In EEOC v. Freeman, 2012 U.S. Dist. LEXIS 179183, at *6 (D. Md. Dec. 19, 2012), Magistrate Judge Day of the U.S. District Court for the District of Maryland noted that “there simply is no more aggravating action than a lawyer improperly instructing a deponent not to answer a question.” Nevertheless, in the most recent deposition in EEOC v. Freeman, the EEOC continuously instructed its representative in a Rule 30(b)(6) deposition not to provide defense counsel with an answer to their questions. Defendant left the deposition with numerous unanswered questions, lost time, and lost money. Insistent that the EEOC did not follow the applicable Federal Rules of Civil Procedure that govern depositions, Defendant filed a motion to compel the EEOC to provide a Rule 30(b)(6) designee for a second deposition on the unanswered questions, with the costs and sanctions to be paid by the EEOC. The EEOC, adamant to conceal its information, vehemently opposed the Defendant’s motion.  

Facts Of The Case - Round One

The EEOC has a mixed track record of success in EEOC v. Freeman. The lawsuit arose out of a charge of discrimination filed by an African-American woman in January 2008, who claimed that the Defendant discriminated against her on the basis of her race when it rejected her employment application based on her credit history (discussed here in our previous posts on this lawsuit). After the EEOC began investigating the charge, it expanded its investigation to include Defendant’s use of criminal history information for all applicants. The EEOC filed suit alleging a nationwide pattern or practice of discrimination based on the Defendant’s use of criminal background checks. In August 2012, the Defendant brought a motion for partial summary judgment, which the Court granted – and about which we previously blogged here. Defendant contended that, for claims that were not part of the original charge, the 300-day statute of limitations in Section 706 of Title VII should run – not from the date of the original charge – but from the date that the EEOC notified the company that it was expanding its investigation to encompass new clams. The Court granted partial summary judgment and held that the relevant date for purposes of the 300-day time bar was the date of notice of the new charges. The Court’s grant of partial summary judgment was a victory for the Defendant.

Round Two

The story does not end there, however. In March 2012, Defendant served the EEOC with its Notice of Rule 30(b)(6) Deposition requiring the EEOC to produce a representative to discuss a number of topics – about which we previously blogged here. The EEOC argued that Defendant’s requested deposition would not reveal relevant information relevant to its claims and defenses, and the EEOC asked the Court for a protective order. The Court denied the EEOC’s motion and found that the Defendant’s deposition could produce information relevant to its argument that considering applicants’ criminal backgrounds and credit histories is a business necessity. Similarly, the Court was not persuaded by the EEOC’s argument that the Court should prohibit deposition questioning regarding the Commission’s own hiring procedures. The Court relied on facts that showed that the EEOC is involved in the hiring process. Thus, the Court reasoned that Defendant’s depositions would provide relevant information. Finally, the Court denied the EEOC’s third contention that a protective order was appropriate because the EEOC was already deposed on similar issues in another case – EEOC v. Kaplan Higher Educ. Corp., No. 10-CV-2882 (N.D. Ohio May 26, 2011). In a resounding defeat for the EEOC, Judge Day held that the EEOC’s claim was without merit because Defendant did not participate in the EEOC v. Kaplan deposition and that case involved different issues. Thus, the Court denied the EEOC’s motion for a protective order. This marked the Defendant’s first discovery triumph in EEOC v. Freeman.

Round Three

Most recently, Defendant deposed one of the EEOC’s witnesses, Carol Miaskoff, regarding the matters discussed above. At the deposition, Defendant asked pointed questions regarding the EEOC’s policy guidance and regulations pertaining to the legal standard applicable to a Title VII disparate impact challenge to an employer’s use of arrest or conviction records in making hiring and other selection decisions. Id. at *2. The Defendant also attempted to question Miaskoff regarding the EEOC’s policies relating to the applicable legal standard to challenge an employer’s use of credit history or other financial records in making hiring and other selection decisions. Id. at *3. During the deposition, on five occasions the EEOC’s counsel instructed Miaskoff not to answer questions posed by Defendant’s counsel. The EEOC’s challenges left the Defendant without answers to critical questions. Accordingly, Defendant moved to compel the EEOC to provide a designee for a second deposition to answer the challenged questions. Defendant argued that the EEOC’s counsel improperly instructed Miaskoff not to answer its questions. The EEOC responded that the requested information should not be compelled because it was outside the scope of the Rule 30(b)(6) deposition, not relevant, and privileged. Id. at *8.

The Court’s Ruling

At first, Magistrate Judge Day’s ruling appeared deferential to the Defendant. Magistrate Judge Day began his ruling by noting that Federal Rules of Civil Procedure provide that “[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense” and “the witness must answer the question subject to the objection which is thereby preserved for trial.” Id. at *6. In a turn for the EEOC’s benefit, however, Magistrate Judge Day held that “[n]onetheless, a court is not required to grant a motion to compel merely because an attorney gave an improper instruction not to answer.” Id. at *7. Magistrate Judge Day relied on the fact that courts enjoy substantial discretion in the management of discovery and reasoned that three of the Defendant’s question were plainly outside the scope of the Rule 30(b)(6) notice of the deposition. Id. at *10. As for the fourth question that the EEOC challenged, Magistrate Judge Day held that it was proper for the EEOC to instruct Miaskoff not to answer because “privilege is an appropriate ground for instructing a deponent not to answer a question.” Id. at *12. Magistrate Judge Day held that the fifth and final question that the EEOC challenged was reasonably calculated to lead to the discovery of admissible evidence and therefore the EEOC was not justified in instructing Miaskoff not to answer on relevancy grounds. Id. at *11. Nevertheless, Magistrate Judge Day held that it was unnecessary to compel an additional deposition because “further questioning would be redundant…” Id. at *26. Additionally, the Magistrate Judge Day denied the Defendant’s request for sanctions. 

Implications For Employers

Discovery disputes are often hotly contested matters. Motions to compel can be particularly vital to a party’s case because one answer has the ability to un-hinge a massive trunk of pertinent information. In other words, “knowledge is power.” Thus, Magistrate Judge Day’s ruling limits Defendant’s available arguments against the EEOC in this case. 

 Readers can also find this post on our EEOC Countdown blog here.