of Emery Harlan in support of Defendant’s motion
to exclude certain testimony of David Smith, M.D. (Dkt. No. 142) is GRANTED. Exhibit B to
the declaration of Warren Buliox (Dkt. No. 143-2) will remain restricted.
IT IS FURTHER ORDERED that Walmart’s motion to restrict access to certain
materials attached to the Declaration of Emery Harlan in support of Defendant’s motion to
exclude certain testimony of David Smith, M.D. (Dkt. No. 130) is DENIED as moot. Exhibit A
to the declaration of Emery Harlan (Dkt. No. 129-1), which is identical to Exhibit B to the
declaration of Warren Buliox (Dkt. No. 143-2), will nevertheless remain restricted for the reasons
explained regarding the amended motion.
IT IS FURTHER ORDERED that the EEOC’s motion to seal and objections to
confidential designations (Dkt. No. 107) is GRANTED-IN-PART and DENIED-IN-PART.

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The motion is granted with respect to the EEOC’s request to restrict certain documents, and those
documents will remain restricted. The motion is denied with respect to its objections to certain
confidential designations, and the court will not unseal those documents.
IT IS FURTHER ORDERED that Walmart’s motion to restrict access to certain
materials filed in support of summary judgment (Dkt. No. 125) is GRANTED, and those
documents will remain restricted.
Dated at Green Bay, Wisconsin this 29th day of January, 2020.
s/ William C. Griesbach
William C. Griesbach, District Judge
United States District Court

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