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Equal Employment Opportunity Commission v. BNSF Railway Co.

United States District Court, D. Kansas

April 18, 2014

BNSF RAILWAY COMPANY, Defendant. KENT DUTY, Plaintiff-Intervenor,


KENNETH G. GALE, Magistrate Judge.

Now before the Court is Defendant's "Motion to Compel Responses to Defendant's First Interrogatories and First Requests for Production of Documents" from Plaintiff EEOC (Doc. 120). For the reasons set forth below, the Court GRANTS in part and DENIES in part this motion.[1] Also before the Court is Defendant's "Motion to Compel Deposition Testimony" from Samuel James, an investigator employed by the EEOC (Doc. 122). For the reasons set forth below, the Court DENIES this motion in its entirety.


This is an employment discrimination case brought under the Americans with Disabilities Act. Plaintiff-Intervenor Kent Duty ("Mr. Duty") applied for a position with Defendant railroad as a locomotive electrician. Mr. Duty was hired subject to a medical examination. He was then denied the position after a medical examination by Defendant opined that he is unable to perform essential functions of the job because of a physical impairment in one of his hands.

Defendant has filed two motions to compel requesting the Court to order Plaintiff to provide supplemental discovery responses (Doc. 120) and to order EEOC investigator Samuel James to respond to certain deposition inquiries that he was instructed by counsel not to answer (Doc. 122). Plaintiff has objected that providing the information at issue would implicate the deliberative process privilege, would improperly disclose materials regarding the EEOC's statutorily-required conciliation efforts, would require disclosure of information protected by the work-product doctrine, would improperly implicate communications and information protected by the common interest privilege, and would require disclosure of information protected by the attorney-client privilege. ( See generally Doc. 135.)

Rather than discuss each discovery request or deposition inquiry individually, Defendant approached its motions to compel by addressing the various categories of objections raised by Plaintiff EEOC. The Court will, therefore, tailor its analysis accordingly.


Fed.R.Civ.P. 26(b) states that "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." As such, the requested information must be both nonprivileged and relevant to be discoverable.[2]

"Discovery relevance is minimal relevance, ' which means it is possible and reasonably calculated that the request will lead to the discovery of admissible evidence." Teichgraeber v. Memorial Union Corp. of Emporia State University, 932 F.Supp. 1263, 1265 (D. Kan. 1996) (internal citation omitted). "Relevance is broadly construed at the discovery stage of the litigation and a request for discovery should be considered relevant if there is any possibility the information sought may be relevant to the subject matter of the action." Smith v. MCI Telecommunications Corp., 137 F.R.D. 25, 27 (D.Kan.1991). Stated another way, "discovery should ordinarily be allowed unless it is clear that the information sought can have no possible bearing on the subject matter of the action." Snowden By and Through Victor v. Connaught Lab., 137 F.R.D. 325, 341 (D.Kan.1991), appeal denied, 1991 WL 60514 (D.Kan. Mar. 29, 1991).

The scope of discovery is broad, but not unlimited. If the proponent has failed to specify how the information is relevant, the Court will not require the respondent to produce the evidence. Gheesling v. Chater, 162 F.R.D. 649 (D. Kan. 1995).

A. The Deliberative Process Privilege.

1. Discovery requests.

Plaintiff EEOC raises the deliberative process privilege in response to Defendant's Requests for Production Nos. 1-24, 31, and 32.[3] ( See generally Doc. 121-1.) The "deliberative process' privilege... protects advice, recommendations, opinions and other material that is part of the deliberative decisionmaking processes of a government agency." Hass v. U.S. Air Force, 848 F.Supp. 926, 930 (D. Kan. 1994) (citing Covington & Burling v. Food and Nutrition Service, 744 F.Supp. 314, 318 (D.D.C.1990)). In order for the privilege to apply, the documents at issue must be predecisional; in other words, "they must have been prepared before the agency's decision to which they relate." Id. (internal citation omitted). "Next, the documents must be sufficiently deliberative; that is, they must contain recommendations or express opinions on legal or policy matters." Id. (citing Nadler v. Department of Justice, 955 F.2d 1479, 1491 (11th Cir.1992)). "Purely factual matters are not exempt, unless they are sufficiently intertwined with deliberative matters." Id. (citing Covington & Burling, 744 F.Supp. at 319).

Of course, as a threshold matter, the information must also be shown to be relevant. Plaintiff EEOC argues that the information sought "has no relevance to this action because this is a de novo proceeding on the merits of EEOC's allegations of discrimination not an adjudication of the propriety of the agency's investigation or determination." (Doc. 135, at 6.) Defendant argues, however, that Plaintiff misunderstands its position.

The issue is that by the very act of suing BNSF and prosecuting a case the agency made itself a party opponent subject to impeachment. The very act of suing and prosecuting a case against BNSF is a representation to any jury that hears this case that EEOC's position on the merits is correct.... BNSF is entitled to challenge the agency's claimed or perceived impartiality, expertise, and exercise of care to avoid an impermissible negative impression arising simply by virtue of the agency's role and the fact that it has sued BNSF.

(Doc. 142, at 5-6.)

A similar argument was made in the case of EEOC v. JBS USA, LLC, by a Defendant moving to compel production of internal EEOC emails relating to the investigation of the Defendant as well as notes from the EEOC investigator. No. 10-2103-PAB-KLM, 2013 WL 5812478 (D. Colo. Oct. 29, 2013). In denying that motion to compel, the Magistrate Judge held that

Defendant's explanation that the documents go to the credibility' of the EEOC's allegations sounds uncomfortably like a back-door attempt to evaluate the adequacy of the EEOC investigation, a subject which is simply off limits. See, e.g., EEOC v. KECO Indus., Inc., 748 F.2d 1097, 1100 (6th Cir.1984); EEOC v. Caterpillar, Inc., 409 F.3d 831, 832-33 (7th Cir. 2005) (holding [n]o case actually holds that the scope of the EEOC's investigation is a justiciable issue in a suit by the EEOC'). In addition, Defendant offers no specific reason why the investigator's post-filing notes relating to the Charging Parties' attorneys could be relevant, and the Court perceives none.
Second, to the extent that Defendant argues that the requested documents contain information about facts and witnesses... and the process [the EEOC] used to investigate, ' the Court is unconvinced. The EEOC's investigatory process is not relevant, for the reason cited above. Moreover, if these types of internal emails were routinely discoverable simply because they refer to facts and witnesses, the deliberative process privilege would be eviscerated. EEOC v. Albertson's LLC, No. 06-cv-01273-CMA-BNB, 2008 WL 4877046 at * 5 (D.Colo. Nov. 12, 2008) (holding that argument that litigant was entitled to discover what information EEOC obtained during its investigation prior to filing of lawsuit as opposed to what purported evidence it put forth after the filing of the lawsuit would eviscerate the deliberative process privilege.') (emphasis in original). A defendant always wants the benefit of the EEOC's analysis..., but that alone is insufficient to overcome the important interests of the privilege, properly asserted.' Id.
The deliberative process privilege shields documents reflecting advisory opinions, recommendations and deliberations compromising part of a process by which governmental decisions and policies are formulated.' Trentadue v. Integrity Comm., 501 F.3d 1215, 1226 (10th Cir. 2007). The purpose of the privilege is to enhance the quality of agency decisions by protecting open and frank discussion among those who make them within the Government.' Id.
The deliberative process privilege has been properly asserted here. In the context of an EEOC investigation, the deliberative process privilege may be invoked to protect from disclosure predecisional documents and other information which reveal the give and take of the consultive process' concerning the EEOC's investigation and its decisions regarding whether and how to pursue an enforcement action. EEOC v. Continental Airlines, Inc., 395 F.Supp.2d 738, 741 (N.D. Ill. 2005).

2013 WL 5812478, at *1-2.

The Requests for Production at issue specifically relate to the EEOC charging and investigatory process (Requests Nos. 1-11, 15, 16), communications with Plaintiff Duty prior to the issuance of his EEOC charge (Request No. 23, 24), communications with BNSF employees (Requests Nos. 14, 17, 31, 32), Defendant's defenses, statements, or contentions (Request No. 5-7), Plaintiff's request for damages (Request No. 12, 13), and communications with individuals who the Court surmises to be experts/consultants (Request Nos. 18, 19, 20, 21, 22). ( See generally Doc. 121-1, at 3-17.) Given the stated subject matter of the document requests at issue, the Court finds the above reasoning from EEOC v. JBS USA, supra, applying the deliberative process privilege to be sound.

Given the subject matter of these requests, the Court finds that Defendant's stated desire to impeach the EEOC at trial is merely an inventive attempt to attack the adequacy of the EEOC's investigation. The Court sees no basis in the law to allow Defendant to do this. As such, Plaintiff's assertion of the deliberative process privilege in regard to the discovery requests at issue is SUSTAINED and this portion of Defendant's Motion to Compel (Doc. 120) is DENIED.

The Court notes that Request No. 20, and portions of Requests Nos. 21 and 22 are not deliberative in nature. Request No. 20 seeks information regarding "amounts paid by you" to medical, technical, or specialized consultants. (Doc. 121-1, at 12.) The Court finds that such documents, which only request information on amounts paid, cannot implicate the deliberative process of the EEOC. The same is true of the portions of Requests Nos. 21 and 22 referencing "any amounts paid to" Terry L. Cordray and Scott Woods, Dsc, PT. Even so, this information is only relevant as it relates to Plaintiff EEOC's deliberative process - and that process is protected from discovery. As such, the documents are irrelevant and will not be produced.

2. Deposition questions.

Plaintiff's counsel also instructed deponent Samuel James, an EEOC investigator, not to respond to various deposition inquiries on the basis of the deliberative process privilege. This is the ...

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