Equal Employment Opportunity Commission v. Bashas' Inc., No. 2:2009cv00209 - Document 67 (D. Ariz. 2010)
Court Description: ORDER denying 59 Motion to Compel Discovery Response and Motion forConfidentiality Order; denying as moot 66 Motion to Strike. Signed by Judge Robert C Broomfield on 9/2/10.(DMT)
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Equal Employment Opportunity Commission v. Bashas&#039; Inc. 1 Doc. 67 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 13 14 15 16 17 Equal Employment Opportunity) Commission, ) ) Petitioner, ) ) vs. ) ) Bashas’, Inc. ) ) Respondent. ) ) No. CIV 09-0209-PHX-RCB O R D E R 18 Pending before the court is a “Motion to Compel Discovery 19 Responses and Motion for Confidentiality Order” by respondent, 20 Bashas’, Inc. (Doc. 59), which petitioner, the Equal Employment 21 Opportunity 22 pending is EEOC’s recently filed “Motion to Strike” (Doc. 66) 23 Bashas’ reply memorandum. Commission 24 (“EEOC”), opposes (Doc. 62). Also Background 25 Assuming familiarity with the fairly lengthy and contentious 26 history of the present dispute, there is no need to repeat that 27 entire history herein. 28 relatively narrow scope of Bashas’ motion to compel. This is especially so considering the In its motion, Bashas’ requests that this court order the EEOC to: “(1) Dockets.Justia.com 1 produce all responsive telephone records, including incoming 2 calls; 3 discovery responses.” 4 it believes that EEOC “‘representatives’” have impermissibly (1) 5 contacted Bashas’ employees, including management, and (2) made 6 public information about the EEOC’s investigation, Bashas’ seeks 7 a confidentiality order. 8 Telephone Records 9 and (2) produce a complete privilege Mot. (doc. 59). log for its Additionally, because See id. at 7:23; and at 8:20. I. As to Bashas’ request for production of telephone records, 10 initially 11 Call[s][.]” 12 EEOC-Bl-00027 (emphasis added). 13 to compel, the EEOC submitted the declaration of Everett Barnes, 14 its “Director of Telecommunications and Networking in the Office 15 of Information Technology at EEOC Headquarters in Washington[,] 16 D.C.” 17 Barnes declares that “[b]ecause the EEOC’s telephone records are 18 a byproduct of [its long distance telephone provider’s] . . . 19 billing system[,] and there is no charge to receive an incoming 20 telephone call, there are no telephone records generated for 21 incoming 22 according to Mr. Barnes, “[t]he EEOC does not have any records 23 of incoming telephone calls for the Phoenix District Office.” 24 Id. at 3, ¶ 8. 25 the court should deny as moot Bashas’ motion to compel as to the 26 EEOC’s telephone records. 27 28 In the EEOC provided only records for “Outward Mot., exh. 9 thereto (Doc. 59-9) at EEOC-Bl-00025 In responding to this motion Resp., exh. 1 thereto (Doc. 62-1) at 1, ¶ 1:24-27. telephone its calls.” Id. at 2, ¶ 7. Mr. Consequently, Based upon the foregoing, the EEOC responds that reply, Bashas’ notes that “[i]t was not until Bashas’ filed [its] Motion to Compel that the EEOC provided a -2- 1 detailed explanation of its production of telephone records in 2 its Response.” 3 however, 4 telephone records. 5 sentence of its motion, Bashas’ generically “requests an award 6 of 7 Motion[.]” Id. at 9:21-22. 8 II. its Reply (Doc. 65) at 5:27 - 6:1. seeking any reasonable specific relief as Bashas’ is not, to the produced Almost as an afterthought, in the last costs and fees incurred in making this Privilege Log 9 Turning to the second aspect of Bashas’ motion to compel, 10 the privilege log, Bashas’ claims despite “assert[ing] that much 11 of the information requested is protected from disclosure by 12 privilege, 13 deliberative privilege,” the EEOC is “ignor[ing] Bashas’ request 14 for a privilege log.” 15 stresses that it is not “suggest[ing] that the EEOC should 16 produce privileged documents or provide detailed information in 17 a privilege log that would disclose the [EEOC’s] work product.” 18 Id. at 10:8-10 (internal quotation marks omitted). 19 Bashas’ “requests that the EEOC produce a privilege log with as 20 much 21 documents identified as privileged.” including specificity as the attorney-client and governmental Mot. (Doc. 59) at 9:24-26. possible, that includes all Bashas’ Instead, responsive Id. at 10:11-13. 22 Bashas’ rationale is that the governmental deliberative 23 process privilege, which it claims the EEOC has “repeatedly 24 asserted[,] . . . has limited applicabilty. 25 Further, 26 applicability of th[at] limited privilege if the [EEOC] refuses 27 to identify privileged documents in a privileged [sic] log.” 28 Id. at 10:23-24. Bashas’ reasons that it Id. at 10:12-13. “cannot debate the Accordingly, Bashas’ is seeking a court order -3- 1 requiring the EEOC to “produce a complete privilege log for its 2 discovery responses.” Id. at 10:27-28. 3 Basically it is the EEOC’s position that because, as the 4 record reflects, it has “informed [Bashas’] on more than one 5 occasion that it has produced all responsive documents that it 6 possessed[,]” 1 and because “[t]here is nothing to document in a 7 privilege log[,]” the court should deny this aspect of Bashas’ 8 motion to compel. Resp. (Doc. 62) at 7:14-16. 9 Bashas’ replies, as it did regarding the telephone records, 10 that “it was not until [it] filed this Motion that the EEOC 11 finally 12 responsive documents to these discovery requests privileged or 13 otherwise[.]” Reply (Doc. 65) at 6:1-3. 14 Bashas’ 15 privilege log other than the generic request for attorneys’ fees 16 and costs noted earlier. clarified does not that seek it any does not further have any additional In its reply, however, relief pertaining to a 17 Indeed, Bashas’ devotes the bulk of its reply to arguing, 18 for the first time, that it “has evidence that suggests the 19 EEOC’s response omitted hundreds of pages of documents provided 20 to the agency by Elizabeth Lawrence, attorney for the plaintiffs 21 in the Parra litigation, shortly after this Court denied the 22 plaintiffs’ second attempt to certify their pay claim.” 23 (Doc. 24 documents provided 25 discovery responses 26 pursuant to Fed. R. Civ. P. 27, “Bashas’ requests that the Court 65) at 1:19-22. by Bashas’ Ms. are further Lawrence claims suggest incomplete.” Id. that that at Reply “[t]he other 1:23. EEOC Thus, 27 1 28 See, e.g., Resp., exh. 3 thereto (Doc. 62-1) at 1-2; id., exh. 4 thereto (Doc. 62-1) at 8:24-9:2. -4- 1 order 2 requests.” 3 sixteen supporting exhibits, including eight declarations from 4 Bashas’ employees. 5 outside Bashas’ stores by people purporting to be investigating 6 wage and treatment discrimination at Bashas’. 7 III. 8 the EEOC to supplement Id. at 1:23-24. incomplete responses to its Bashas’ attaches to its reply All eight claim to have been approached Confidentiality Order Bashas’ 9 activities motion outside 10 Bashas’ asserts 11 court’s denial for several that of a confidentiality of its stores immediately discovery 12 “‘representatives[,]’” to who order on following the Parra “identified arises June the 23, from 2010. bankruptcy plaintiffs, EEOC themselves as 13 representing ‘Pat Miner, EEOC Investigator[,]’” appeared outside 14 several of 15 According 16 employees, Bashas’ to stores. Bashas’, including Mot. those (Doc. individuals managers, “advis[ing] 59) at approached them 17 against Bashas’ and ‘discrimination’ by Bashas’.” of 7:23-26. Bashas’ a ‘case’ Id. at 7:20- 18 21 (emphasis omitted). 19 When Bashas’ attorney learned of this conduct, she contacted 20 Ms. Miner right away, demanding that the EEOC discontinue such 21 contact with Bashas’ employees. 22 59-17) at 2-4. See Mot., exh. 17 thereto (Doc. At that time, Bashas’ advised the EEOC of its 23 position that such conduct “seemed to run afoul of 28 U.S.C. §[] 24 2000e-5(b)’s 2 requirement that ‘Charges shall not be made public 25 by the Commission.’” Id. at 8:21-22 (footnote added); see also 26 27 28 2 Bashas’ mistakenly relies upon Title 28 of the United States Code, when the language which it is quoting is from Title 42 of that Code. In fact, Title 28 does not contain a section 2000e. -5- 1 id., exh. 17 thereto (Doc. 59-17) at 2-4. Bashas’ further 2 advised the EEOC that it deemed that conduct to be “contrary to 3 28 U.S.C. § 2000e-8(e)[.]” 3 Id. at 8:23; see also id., exh. 17 4 thereto (Doc. 59-17) at 2-3. 5 is to make strictly The primary thrust of that statute confidential any information the EEOC 6 obtains as part of its investigation “prior to the institution 7 of any proceeding [there]under[.]” 42 U.S.C. § 2000e-8(e) (West 8 2003). 9 Claiming that the EEOC is in “blatant disregard [of] its own 10 internal confidentiality rules,” Bashas’ is requesting that the 11 court enter a confidentiality order as follows: 12 No officer or employee of the [EEOC] shall make public in any manner whatever any information obtained by the [EEOC] pursuant to its authority prior to the institution of any proceeding involving such information. Any officer or employee of the [EEOC] who shall make public in any manner whatever any information in violation of this subsection shall be guilty of contempt of Court. 13 14 15 16 17 Id. at 11:3-6 (emphasis added). 18 Succinctly put, the EEOC responds “to involve that Bashas’ is 19 impermissibly seeking the Court in the [this] 20 administrative investigation without any legal authority to 21 support its position.” Resp. (Doc. 62) at 13:21-22. also Bashas’ The EEOC 22 sharply disputes depiction of the encounters 23 between Bashas’ employees and EEOC investigators. The EEOC is 24 adamant; its investigators are simply following their statutory 25 26 3 27 28 Again, Bashas’ mistakenly relies upon Title 28 of the United States Code, when obviously it intended to rely upon 42 U.S.C. § 2000e-8(e). The court is proceeding upon the assumption that Bashas’ intended to rely upon §§ 2000e-5(b) and 2000e-8(e) as found in Title 42 of the United States Code. -6- 1 and regulatory mandate to interview witnesses. In carrying out 2 that mandate, the EEOC is equally adamant that its investigators 3 are complying with all applicable statutes, rules, regulations, 4 and the 5 asserts EEOC’s that own this Compliance court Manual. should deny Therefore, Bashas’ the motion EEOC for a 6 confidentiality order. 7 Bashas’ 8 interviews retorts with that Bashas’ despite how employees, the those EEOC depicts interviews its “most 9 certainly w[ere] not ‘normal’ according [to] the EEOC’s own 10 guidelines.” Reply (Doc. 65) at 7:19-20. Bashas’ then goes on 11 to enumerate the ways in which it believes the EEOC failed to 12 follow its own “guidelines.” See id. at 8:5-15. For example, 13 Bashas’ points to a sentence in the EEOC’s Compliance Manual 14 stating, “Interview 15 privacy.” witnesses under conditions which assure Resp., exh. 5 thereto (Doc. 62-1) at 23-3, § 23.6(b). 16 By contacting Bashas’ employees “in Bashas’ parking lots, . . . 17 where Bashas’ customers and other members of the public were 18 coming and going[,]” Bashas’ strongly suggests that the EEOC 19 violated that privacy provision. 20 11. See Reply (Doc. 65) at 8:10- Bashas’ further challenges the EEOC’s failure to address 21 the EEOC’s alleged violations of 42 U.S. C. §§ 2000e-5(b) and 22 2000e-8(e). 23 Somewhat tellingly, Bashas’ acknowledges the possibility 24 that the court may “choose[] not to address [its] request for a 25 confidentiality order in this Motion[.]” Id. at 9:12-13. In 26 that event, Bashas’ adds that “the EEOC’s heavy-handed approach 27 to its self-initiated charge most certainly questions the 28 legitimacy of the administrative subpoena and Commissioner’s -7- 1 Charge, and demonstrates the confidentiality concerns raised in 2 the subpoena enforcement action.” Id. at 9:13-16. Discussion 4 3 4 I. Motion to Compel 5 Bashas’ has all the telephone records which are available 6 for production from the EEOC, as the Barnes’ declaration in 7 particular makes clear. Further, as the EEOC has explained, 8 there are no documents to include in a privilege log. 9 (Doc. 62) at 6:1 - 9:2. See Resp. The court therefore denies as moot 10 Bashas’ motion to compel as to telephone records and a privilege 11 log. See Dilbert v. Potter, 2009 WL 1517734, at *8 (N.D. Cal. 12 June 1, 2009) (denying as moot plaintiff’s motion to compel 13 where defendant filed a declaration “stating that all medical 14 records in existence and responsive 15 requests ha[d] been produced”); to Plaintiff’s document see also Miller v. Woodford, 16 2010 WL 2850776, at *2 (E.D.Cal. July 20, 2010) (denying motion 17 to compel document production where defense counsel verified 18 4 19 20 21 22 23 24 25 26 27 28 Before addressing the merits, the court is compelled to comment upon the timing of the EEOC’s response and Bashas’ reply. They are both late under the applicable rules. According to the Certificate of Service attached to Bashas’ motion, confirmed by the Notice of Electronic Filing (“NEF”), on July 23, 2010, Bashas’ filed and electronically served its motion on the EEOC. Mot. (Doc. 59) at 12 (Certificate of Service). Pursuant to LRCiv 7.2(c), the EEOC had “14[] days after service . . . within which to serve and file a responsive memorandum.” LRCiv 7.2(c). Computing that 14 day time period in accordance with Fed. R. Civ. P. 6(a)(1), as the court must, means that the EEOC had until Friday, August 6, 2010, by which to timely file and serve its response. The EEOC did not file and serve that response until Monday, August 9, 2010, however - 3 days late. Likewise, in accordance with LRCiv. 7.2(d), Bashas’ had “seven . . . days after service of the responsive memorandum to file a reply memorandum[.]” LRCiv. 7.2(d). The Certificate of Service attached to the EEOC’s response, and confirmed by the corresponding NEF, shows that the EEOC electronically served Bashas’ with its response on August 9, 2010. Resp. (Doc. 62) at 16. Therefore, computing that seven day time frame in accordance with Fed. R. Civ. P. 6(a)(1) means that Bashas’ had until August 16, 2010, by which to timely file and serve its reply. Bashas’ did not file and serve its reply, however, until August 19, 2010 – three days late. Partially because the parties did not mention it, the court is willing to overlook the untimeliness of these filings. The court will not be so lenient in the future though. -8- 1 that there were no responsive documents to compel). 2 In its reply, Bashas’ significantly expanded the scope of 3 its initial discovery motion. Instead of limiting its request 4 for relief to telephone records and a privilege log, as it did 5 in its motion, in Bashas’ reply it seeks to compel production 6 of, inter alia, potentially “hundreds of pages of documents 7 provided to [the EEOC] by Elizabeth Lawrence, attorney for the 8 plaintiffs in the Parra litigation[.]” Reply (Doc. 65) at 1:199 21. The court declines to consider this argument made for the 10 first time in Bashas’ reply. See Dawe v. Corrections USA, 2010 11 WL 1689107, at *2 (E.D. Cal. April 26, 2010) (citing Cross v. 12 Washington, 911 F.2d 341, 345 (9 th Cir. 1990))(“Because these 13 arguments were not raised in [defendant’s] initial motion their 14 inclusion in the reply was improper.”); and Schultz v. Ichimoto, 15 2010 WL 3210764, at *1 (E.D.Cal. Aug. 10, 2010) (citing, inter 16 alia, United States v. Bohn, 956 F.2d 208, 209 (9 th Cir. 1992)) 17 (“Normally, arguments raised for the first time in a reply brief 18 or at the hearing on a motion are disregarded.”) The obvious 19 reason argument by lack an 20 Bashas’ for is declining to prejudice to 21 opportunity to respond. consider the this EEOC belated given its of The court, therefore, abides by its 22 prior rulings herein and denies in all respects Bashas’ motion 23 to compel discovery. 24 II. Motion for Confidentiality Order 25 The court also denies Bashas’ motion for a confidentiality 26 order, but for different reasons. First, Bashas’ has not 27 provided a sufficient legal or factual basis for such relief. 28 Bashas’ has not cited to any legal authority to support the -9- 1 entry of such a confidentiality order. 2 declarations contain relatively Further, the supporting little detail 3 declarants’ encounters with EEOC investigators. about the Without the 4 gloss of counsel, those declarations show that those encounters 5 were fairly innocuous. Second, the EEOC through its counsel, 6 explicitly recognizes that it “and its employees are bound by, 7 and follow, the relevant law.” Resp. (Doc. 62) at 14:18-19. 8 Third, Bashas’ proposed confidentiality order borrows language 9 from 42 U.S.C. § 2000e-5(b) and 42 U.S.C. § 2000e-8(e), and, 10 hence, it is duplicative. 11 confidentiality order is Fourth, as drafted, the proposed potentially overbroad especially 12 insofar as it mandates a finding of contempt without affording 13 any process. Accordingly, the court DENIES Bashas’ motion for 14 a confidentiality order. 15 III. 16 Motion to Strike Disregarding the arguments made for the first time in 17 Bashas’ reply, renders moot the EEOC’s motion to strike that 18 reply and its accompanying exhibits. The court, therefore, 19 DENIES that motion to strike. 20 For the reasons set forth herein, IT IS ORDERED that: 21 (1) the “Motion to Compel Discovery Response and Motion for 22 Confidentiality Order” (Doc. 59) is DENIED in its entirety; and 23 (2) the “Motion to Strike” (Doc. 66) is DENIED as moot. 24 25 26 27 28 - 10 - 1 DATED this 2 nd day of September, 2010. 2 3 4 5 6 7 8 Copies to all counsel of record 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 11 -
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