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KM&M Client Compels Deposition of EEOC Witness

May 25, 2007

In a ruling that may be an important tool for employers who are sued by the Equal Employment Opportunity Commission ("EEOC"), Magistrate Judge Boyd N. Boland of the U.S. District Court for the District of Colorado ordered the EEOC to produce a witness who could testify about the commission’s investigation into alleged violations of Title VII of the Civil Rights Act of 1964 by the grocery chain Albertson’s LLC.

Albertson’s, represented by attorneys in KM&M’s Los Angeles office, sought to depose an EEOC representative concerning 21 enumerated subjects under the federal rules regarding discovery, the process before a trial where adverse parties share information relevant to their claims or defenses. Citing the rule that permits parties to withhold privileged information, the EEOC objected to providing testimony on any of the requested subjects. Many of the requests, the EEOC claimed, implicated the privileges protecting attorney-client discussions, attorney work product, and information exchanged during the deliberative process of its investigation. Other requests, the EEOC argued, were inconsistent with laws that penalize EEOC employees who "make public" certain information obtained in an investigation. The EEOC also claimed that compelling testimony regarding the investigation files the EEOC had turned over to Albertson’s would "saddle every discrimination case with a mini-trial into the sufficiency of the evidence supporting a Commission determination."

Judge Boland rejected the EEOC’s arguments. He noted that the U.S. Court of Appeals for the Tenth Circuit "has disapproved the use of a blanket assertion of privilege," and that the U.S. Supreme Court has ruled that sharing information with an opposing party does not violate the "make public" rule. The EEOC may still invoke privilege in response to certain questions posed at the deposition, Judge Boland ruled, but it may not refuse to participate in the deposition altogether. Judge Boland also called the requests regarding the content of the investigation files "obviously relevant," and thus subject to discovery.

This decision re-affirms other rulings binding government plaintiffs to many of the same discovery requirements that control private litigants and, as such should prove to be of significant assistance to employers defending discrimination suits brought by the EEOC.