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Equal Employment Opportunity Commission v. Peoplemark

February 26, 2010


The opinion of the court was delivered by: Hon. Robert J. Jonker


Pending before the court is defendant Peoplemark's Motion to Compel Responses to its Second Set of Interrogatories and First Request for Production of Documents (docket no. 52). The motion is opposed.


The discovery requests at issue were served on May 6, 2009, and plaintiff EEOC responded on June 11, 2009. The EEOC withheld information it thought was protected by the "governmental, deliberative process privilege, attorney-client privilege, and/or work product doctrine." See, e.g., EEOC's response to Interrogatory No. 8 and Request for Production Nos. 17 and 23 (docket no. 52). Peoplemark felt the responses were defective and so advised the plaintiff.

The EEOC has made several attempts to provide an adequate privilege log. The first privilege log supplied by plaintiff (hereinafter "Privilege Log No. 1) listed eight categories of documents that the EEOC excluded from production "on the basis of privilege."*fn1 According to Peoplemark, none of the statistical data, analyses, tables, or spreadsheets requested in Requests for Production Nos. 17 and 21 were described in any of the documents listed in that privilege log, nor were they produced. Defendant's Brief filed October 9, 2009 (docket no. 77) at 1-2. For this reason, on August 20, 2009, Peoplemark filed its motion to compel disclosures to its discovery requests. See Defendant's motion (docket no. 52). Following the filing of defendant's motion to compel, the EEOC produced 26 pages of documents.*fn2

On September 3, 2009, the EEOC filed its response to Peoplemark's motion to compel. It also filed the first Declaration (hereinafter, the "first declaration") of Stuart J. Ishmaru (Mr. Ishimaru), acting Chairman of the EEOC (docket no. 59), asserting the governmental deliberative process privilege, along with what amounted to a second privilege log (hereinafter "Privilege Log No. 2"). The declaration was unsigned, but was subsequently signed on September 9, 2009. Docket No. 64. Mr. Ishimaru's declaration claimed the governmental deliberative process privilege for all information requested in Interrogatory No. 8, and for the specific documents described in "Exhibit B" to his declaration (i.e. Privilege Log No. 2). First Declaration, ¶ 4. Privilege Log No. 2 identified ten categories of information rather than the eight categories or paragraphs in Privilege Log No. 1, and was considerably different from Privilege Log No. 1.*fn3

The court held a hearing on the motion to compel on September 18, 2009. The EEOC was directed to file an amended privilege log outlining which privileges it claimed for which documents, along with the documents themselves, so the court could conduct an in camera review. On September 28, 2009, the EEOC submitted to the undersigned an Amended Privilege Log (docket no. 77-4) (hereinafter Privilege Log No. 3) signed that date by Dale Price, counsel for EEOC, along with documents for in camera review. The EEOC also provided a second Declaration (hereinafter, the "second declaration") from Mr. Ishimaru dated September 25, 2009. Privilege Log No. 3 was an annotated version of Privilege Log No. 2, and was again renumbered.

The second declaration of Mr. Ishimaru, dated September 25, 2009, was limited to only claiming the governmental deliberative process privilege for those documents described in an "Exhibit A," which was attached to the declaration. "Exhibit A" contained four categories.*fn4 Thus, the governmental deliberative process privilege asserted by the EEOC through its acting chairman, Mr. Ishimaru encompasses, and is now limited to, all information sought by Interrogatory No. 8, the documents described in Privilege Log No. 2 (being Exhibit B to Mr. Ishimaru's first declaration), and the four items listed in footnote 4, supra.

Mr. Ishimaru's first declaration stated that the decision to which the governmental deliberative process privilege was claimed was the decision to file the lawsuit. See ¶ 2 of the first declaration. The declaration did not provide the date the decision to file the lawsuit was made, and the court is unaware that plaintiff has ever identified this date.*fn5 The second declaration of Mr. Ishimaru, dated September 25, 2009, does not identify any decision to which the governmental deliberative process privilege is applicable. However, since Mr. Ishimaru refers in his second declaration to his earlier declaration, one may reasonably infer that he is asserting the privilege in regard to the same decision referred to in the first declaration (i.e., the decision to file this lawsuit), and the court will make this assumption. See paragraph 2 of the second declaration.

On October 14, 2009, at the conclusion of a hearing on another motion in this matter, the EEOC was given until October 26, 2009 to file a response to a brief filed five days earlier by Peoplemark (docket no. 77), which was in response to the EEOC's submission of Privilege Log No. 3. The court also asked the EEOC to provide more specific explanations as to the privileges it was raising in its privilege log. On October 26, 2009, the EEOC filed a supplemental brief (docket no. 82) along with its "Second Amended Privilege Log" (docket no. 83) (hereinafter Privilege Log No. 4).*fn6 In Privilege Log No. 4, plaintiff has refined its annotations regarding the privileges it is asserting.

The Governmental Deliberative Process Privilege

The governmental deliberative process privilege permits the government to withhold from disclosure "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Department of the Interior v. Klammath Water Users Protective Association, 532 U.S. 1, 8 (2001); Parke Davis & Co. v. Califano, 623 F.2d 1, 5 (6th Cir. 1980) ("The reason for shielding the deliberative process is the necessity to foster the policy of open, frank discussion between subordinate and chief concerning administrative action.") (internal quotation marks omitted). To qualify for protection under this privilege, a document must meet two requirements: (1) the document must be "pre-decisional," that is, it must have been "received by the decision-maker on the subject of the decision prior to the time the decision is made," and (2) the document must be "deliberative," meaning the document was "the result of a consultive process." Rugiero v. U.S. Department of Justice, 257 F.3d 534, 550 (6th Cir. 2001); accord, Norwood v. F.A.A., 993 F.2d 570, 576-77 (6th Cir. 1993); Schell v. Dept. of Health & Human Services, 843 F.2d 933, 940 (6th Cir. 1988). However, purely factual matters that do not reflect deliberative process are not protected. EPA v. Mink, 410 U.S. 73, 87-89, 1973 (holding that the privilege does not protect "memoranda consisting only of compiled factual material or purely factual material contained in deliberative memoranda and severable from its context. . ."). The following would be examples of material that is not protected: who the EEOC interviewed during its investigations; who conducted the investigations; the facts on which the EEOC based its cause determinations; the documents or testimony on which the EEOC based its finding of fact included in the determinations; the actions taken during the investigation by the EEOC; the communications between the EEOC and witnesses (both from plaintiffs' side and defendant's side); and the dates on which the investigations were started and finished. This information would not be shielded by the deliberative process privilege because the privilege does not protect purely factual or objective material. See, Bobby McCall, et al v. Lockheed Martin Corp., 2006 U.S. Dist. LEXIS 46772 (S.D.Miss., July 10, 2006).

When a government agency has asserted the deliberative process privilege, the burden of demonstrating the requested documents are both pre-decisional and deliberative falls on the agency. Van Aire Skyport Corp. v. FAA, 733 F.Supp. 316, 321 (Dist. Colo. 1990). The claim of privilege is raised by a formal claim made by the head of the agency after he has personally considered the material in question. Alpha I, L.P. v. United States, 83 Fed. Cl. 279, 289 (2008). He does so by submitting a declaration stating the precise reasons for reserving the confidentiality of the investigative report and identifying and describing the documents to which the privilege is asserted. See EEOC v. Continental Airlines Inc., 395 F.Supp. 2d. 738, 741 (N.D.Ill. 2005); see also, United States v. Reynolds, 345 U.S. 1, 7-8 (1953).

Attorney-Client Privilege and Work Product Rule

These two rules are well known and need not be set out for ...

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