file. Noting that “[s]imply ‘ [p]roviding an investigative file does not relieve the EEOC of its obligation under Rule 30(b)(6) to provide a witness to answer questions about those documents for purposes of clarification and interpretation,” the court first held that the Commission “cannot assert a blanket privilege or exemption from discovery under Rule 30(b)(6),” but must justify with particularity its request for a protective order as to each specific category. Id. at 4. Next, the court proceeded to analyze different categories of deposition topics, beginning first with Topics 1-6 and 10-12 that sought “[f]actual information and documents that support or rebut” various claims in the EEOC ’ s complaint. The court distinguished the EEOC ’ s cited precedent and explained the noticed topics concerned the factual bases for allegations in the Commission ’ s complaint, which were permissible topics of inquiry. After discussing whether the “support or rebut” formulation implicates attorney-client privilege and weighing the balance of authority, the court determined that the topics should not be barred at the outset, noting that the EEOC could interpose privilege objections as appropriate, but cautioned defense counsel “not [to] tread into the attorney-client privilege arena” in its questioning. Id. at 7. The court analyzed Topics 7-9 and 17-18, which sought internal policies and mandates of the EEOC pertaining to (1) the scope of EEOC investigations; (2) how the EEOC evaluates a company ’ s anti-harassment policies and/or procedures; (3) how it calculates damages and penalties; (4) how and whether the EEOC investigates discrimination or retaliation resulting from sexual harassment; and (5) the investigation and prosecution of internal sexual harassment claims made by EEOC employees. The court concluded that several case law authorities had “found disclosure of the EEOC ’ s internal policies appropriate where those policies could be probative of whether a defendant ’ s own policies comported with Title VII, or where the policies could be proof of an improper motive for the enforcement action.” Id. at 9. Accordingly, the court concluded that “whether [the defendants ’ ] policies and processes for investigating sexual harassment are substantially similar to those used by EEOC could rebut [the Commission ’ s] claims that those policies were not adequate.” Id. The court therefore denied the EEOC ’ s motion for a protective order as to Topic 18, which sought testimony on “[r]equirements, policies, practices, or procedures of [the EEOC] relating to the investigation of sexual harassment complaints by employees of [the EEOC].” The court granted the EEOC ’ s protective order as to the remaining topics in this category regarding how the EEOC determines the scope of an investigation (Topic 7), the policies or practices used by the EEOC to evaluate a company ’ s anti-harassment policies/procedures (Topic 8), how the EEOC determines the appropriate damages sought (Topic 9), and any mandates to investigate or prosecute sexual harassment cases (Topic 17), finding that they were not relevant to the defendants’ estoppel defenses, nor did “[w]hether the EEOC fulfilled its investigation and conciliation obligations” depend on “internal policies governing the conduct of investigations and damages calculations.” Id. at 10. The court also allowed discovery into Topic 14, which sought the “basis for [the EEOC ’ s] claim of representation” of any present or former employee, subject to the limitation that only inquiries into communications preceding the formation of an attorney-client relationship are permitted. The court also allowed testimony on Topics 15 and 16, which sought “[t]he contents of and information set forth in [the Commission ’ s] Initial Disclosures pursuant to Rule 26” and “[d]ocuments produced by [the EEOC] pursuant to its Rule 26 obligations and/or in response to the
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© Duane Morris LLP 2024
The EEOC Litigation Review – 2024
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