Opinion
Case No. 1:17-cv-515
03-20-2019
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Plaintiff, v. R & L CARRIERS, INC., et al., Defendants.
Dlott, J.
ORDER
At issue in this discovery dispute is whether the EEOC has fully responded to defendants' Interrogatory No. 13 and additional interrogatories and document requests that seek information on which the EEOC bases its claims in this case, or whether the EEOC has improperly asserted the "deliberative process privilege" as to certain documents.
Defendants allege that plaintiff has improperly asserted the "deliberative process privilege" as to 13 documents listed on the EEOC's privilege log. Pursuant to the Court's Order of December 12, 2018, defendants have identified the documents they assert have been improperly identified as protected by the deliberative process privilege, and the EEOC has submitted such documents to the Court for its in camera review. The EEOC has also submitted the declaration of Victoria A. Lipnic, the Acting Chair of the EEOC, which avers that she has reviewed the in camera documents submitted to the Court and such documents "contain predecisional opinions, analyses, and conclusions of the Commission investigatory and legal personnel regarding the investigation of Charge No. 470-2012-00279C." Ms. Lipnic also avers that the disclosure of these documents to individuals outside the Commission would inhibit open communication among Commission employees, thereby impairing the Commission's ability to enforce the statutes within its authority.
The deliberative process privilege applies to "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8-9 (2001) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)) (internal quotation marks omitted). As explained by this Court:
The deliberative process privilege is one which has been judicially crafted in order to promote frank discussion of issues relating to the adoption of policies, or the making of specific adjudicative decisions, within a governmental agency. Once an agency makes a decision, it is obligated to state both the decision and the reasons that support it. Those matters are public records. However, in most cases an agency is required to weigh various options prior to reaching its final decision. It may do so by questioning the wisdom of various options or questioning the accuracy of the process that has preceded the point of decision. If all intra-agency communications about such matters were made public, agency staff members might be deterred from expressing honest opinions about matters which factor into the agency's final decision. Consequently, the deliberative process privilege was created in order to protect communications "made in the course of formulating agency decisions on legal and policy matters." NLRB v. Sears, Roebuck and Co., 421 U.S. 132, 138 (1975).Dawson v. Sullivan, 136 F.R.D. 621, 624-25 (S.D. Ohio 1991). The deliberative process privilege applies to a document that is "both 'predecisional,' meaning it is 'received by the decisionmaker on the subject of the decision prior to the time the decision is made,' and 'deliberative,' the result of a consultative process." Rugiero v. U.S. Dep't of Justice, 257 F.3d 534, 550 (6th Cir. 2001) (citations omitted). "Although this privilege covers recommendations, draft documents, proposals, suggestions, and other subjective documents that reflect the opinions of the writer rather than the policy of an agency, the key issue in applying this exception is whether disclosure of the materials would 'expose an agency's decisionmaking process in such a way as to discourage discussion within the agency and thereby undermine the agency's ability to perform its functions.'" Id. (citations omitted). The deliberative process privilege does not, however, protect purely factual material "unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government's deliberations." NetJets Large Aircraft, Inc. v. United States, No. 2:11-cv-1023, 2015 WL 1526346, at *4 (S.D. Ohio Apr. 3, 2015) (quoting In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) (citations omitted); see also Norwood v. F.A.A ., 993 F.2d 570, 577 (6th Cir. 1993) ("purely factual, investigative matters" that are "severable without compromising the private remainder of the documents" do not enjoy the protection of the exemption) (citation omitted)).
All of the documents submitted by the EEOC are predecisional, in that they were created prior to the time the EEOC made its September 30, 2015 finding of discrimination by defendants. Therefore, the question becomes whether the documents are deliberative or evaluative, i.e., reflecting "the give and take of the consultative process," Dawson, 136 F.R.D. at 625, or purely factual material that is discoverable.
The documents and the Court's ruling are as follows:
| Exhibit Number | Description(A Complete Copy of the Descriptions from ExhibitA to the Acting Chair's Declaration with SomeAdditional Notes as Indicated) | |
|---|---|---|
| FromChair'sDeclaration | FromDefendants'Submission | |
| 1 | 25 | Email from EEOC Office of Research, Information, andPlanning (ORIP) Social Science Analyst Lisa Torres to EEOCInvestigator Andrea Dayharsh, dated February 13, 2014, onePage [REV000006]. The email contains the Social ScienceAnalyst's selection of language from a published casedecision, previously produced at EEOC_RL_ 000001, that theSocial Science Analyst considered relevant to EEOC'sinvestigation of Charge No. 470-2012-00279C. |
This document is protected by the deliberative process privilege as it contains the opinion of the analyst and relates to the EEOC's internal decisionmaking process.
| 2 | 30 | Analysis and report by ORIP Social Science Analyst LisaTorres and ORIP Intern Casey Callahan to EEOCInvestigator Andrea Dayharsh, dated March 4, 2014, threepages [REV000328]. The analysis and report containORIP's statistical analyses of R&L Carriers' employment offemales compared to competitors of R&L Carriers andexternal labor markets. |
| 3 | 31 | Analysis and report by ORIP Social Science Analyst LisaTorres and ORIP Intern Casey Callahan to EEOC InvestigatorAndrea Dayharsh, dated February 27, 2014, four pages[REV000331]. The analysis and report contain ORIP'sstatistical analyses of R&L Carriers' employment of femalescompared to competitors of R&L Carriers and external labormarkets. |
Documents 2 and 3 are memoranda involving the analysis and conclusions of the author on the potential merits of an action and as such are protected by the deliberative process privilege.
| 4 | 35 | Email from EEOC Investigator Andrea Dayharsh to EEOCTrial Attorney Kenneth Brown and EEOC InvestigatorsKimberly Anderson and Tonya Davis, dated February 27,2014, one page [REV000880], forwarding email from ORIPSocial Science Analyst Lisa Torres to Investigator Dayharsh,dated February 27, 2014. The email from the Social ScienceAnalyst provides the results of ORIP's analysis regarding theemployment of female laborers at competitors of R&LCarriers.NOTE: The parties have resolved their dispute over thisdocument and the document is not included in thesubmission to the Court. |
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| 5 | 48 | Email from EEOC ORIP Social Science Analyst Lisa Torres toEEOC Trial Attorney Kenneth Brown and EEOC InvestigatorAndrea Dayharsh, with copies to ORIP Intern Casey Callahanand EEOC ORIP Director Ronald Edwards, dated March 6,2014, one page [REV004254]. The email contains the SocialScience Analyst's opinion regarding information contained in2012 and 2013 EEO-1 data submitted to EEOC by R&LCarriers.NOTE: The parties have resolved their dispute over thisdocument and the document is not included in thesubmission to the Court. |
|---|---|---|
| 6 | 50 | Email correspondence between EEOC Investigator AndreaDayharsh and EEOC ORIP Social Science Analyst LisaTorres, copying ORIP Intern Casey Callahan and EEOC TrialAttorney Kenneth Brown, dated February 27 to March 3,2014, two pages [REV004951]. The correspondencetransmits and discusses the report identified in Item No. 3above, and contains the email from the Social ScienceAnalyst identified in Item No. 4 above.NOTE: The parties have resolved their dispute over thisdocument and the document is not included in the submissionto the Court. |
The parties have resolved their dispute with respect to Documents 4, 5, and 6. In addition, the email string in Exhibit 6 is protected by the attorney-client privilege.
| 7 | 2 | Statistical Analysis prepared by ORIP at the request ofEEOC Investigator Andrea Dayharsh, dated February 2014,16 pages [REV005023], containing ORIP's analyses ofR&L Carriers' employment of women compared to externallabor markets in 2010.NOTE: The Commission has disclosed additionalsegregable factual information from this document: thesource of the data (EEO-1 reports) and the NAICS Codes,Job Codes, and geography selections used to performanalysis. |
|---|
| 8 | 3 | Statistical Analysis prepared by ORIP at the request ofEEOC Investigator Andrea Dayharsh, dated February 2014,16 pages [REV005039], containing ORIP's analyses ofR&L Carriers' employment of women compared to externallabor markets in 2011.NOTE: The Commission has disclosed additionalsegregable factual information from this document: thesource of the data (EEO-1 reports) and the NAICS Codes,Job Codes, and geography selections used to performanalysis. |
|---|---|---|
| 9 | 4 | Statistical Analysis prepared by ORIP at the request ofEEOC Investigator Andrea Dayharsh, dated February 2014,16 pages [REV005055], containing ORIP's analyses ofR&L Carriers' employment of women compared to externallabor markets in 2012.NOTE: The Commission has disclosed additionalsegregable factual information from this document: thesource of the data (EEO-1 reports) and the NAICS Codes,Job Codes, and geography selections used to performanalysis. |
Documents 7, 8, and 9 are protected by the deliberative process privilege. The factual information contained within these documents is contained in the EEO-1 reports provided by defendants to the EEOC. The EEOC also represents that it has provided defendants with the industry and job codes and the core-based statistical areas used in the analyses that are reflected in Documents 7, 8, and 9. In addition, to the extent the statistical analyses involve R&L locations other than Wilmington, Ohio, they are not relevant and, in any event, contain subjective conclusions or opinions protected by the deliberative process privilege.
| 10 | 5 | Statistical Analysis prepared by ORIP at the request of EEOCInvestigator Andrea Dayharsh, undated, one page[REV005074]. The analysis was performed on 2010 applicantand hiring data, submitted to EEOC by R&L Carriers duringthe investigation and selected by Commission staff. |
| 11 | 6 | Statistical Analysis prepared by ORIP at the request of EEOCInvestigator Andrea Dayharsh, undated, one page[REV005075]. The analysis was performed on 2011 applicantand hire data, submitted to the EEOC by R&L Carriers duringthe investigation and selected by Commission staff. |
| 13 | 55 | Statistical Analysis prepared by ORIP at the request of EEOCInvestigator Andrea Dayharsh, undated, one page[REV005077]. The analysis was performed on 2010 applicantand hire data, submitted to EEOC by R&L Carriers during theinvestigation and selected by Commission staff. |
Documents 10, 11, and 13 contain factual information that was provided to the EEOC by defendants. The remainder of these documents contain statistical analyses that are protected by the deliberative process privilege.
| 12 | 7 | Email from ORIP Social Science Analyst Lisa Torres toEEOC Investigator Andrea Dayharsh and EEOC TrialAttorney Kenneth Brown, dated December 2, 2014, one page[REV005076]. The email contains the results of statisticalanalyses performed by the Social Science Analyst on 2010and 2011 applicant and hire data contained in an expert reportprovided to EEOC by R&L Carriers.NOTE: The parties have resolved their dispute over thisdocument and the document is not included in thesubmission to the Court. |
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The parties have resolved their dispute with respect to Document 12.
In summary, the documents reviewed in camera by the Court are protected by the attorney-client privilege and/or the deliberative process privilege and need not be disclosed to defendants.
IT IS SO ORDERED. Date: 3/20/19
/s/_________
Karen L. Litkovitz
United States Magistrate Judge