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EEOC Wins Right to

Keep Investigation Memo from Employer



    Recently we reported that a federal judge in Chicago had ordered an employer to turn over its lawyer’s compilation of witness information to the EEOC, because the work product privilege did not apply (and the attorney-client privilege).   When the tables turned and the EEOC refused to turn over an internal report from an investigator that concluded an employer should be sued for discrimination, another judge ruled last week that the EEOC could refuse to produce it.  U.S. Equal Employment Opportunity Commission v. Continental Airlines, No. 04 C 3055.   The report was shielded from disclosure under the “deliberative process” privilege.


    Magistrate Judge Keys of the Northern District of Illinois found that the clear relevance of the report to the issue of discrimination was outweighed by the agency’s interest in maintaining secrecy of its deliberations and assessments of the evidence.


    The controversy began when Alaini Mustafaa filed a charge against the airline, claiming

Discrimination and retaliation on the basis of classifications protected under Title VII, her race and her gender.  Chicago District Office investigator Tyler Graden analyzed the information gathered in his probe of the charge and recommended that the Commission sue Continental.  Continental deposed Graden.  He testified about what method he used to prepare the report, and told the employer’s attorneys that he had reviewed the report prior to attending the deposition.  When the EEOC still refused to turn it over, invoking the deliberative process privilege, the company went to court to force the disclosure of the report.


    Although not all agency deliberations are privileged from discovery, Judge Keys found, “predecisional” government documents are.  Here, Graden prepared the report before the Commission filed suit, and the report (that the judge had read ‘in camera’, i.e., in his chambers in private) reflected the investigator’s impressions about the facts presented to him by Continental, Mustafaa, and their witnesses.  Because Continental could show no “particularized need” for getting its hands on the report, its motion to compel production was denied.


    There is some  - but not a truckload – of logic to the refusal to grant the motion in this case and the willingness to grant the motion in the attorney’s disclosure case.  In both instances the focus was on the mental impressions and deliberations of the holder of the privilege.  In each case these impressions were safeguarded from disclosure.  But in reality the situation is not that simple.  Separating facts from impressions is not always that obvious.  The act of pursuing this piece of information, or electing not to bother with that one, is an analytical one.  


    A second, equally troublesome issue here – and one conceptually connected with the first - is whether an administrative agency should have the luxury of deciding whether to go after an employer and never have to justify, before the law, its reasons for doing so.  Were Continental to sue the EEOC, the EEOC could chase down, and demand, all documents of any kind (other than those protected by attorney-client privilege) reflecting the company’s deliberations over whether to go to court.  As a result the public is denied the right to hold an agency accountable for overreaching and excesses that depend less on the facts and the law and more on unmeritorious motivations, such as political agendas – or personal ambition.