United States District Court, N.D. Illinois, Western Division
August 31, 2005.
DEMETRIC BELL, MARILYN BERRY, CATHERINE BROWN, KIMBERLY BUCHANAN, GILBERTO GONZALEZ, DELLA JARRETT, TIMMY LINK, EDDIE MANNING, JR., KIM NACHAMPASSACK, DUANE PARKS, BRENDA RILEY, DARNEL ROYAL, ROBIN SALLIS, VELMA SANDERS, BARBARA SMITH, TONY TRIPLETT, JANET WILKINS and FRED WYNNE, individually and on behalf of similarly situated persons, Plaintiffs,
WOODWARD GOVERNOR COMPANY, Defendant.
The opinion of the court was delivered by: P. MICHAEL MAHONEY, Magistrate Judge
MEMORANDUM OPINION AND ORDER
This matter comes before the court on two separate, but
related, motions: Plaintiffs' August 22, 2005 Motion to Compel
Production of Documents Containing Representations of Compliance
with Federal Contractor Affirmative Action Obligations and
Defendant's August 25, 2005 Motion for Protective Order Regarding
Plaintiffs' Counsel's Interference with Woodward's Relationships
with Third Parties. For the reasons stated below, Plaintiffs' and
Defendant's Motions are granted in part and denied in part.
Pursuant to Executive Order 11246 and 41 C.F.R. Parts 60-1 and
60-2, certain government contractors are required to develop and
maintain an annually updated written affirmative action program. A contractor may be debarred from
receiving future contracts or modifications or extensions of
existing contracts for any violation of Executive Order 11246 or
its implementing rules, regulations and orders.
41 C.F.R. § 60-1.27.
Plaintiffs state, and Defendant does not deny, that Woodward
Governor is a federal contractor subject to affirmative action
obligations. As part of its obligations, Woodward Governor would
be required to make certifications regarding its compliance with
41 C.F.R. Parts 60-1 and 60-2 at the outset of a negotiation for
a federal contract. Plaintiffs maintain that Defendant is either
in default of its discovery obligations, or has not been in a
position to truthfully certify its compliance with affirmative
action obligations since 2003 because Defendant has not produced
a written affirmative action program for 2004 or 2005 in the
course of discovery. In support of their allegation that
Defendant does not have a current affirmative action plan,
Plaintiffs call the court's attention to deposition testimony
from Woodward employee, Ms. Kikren Sue Lawrence, that suggests
Defendant had no affirmative action plan for 2004. See Pl.s'
Mtn. at 2 (citing Ex. A, Lawrence Dep. at 133). Plaintiffs also
cite, but do not attach, the similar deposition testimony of
Carol Smith. (Pl.s' Resp. at 1).
Following up on discovery related to Defendant's affirmative
action program, Plaintiffs served a May 2, 2005 document request
seeking production of certifications made by Woodward regarding
compliance with federal contractor affirmative action
obligations. Defendant objected to the request as overly broad
and irrelevant, but also stated that it had not located any
additional documents responsive to the request not already
On August 4, 2005, Plaintiffs deposed Woodward employee, Mr.
Ronald Glisan, who is in charge of direct government sales for
Woodward. See Pl.s' Mtn. at 3 (citing Ex. C, Glisan Dep. at 62-64, 86-87, 89). Mr. Glisan testified that affirmative
action certifications are filed, stored, and retained as bid
packages for seven years in his office. Mr. Glisan also testified
that no one had asked him to gather these documents for the
pending lawsuit, and that he was not aware of any requests made
to anyone in his department.
Based upon the above deposition testimony, Plaintiffs now seek
an order compelling Defendant to produce certifications, form
1999 to the present, as responsive to their May 2, 2005 document
request. Plaintiffs maintain that the certifications are relevant
as probative of discriminatory intent under Mozee v. American
Marine Serv. Co. 940 F.2d 1036, 1051 (7th Cir. 1991).
Defendant, in response to Plaintiffs' Motion to Compel, filed a
Motion for a Protective Order regarding Plaintiffs' counsel's
attempt to interfere with Woodward's relationships with the OFCCP
and the EEOC. During oral argument on the Motions, it became
clear that Defendant also seeks protection from the disclosure of
certifications produced in discovery to private, non-governmental
entities. Defendant maintains that Plaintiffs' May 2, 2005
document request is irrelevant to the pending law suit as
certifications only state compliance with federal contractor
obligations and do not show a failure to comply with an
affirmative action plan as was contemplated as evidence of
discriminatory intent in Mozee. 940 F.2d at 1051.
As always, the court looks to Fed.R.Civ.P. 26 and 37 to
decide whether discovery should be allowed. Generally, parties
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 trial if the discovery
appears reasonably calculated to lead to the discovery of
admissible evidence. Fed.R.Civ.P. 26(b)(1). Even so, the court does have
authority to limit discovery that is unreasonably cumulative or
unduly burdensome or expensive. See Patterson v. Avery Dennison
Corp., 281 F.3d 676, 681-82 (7th Cir. 2002) (stating that the
court should weigh the value of the material sought against the
burden of providing it). Under Rule 26(c), it is clear that "for
good cause shown, the court in which the action is pending . . .
may make any order which justice requires to protect a party or
person from annoyance, embarrassment, oppression, or undue burden
or expense, including . . . (1) that the disclosure or discovery
not be had; (2) that the disclosure or discovery may be had only
on specified terms and conditions, including a designation of the
time or place; (3) that the discovery may be had only by a method
of discovery other than that selected by the party seeking
discovery; [and/or] (4) that certain matters not be inquired
into, or that the scope of the disclosure or discovery be limited
to certain matters . . ." Fed.R.Civ.P. 26(c).
The court has discretion to decide when a protective order is
appropriate and what degree of protection is required. Seattle
Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). Only good cause
is required in determining whether or not to issue a protective
order. Id. at 37. In deciding whether good cause exists, the
court must balance the interests of the parties, taking into
account the harm to the party seeking the protective order and
the importance of the disclosure to the non-moving party.
Wiggins v. Burge, 173 F.R.D. 226, 229 (N.D. Ill. 1997). The
party seeking the protective order has the burden of showing that
good cause exists by alleging particular and specific facts. See
Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981). Thus, to decide
Plaintiffs' Motion to Compel and Defendant's Motion for a
Protective Order, the court must balance the value of the
material sought against the burden of providing it. In this case, the court finds that Plaintiffs' likelihood of
discovering relevant information from Defendant's production of
documents containing representations of compliance with federal
contractor affirmative action obligations ultimately outweighs
the burden of production on Defendant, but the court also finds
that Defendant is entitled to certain protections from the
unnecessary disclosure of discovery materials to private,
To begin with, the court addresses the relevancy of the
requested certifications to the pending class action employment
discrimination lawsuit.*fn1 Proving class-wide liability for
intentional discrimination, or disparate treatment, requires a
showing that an employer conducted business through a pattern or
practice of discrimination. Teamsters v. United States,
431 U.S. 324, 336 (1997). More than mere isolated incidents of
discrimination, proof in pattern or practice cases requires "that
racial discrimination was the company's standard operating
procedure the regular rather than the unusual practice." Id.
Here, both parties argue either for or against relevancy based
on their interpretation of Mozee v. American Marine Serv. Co.
940 F.2d 1036, 1051 (7th Cir. 1991). In Mozee, the Seventh
Circuit affirmed that "[e]vidence of an employer's failure to
follow the requirements of an affirmative action plan is . . .
relevant, though not conclusive, in determining intentional
racial discrimination." Id. In this case, it is the existence
(or non-existence) of an affirmative action plan that is at
issue; not the failure to follow requirements of an affirmative
action plan as in Mozee. Nonetheless, this court finds that an
alleged failure to create/maintain an affirmative action plan tracks the relevance of alleged failure to follow the
requirements of an affirmative action plan. As the sought after
certifications contain Defendant's statement of compliance with
Executive Order 11246 and its implementing rules, regulations and
orders, and may contain relevant dates, signatures, and
information leading to the discovery of other relevant
information, the court finds the certifications relevant and
subject to discovery.
However, the court is not deaf to Defendant's claims of
"annoyance, embarrassment, oppression, or undue burden" stemming
form the release of certifications identifying the persons or
entities with which Defendant conducts business. Fed.R.Civ.P.
26(c). While there is little physical or economic burden to
Defendant as the relevant documents appear to be stored in one
office, there is a risk of annoyance and interference with
Defendant's business relationships with governmental entities and
non-governmental entities unrelated to the pending litigation.
Defendant asks the court to immunize its current business
relationships from disparagement or other forms of antagonistic
behavior as a result of producing, unrestricted to Plaintiffs,
certifications that may contain identifying information of
Defendant's business associates.
As a rejoinder to Defendant's burden, Plaintiffs maintain that
they have every right to communicate with the EEOC and the OFCCP
regarding Defendant's compliance with government regulations, but
deny any interest in contacting private, non-governmental
entities or persons that do business with Defendant.
Based on the above, the court finds three things that must be
factored into its balancing equation. First, the court finds that
the value of the documents sought by Plaintiffs is relatively
high as production may be probative towards Plaintiffs' prima
facie case. Second, the court finds that the Defendant's burden of production is also high due to the
risk of interference with Defendant's business relationships with
private, non-governmental entities.*fn2 Third, the court
finds that underlying this entire balancing dilemma is the fact
that Plaintiffs have disclaimed any intent to contact private,
non-governmental entities. Construed together, it appears to the
court that this is a case where the court should use its
discretion under the Federal Rules not to deny discovery, but to
place reasonable restrictions on the scope and use of documents
Accordingly, the court grants Plaintiffs' Motion to Compel in
part and orders Defendant to produce all documents responsive to
Plaintiffs' May 2, 2005 document request. However, the court
limits the production in two ways. First, the court gives
Defendant permission to redact the identifying information of
private, non-governmental entities contained in documents
produced. Second, the court grants Defendant's Motion for a
Protective Order in part by restricting Plaintiffs from releasing
to private, non-governmental entities information and documents
produced by Defendant regarding certifications.
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