The opinion of the court was delivered by: CASTILLO
The Equal Employment Opportunity Commission filed this action pursuant to § 710 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-9 (1996), to enforce four subpoenas issued against Laidlaw Waste, Inc., as part of its investigation into an EEOC charge of racial discrimination filed by a Laidlaw employee. Three of the subpoenas seek the testimony of Laidlaw employees; the remaining subpoena seeks certain documents from Laidlaw. After careful consideration of the merits of each party's arguments, including full briefing and oral argument, this Court issued an Order
requiring Laidlaw to comply with the document subpoena as modified by the Court by July 24, 1996, and to comply with the testimony subpoenas as modified by the Court by July 31, 1996. Laidlaw has appealed the Order, and now moves for a stay of the Order pending appeal, pursuant to FED. R. CIV. P. 62(c).
"The factors regulating the issuance of a stay are . . . : (1) whether the stay applicant has made a strong showing that [it] is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Hilton v. Braunskill, 481 U.S. 770, 776, 95 L. Ed. 2d 724, 107 S. Ct. 2113 (1987). "If it is plain that the party seeking the preliminary injunction [or stay]
has no case on the merits, the injunction should be refused regardless of the balance of harms," however. Green River Bottling Co. v. Green River Corp., 997 F.2d 359, 361 (7th Cir. 1993); see also Mil-Mar Shoe Co., Inc. v. Shonac Corp., 75 F.3d 1153, 1156 (7th Cir. 1996).
Laidlaw initially argued that it is likely to succeed on the merits of its appeal both as to the document subpoena and the testimony subpoenas. However, Laidlaw's reply brief now informs the Court that, as of July 24, 1996, it has "complied with" that portion of the Order relating to the document subpoena. See Def.'s Reply Br. in Supp. of Mot. for Stay at 2. Thus, this entire portion of Laidlaw's appeal is quite probably moot. The request for a stay is certainly moot: Laidlaw has apparently already produced the documents that it asked this Court not to force it to produce during the appeal. Accordingly, we deny this portion of Laidlaw's request for a stay as moot.
As to the testimony subpoenas, Laidlaw relies on the argument that the subpoenas were procedurally defective because no witness fees were tendered with the subpoenas. This argument appeared to have been waived by Laidlaw's counsel at oral argument. The issue of fees was not mentioned at any time during the hearing. Further, Mr. Hartsfield, the "outside general counsel" for Laidlaw, indicated that Laidlaw's only objection to producing its employees pursuant to the subpoenas was the procedure for taking testimony that the EEOC wished to use:
MR. HARTSFIELD: . . . the way they wanted to procure that testimony was to swear them in under oath and take that testimony down on a note pad with no record of a transcript whatsoever.
My objection to that issue was them taking the sworn testimony of my people was the procedure they were demanding to use. I said that that is inappropriate to take sworn testimony by writing down portions of their responses that you deem to be appropriate.
MR. HARTSFIELD: Absolutely. . . .
It's a procedure that I have never heard of any other agency doing, and I've certainly never encountered that procedure. That is, in a nutshell, the gist of my objection to them taking the testimony of the individuals. . . .
June 27, 1996 Transcript of Proceedings at 9-10.
Now, if we can go to some of the I guess specific arguments that we have with respect to the documents, and again, I'll just set the witnesses aside because my view on that is the only objection I have to that is the method of taking the testimony, not whether they're entitled to do so or not.
Id. at 14 (emphasis added). Laidlaw thus appeared to have waived its argument that it was excused from compliance with the testimony subpoenas by the EEOC's failure to tender witness fees. In addition, the Court's order directing compliance with the subpoenas addressed Laidlaw's only stated concerns by requiring that the testimony be properly ...