United States District Court, E.D. Wisconsin
WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE
17, 2016, the court conducted a telephonic hearing with
respect to the Expedited Non-Dispositive Motion to Compel
(ECF No. 59) filed by the defendants, GGNSC Administrative
Services, LLC (“Administrative Services”), GGNSC
Holdings, LLC (“Holdings”), and Silver Spring
Operating, LLC, d/b/a Golden LivingCenter- Silver Spring
(“Silver Spring”). Appearing on behalf of
plaintiff Equal Employment Opportunity Commission
(“EEOC”) were Attorney César J. del Peral
and Attorney Jean P. Kamp, and appearing on behalf of the
defendants were Attorney Charles M. Roesch and Andrew B.
Millar. The court having been fully advised regarding the
matter and having heard the argument of counsel issues the
13, 2016, defendants sent a Notice of Rule 30(b)(6)
Deposition to the EEOC asking the EEOC to produce a
representative to testify on its behalf on 22 specific
topics. (ECF No. 59-2 at 4-6). On May 20, 2016, the EEOC
served on the defendants its objections to the noticed
deposition, stating that it would not produce a
representative to testify on any of the topics. (ECF No. 59-3
at 1). The parties discussed the matter in a telephone call
on May 24, 2016. The next day the EEOC sent a letter to
counsel for the defendants confirming the parties’
discussion and reiterating the bases for the EEOC’s
objections to defendants’ deposition notice. (ECF No.
59-4 at 1-4).
1, 2016, both parties filed motions for summary judgment. In
support of its Motion for Partial Summary Judgment (ECF No.
54) the EEOC filed a Declaration of Rosemary Fox, Director of
the Milwaukee Area Office of the EEOC (ECF No. 57). Ms.
Fox’s declaration contained factual statements
regarding the parties to the initial EEOC charge, the parties
encompassed by the “reasonable cause” finding of
the EEOC, the parties involved in conciliation efforts, and
the parties to whom notice of unsuccessful conciliation was
issued. (ECF No. 57 at 1-3).
2, 2016, counsel for defendants sent an e-mail to counsel for
the EEOC requesting dates on which to depose Ms. Fox. (ECF
No. 59-5 at 5). The EEOC refused to produce Ms. Fox for a
deposition. (ECF No. 59-5 at 4). Counsel for the defendants
and the EEOC made further attempts to resolve their
differences but no resolution could be reached.
6, 2016, defendants filed a Civil L.R. 7(h) Expedited
Non-Dispositive Motion to Compel in which the defendants seek
an order compelling the EEOC (a) to produce a designee to
testify to the topics set forth in their Rule 30(b)(6)
deposition notice, and (b) to produce Ms. Fox for a
deposition. (ECF No. 59). Much of the proposed discovery is
aimed at learning what facts the EEOC possesses that evidence
that each of the defendants was named in the initial charge
filed with the EEOC and that each of the defendants was
provided with an opportunity to conciliate before being sued
by the EEOC.
EEOC objects to the defendants’ discovery primarily on
the ground that the information sought is subject to
attorney-client, work-product, and/or deliberative process
privileges. (ECF No. 59-3 at 2-7). It also argues that, on
the issues of which entities were named in the initial charge
and provided with an opportunity to conciliate, the facts are
undisputed. To the extent the defendants contest that one or
more of them were not named in the charge or provided with an
opportunity to conciliate, and therefore are not properly
named as defendants in this lawsuit, that is a question of
law for the court to decide. There are no additional facts to
be gleaned at a deposition of the EEOC or Ms. Fox.
Federal Rules of Civil Procedure permit discovery regarding
“any non-privileged matter that is relevant to any
party’s claim or defense and proportional to the needs
of the case… .” Fed.R.Civ.P.26(b)(1).
“Information within this scope of discovery need not be
admissible in evidence to be discoverable.”
Fed.R.Civ.P.26(b)(1). While the EEOC’s standard
responses to the deposition topics did include “unduly
burdensome” protests, their proportionality argument
was minimally advanced and did not constitute a principal or
significant basis for their objections. Thus, the question is
whether any of the discovery sought by the defendants is
relevant and not protected from discovery by one or more of
the privileges relied upon by the EEOC.
topics in the defendants’ Rule 30(b)(6) deposition
notice seek relevant, non-privileged information and are thus
discoverable, with the following limitations.
1: Defendants may discover the factual bases of the
EEOC’s allegation in Paragraph 7 of the Second Amended
Complaint that “defendant GGNSC Holding LLC has
continuously been and is now a corporation doing business in
the State of Wisconsin and has continuously had and does now
have at least 15 employees.”
2: Defendants may discover the factual bases of the
EEOC’s allegation in Paragraph 13 of the Second Amended
Complaint that defendants “jointly operated a nursing
home doing business as Golden LivingCenter-Silver Spring,
located at 1300 West Silver Spring Drive in Glendale,
3: While a sworn statement in the form of the
Declaration of Rosemary Fox (ECF No. 57) will “usually
suffice” to satisfy a conciliation inquiry, see
Mach Mining, 135 S.Ct. 1645, 1656 (2015), her
declaration refers imprecisely to “Golden Living”
as the entity which the EEOC offered “the opportunity
to remedy the discrimination practices described in the
[EEOC’s] Determination.” Golden Living is not an
actual entity but apparently is the name by which Silver
Spring does business. Defendants maintain that Holdings and
Administrative Services are not “Golden Living”
and never had an opportunity to conciliate with the EEOC in
response to the discrimination charge filed by Ms. Barbee.
While “nothing said or done [during
conciliation]… may be… used as evidence in a
subsequent proceeding, ” Mach Mining allows
limited judicial review on whether conciliation was in fact
attempted. 42 U.S.C. § 2000e-5; Mach Mining,
135 S.Ct. at 1656 (“… a court looks only to
whether the EEOC attempted to confer about a charge, and not
to what happened (i.e., statements made or positions
taken) during those discussions.”). Therefore,
defendants may discover facts about the name(s) of the
entity(ies) who participated in the conciliation efforts.
Whether one or more of the defendants not named in the EEOC
charge or an actual participant in the conciliation process
is liable for the actions of another entity is a question of
law. See Eggleston v. Chicago Journeymen Plumbers’
Local Union No. 130, 657 F.2d 890, 905-07 (7th Cir.
4: The EEOC has withdrawn the allegation that was the subject
of Topic 4, obviating any need for the defendants to inquire
as to the factual basis therefore.
5: Defendants may discover the factual bases of the
EEOC’s allegation in Paragraph 21 of the Second Amended
Complaint that “the unlawful employment practices
complained of above in paragraph 18 were done with malice or