In an order recently issued in EEOC v J.R. Baker Farms, LLC, et al., Case No. 7:14-CV-136 (M.D. Ga. Sept. 9, 2015), Senior Judge Hugh Lawson  of the U.S. District Court for the Middle District of Georgia compelled the EEOC to produce in discovery anecdotal claims information for each known “class member” in a pattern or practice lawsuit (while not a class action governed by Rule 23, allegedly injured parties for whom the EEOC sues in a pattern or practice case are often referred to as “class members,” as in this order by Judge Lawson). The Court also denied the EEOC’s motions to quash or grant protective relief regarding the depositions of its lead investigator and a Rule 30(b)(6) witness.

The order is a case study for defense initiatives to take the fight to the EEOC in high-stakes workplace litigation.

Case Background

In August 2014 the EEOC brought a pattern or practice lawsuit under Title VII of the Civil Rights Act of 1964 against a Georgia-based farm J & R Baker Farms LLC and J & R Farms Partnership. The suit alleged that Defendants engaged in systemic race and national origin discrimination by providing greater opportunities for training and work hours to foreign-born workers, while involuntarily terminating or causing the constructive discharge of a disproportionate number of American and, specifically, African-American workers.

In discovery, Defendants sought to compel the EEOC to provide comprehensive responses to interrogatories requesting that the EEOC specify – for each class member – certain claim information, including whether each class member was a victim of an involuntary termination or constructive discharge. Id. The EEOC objected to the discovery requests as both exceeding the scope of discovery in a pattern or practice litigation largely to be proved through statistical data, and seeking privileged information. Id.

Defendants also issued a notice of deposition to the EEOC’s investigator, Jennifer Vanairsdale, who led the interviews of complaining and intervening parties and also participated in a prior conciliation. The EEOC filed a motion to quash or alternatively a motion for protective order to block the deposition, arguing the deliberative process privilege. Id. Relying on the recent decision of the Supreme Court in Mach Mining LLC v. EEOC, 135 S. Ct. 1645, 1655 (2015), the EEOC also objected to the deposition to the extent the examination would include an impermissible inquiry into the conciliation process. Id. The EEOC further argued that the deposition was superfluous because the EEOC already had produced its complete investigatory file. Id.

The EEOC filed an additional motion to quash or alternatively motion for protective order seeking to bar Defendants’ notice of the Rule 30(b)(6) deposition, objecting on the basis that EEOC personnel did not have knowledge of the claims underlying the lawsuit and the notice arguably called for the deposition of its attorneys. Id.

The Court’s Decision

In granting Defendants’ motion to compel, the Court observed that it was “clear” that the EEOC had collected pertinent information from only a “very small percentage of the alleged class,” including 60 potential “class members” out of a class approximated at 2,000 workers. Id. The Court also observed that the EEOC’s lawsuit presented a “hybrid scenario” in which some the Commission asserted that some class members suffered  involuntary discharges while others were victims of a constructive discharge, and that the EEOC had developed and mailed to each potential class member a “detailed questionnaire” in order to develop its case. Id. Finding that Defendants sought only information contained in the completed questionnaires, and not the documents themselves, the Court determined that Defendants’ interrogatories were within the scope of permissible discovery and were not unduly burdensome. Id.

The Court also ordered the EEOC to provide lists of all known class members, whether their claim constituted a constructive discharge or an involuntary termination, and the date of discharge or termination. Id. The Court then went further by ordering the EEOC to provide “detailed anecdotal information for a representative portion of the class members,” which the Court found to be “at least 250 individuals.” Id.

The Court also denied the EEOC’s motion to quash or grant protective relief regarding the deposition of EEOC lead investigator Vanairsdale, cautioning Defendants “…not to venture into the territory of the adequacy of the conciliation process.” Id. The Court went on to deny the EEOC’s motion to quash or grant protective relief regarding Defendants’ notice for the Rule 30(b)(6) deposition, suggesting that the EEOC should notify Defendants if it has no witness meeting the criteria of the notice. Id.

Implications for Employers   

As the EEOC continues to assert deliberative privilege and Mach Mining as shields protecting it from discovery and judicial scrutiny, the order of the Court in EEOC v J.R. Baker Farms, LLC. demonstrates the importance of diligently pursuing discovery of claims underlying EEOC pattern or practice lawsuits. The Court not only ordered discovery to proceed, albeit with limitations, but also ordered the EEOC to provide detailed anecdotal information for a “representative portion” of the alleged class, quantified as 250 out of 2,000. Employers can use this order to support seeking both meaningful discovery and judicial intervention to obtain information critical to the defense of these costly and time consuming lawsuits.