When an employer faces litigation following an unfavorable cause determination by the EEOC, it may seek to depose the EEOC investigator who made the finding. However, the scope of discovery obtainable from the EEOC is somewhat different from that available from a non-governmental third party. The EEOC may seek to quash a subpoena by asserting that the information sought is protected by the deliberative process privilege, which is available to the agency in addition to the more common protections of attorney-client privilege and work product protection.

The EEOC’s Regional Attorney’s Manual states that “[t]he United States Government may withhold evidence in litigation in any of the following circumstances: (1) where a statute makes certain documents or information confidential; (2) where a privilege or objection is available to any other litigant under the Federal Rules of Civil Procedure (e.g., relevance, undue burden, attorney-client privilege); or (3) where a special privilege exists unique to the government (e.g., informer privilege, deliberative process privilege). The EEOC typically asserts the deliberative process privilege in litigation in order to protect the confidentiality of internal, deliberative material, such as documents containing the analyses, opinions, or recommendations of enforcement unit staff, and attorney memoranda containing analysis or recommendations.”

The deliberative process privilege protects the decision making process of government agencies. To be protected, information must be “predecisional” (that is, information prepared to assist an agency decisionmaker in reaching a decision) and “deliberative.” Predecisional information is part of the deliberative process if its disclosure would expose the agency’s decisionmaking process in such a way as to discourage candid discussion within the agency. Purely factual material, however, generally is not considered deliberative.

Several recent decisions have addressed the circumstances in which an employer is permitted to depose an EEOC investigator. For instance, in Little v. Auburn University, No. 3:08cv373, 2010 WL 582083 (M.D. Al. Feb. 17, 2010), the district court determined that a deposition should be permitted where the employer sought only to clarify factual ambiguities in the EEOC’s investigative file. The court found that such factual inquiry would not be covered by the deliberative process privilege. A different district court, however, recently granted the EEOC’s motion to quash a subpoena where the employer sought the deposition “for purposes of clarification and interpretation” of the EEOC’s determination and to “understand the factual basis for the EEOC’s determination.” EEOC v. Pinal County, 714 F. Supp. 2d 1073 (S.D. Cal. 2010). The court noted that whenever revealing facts would be tantamount to revealing the analysis of those facts, the deliberative process applies. Unlike Little, where the employer sought clarification of factual information contained in the investigative file, the county sought clarification and interpretation of the determination letter itself, which would require revealing information about the agency’s deliberative process. The court determined that to ask an EEOC representative “to even set forth the selected facts which constitute the factual basis of the probable cause finding would infringe on the deliberative process privilege as it would reveal the EEOC’s evaluation and analysis of the extensive factual information gathered by the agency.”

Employers seeking to depose an agency investigator should be careful to frame their arguments in terms that will not infringe upon the deliberative process privilege and should be aware courts could construe purely factual requests as infringing on that privilege.