by Art Gutman Ph.D., Professor, Florida Institute of Technology

The case is EEOC v. Freeman, decided on August 14, 2012 by Judge Charles B. Day, Magistrate for the District Court of Maryland [2012 U.S. Dist. Lexis 114408]. The facts are that the EEOC sued Freeman on grounds that its use of background checks and criminal records adversely impacted blacks, Hispanics, and males. Freeman then moved to depose the EEOC regarding its own use of background checks and criminal history, to which the EEOC filed a motion for a protective order and Freeman filed a motion its own motion (a surreply on the EEOC’s motion). Judge Day rejected both motions and ruled that a hearing on them is unnecessary. Judge Day examined three issues.

Frist, the EEOC argued that the deposition would not discover information relevant to claims and defenses in this case because Freeman has (1) not pled an equitable estoppel defense and (2) its business necessity defense lacks merit. On the estoppel issue, Judge Day ruled:

Because Defendant failed to include equitable estoppel as an affirmative defense in its Answer and has not yet obtained leave to amend its Answer to include this defense, discovery of matters relating to this affirmative defense are not relevant, and Defendant cannot depose Plaintiff on topics related to this defense.

And on the issue of the business necessity defense, Judge Day ruled the EEOC:

[C]annot avoid a deposition because it believes that Defendant's business necessity defense is baseless. Arguments regarding the merits of claims or defenses asserted in pleadings "[are] not the kind[s] of argument[s] that the Court can adequately entertain in a discovery dispute." [ citing several relevant cases]

Second, the EEOC argued it cannot be deposed because the Office of Personnel Management (OPM) formulates and conducts all hiring procedures and, as a result, it does not, itself have the authority to make “suitability determinations.” Judge Day's ruling on this issue was:

[E]ven if Plaintiff uses OPM's federally mandated procedures, the facts show that Plaintiff is involved in the hiring process, and so Defendant's 30(b)(6) deposition of Plaintiff regarding its actual involvement in that process and the process itself would provide relevant information.

Third, the EEOC argued that a deposition would be "unduly burdensome, duplicative and interfere with agency functioning" because (1) such information is already available and is, therefore redundant; (2) Freeman already had ample opportunity to obtain the information it wanted; and (3) “the burden or expense of the proposed discovery outweighs its likely benefit.” Judge Day rejected all three arguments.

It should be interesting to see what happens next.

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