The opinion of the court was delivered by: P. MICHAEL MAHONEY, Magistrate Judge
Memorandum Opinion and Order
On December 9, 2003, Plaintiffs (eighteen individuals as of December
5, 2003) filed Plaintiffs' Motion to Compel Production of EEO-1 Reports,
Affirmative Action Plans and OFCCP Audits ("Motion to Compel Reports").
This court set the motion on a briefing schedule and as of January 20,
2004, the motion has been fully briefed. For the following reasons,
Plaintiffs' Motion to Compel Reports is granted.
This is a class action suit seeking redress for the alleged unlawful
employment practices on the basis of race by Defendant Woodward Governor.
Defendant designs and manufactures hydromechanical and electronic
controls, fuel delivery systems, actuators, valves and related
components. Plaintiffs allege that Defendant, for many years, has engaged
in a practice of discrimination against African Americans, Hispanics and
other minorities with respect to compensation, promotions, hiring, and
other terms and conditions of employment. Additionally, Plaintiffs allege
that minorities are under-represented in Defendant's work force and
severely under-represented in Defendant's management and supervisory
The original complaint contained 16 named Plaintiffs who are either
African American or Hispanic. Plaintiffs' complaint contains three
counts: 1) Section 1981. Race Discrimination in Compensation; 2) Section
1981. Race Discrimination in Terms and Conditions of Employment; and 3)
Termination and Retaliation with regards to Plaintiff Kimberly Buchanan.
On December 5, 2003, Plaintiffs amended their complaint adding two
additional Plaintiffs and two additional counts: 1) Title VII. Race
Discrimination in Compensation; and 2) Title VII Race
Discrimination in Terms and Conditions of Employment.
Plaintiffs allege that Defendant engaged in discriminatory conduct that
included, but is not limited to, the following: paying lower wages to
minority employees as compared to wages paid to white employees; failing
to advance minority employees to higher levels; subjecting minority
employees to racially hostile work environments; failing to investigate
or act upon legitimate complaints about discrimination; requiring
minority employees to perform out of class work without wages
commensurate with the work performed; criticizing and disciplining
minority employees for talking and associating with each other in the
work place; and requiring employees to refrain from revealing their rate
of pay. Additionally, Plaintiffs allege that Defendant's management has
tolerated racial slurs and stereotypes of minority employees and
Defendant's supervisors have condoned and, in some cases, participated in
Federal Rules of Civil Procedure 26(b) states, in pertinent part, that
"[p]arties may obtain discovery regarding any matter, not privileged,
that is relevant to the claim or defense of any party, . . . Relevant
information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence."
Fed.R.Civ.P. 26(b)(1). Rule
37(a)(2)(B) enforces this obligation by providing that if the
non-discovery party does not comply with Rule 26(b), "the discovering
party may move for an order . . . compelling inspection in accordance
with the request." Fed.R.Civ.P. 37(a)(2)(B).
Plaintiffs' Motion to Compel Reports seeks an order from this Court
compelling Defendant to produce its EEO-1 Reports, Affirmative Action
Plans and OFCCP Audits. In response, Defendant argues that they should be
protected from disclosing such information pursuant to the self-critical
analysis privilege. (Def.'s Resp. to Pls' Mot. to Compel Reports at 1).
This court has addressed this argument before and rejected it, as it does
The privilege of self-critical analysis was first recognized in the
area of medical malpractice. See Bredice v. Doctors Hospital,
Inc., 50 F.R.D. 249 (D.D.C. 1970). While the Defendant cites
Coates v. Johnson & Johnson, 756 F.2d 524 (7th Cir. 1985)
for support that the Seventh Circuit has recognized the self-critical
analysis privilege, this support is misplaced.
In Coates, the Seventh Circuit found that the defendant's use
of the Affirmative Action Plan at trial acted as a waiver of the
privilege and, therefore, plaintiff should have had access to the plan.
Defendant in this case appears to argue that in finding the privilege
waived, the court implicitly recognized the validity of the privilege as
it applies to affirmative action material. However, this is not true. The
Coates court avoided a conclusive determination on the existence
of the self-critical analysis privilege, instead, finding that the
withholding of the information from plaintiff was a harmless error on the
part of the trial judge. Additionally, the court in Coates
stated, "We need not decide, however, whether the district court's order
denying pre-trial discovery of defendant's self critical evaluations was
proper in this case." 756 F.2d at 552. Thus, contrary to Defendant's
apparent argument, the Coates court did not recognize the
privilege of self-critical analysis, rather
they held only that if such a privilege existed, it had
been waived by use of the material at trial. Because the Seventh Circuit
has not yet taken a definitive position on the proper scope of the
self-critical analysis privilege,*fn1 this court will rely on its past
decisions in finding that the privilege does not exist with regards to
affirmative action materials. See Jefferson v. Ingersoll Mach.
Co., 98 C. 50042, slip op. at 3 (N.D. Ill. Sept 3, 1998); Betts
v. Sundstrand, 97 C50188, slip op. at 5 (N.D. Ill. June 24, 1998).
However, even if the privilege did exist, this court would nonetheless
find that Plaintiffs' need for the information outweighs the burden
placed on Defendant in disclosing such information.
With regards to Title VII employment discrimination suits, the courts
have often held that broad discovery by plaintiff is necessary to further
the goals of the legislature in promoting equal opportunity in the
workplace. Generally, undue restrictions of discovery in Title VII cases
are frowned upon. See Ingersoll, No. 98 C 50042, slip op. at 3
(citing three circuit courts in support of proposition). Therefore,
Plaintiffs' Motion to Compel Reports is granted. Defendant is ordered to
produce all its EEO-1 Reports, Affirmative Action Plans, and OFCCP Audit
documents for the period from January 1, 1996 through the present.
Defendant is ordered to produce such information within 14 days of the
date of this order.
For the above stated reasons, Plaintiffs' Motion to Compel Reports is
granted. Defendant is ordered to produce the ...