United States District Court, N.D. Illinois, Eastern District
September 13, 2005.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
JEWEL FOOD STORES, INC., Defendant.
The opinion of the court was delivered by: SIDNEY SCHENKIER, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Equal Employment Opportunity Commission, has filed a
motion to compel defendant, Jewel Food Stores, Inc., to respond
fully to Plaintiff's Interrogatories Numbers 5, 6 and 9 (doc. #
39). For the reasons discussed below, the Court grants the motion
We begin by setting forth the interrogatories in dispute.
Interrogatory No. 5 states as follows:
Identify each communication (oral or written) (see
Definition No. 5)*fn1 since April 1, 2001,
Defendant has had with any person concerning any
alleged discrimination or harassment of any employee
of Defendant at its Orland Park Store. Fully describe
the action (including investigation or disciplinary
action), if any, taken by Defendant resulting from
the communication, the date(s) of the action, and
identify all documents relating thereto.
Interrogatory No. 6 states as follows:
Identify each person who may have knowledge or
information supporting or relating to any of the
allegations, claims or defenses asserted in this case
and for each person describe in detail what knowledge
or information each person is believed to have. Interrogatory No. 9 states as follows:
Identify . . . each person from whom Defendant has
obtained a statement, affidavit or the like, written
or otherwise, concerning any act, circumstance or
event related to any claims or defenses in this case
and for each such statement provide the substance of
the statement and identify the custodian thereof.
In responding to these (and other) discovery requests, Jewel
has disclosed interviews of persons conducted by Jewel's Human
Resources personnel concerning the allegations of sexual and
racial harassment set forth in the EEOC complaint, as well as
information obtained in those interviews. However, Jewel has
withheld the names of the persons who have been interviewed by
Jewel's counsel (rather than by Human Resources personnel) in
connection with the allegations in this case, and has failed to
disclose the information that those persons possess concerning
the allegations in the case. In its motion to compel, the EEOC
asks for an order compelling Jewel "to comply fully with
Interrogatory Nos. 5, 6, and 9 by identifying the individuals
whom it has interviewed and providing the facts it obtained from
them" (EEOC's Motion at 9).*fn2
Although Jewel raises a number of objections to the
interrogatories, the core objection by Jewel is that disclosure
of that information would invade the work product of Jewel's
counsel. We reject Jewel's objections to disclosure.
Because we consider the work product issue to be the most
significant objection raised by Jewel, we start our discussion by
addressing that issue. The attorney work product doctrine
provides protection for materials prepared by an attorney in
anticipation of litigation, sheltering "the mental processes of the attorney, [and] providing a privileged area
within which [s/]he can analyze and prepare his client's case."
United States v. Nobles, 422 U.S. 225, 238 (1975). Thus,
opinions formed by the attorney as part of the mental process of
analyzing a case are protected from disclosure. See, e.g.,
Hickman v. Taylor, 329 U.S. 495, 510 (1947).
However, the work product doctrine, which "provides an
exception to the otherwise liberal discovery rules," Beneficial
Franchise Co. v. Bank One, N.A., 205 F.R.D. 212, 215 (N.D. Ill.
2001), does not protect factual information that a lawyer obtains
when investigating a case:
[i]t is settled law . . . that the work product
concept furnishe[s] no shield against discovery, by
interrogatories or by deposition, of the facts that
the adverse party's lawyer has learned, or the
persons from whom he has learned such facts, or the
existence or nonexistence of documents, even though
the documents themselves may not be subject to
Board of Edu. of Evanston, Twnsp. High Sch. Dist. No. 202 v.
Admiral Heating and Ventilating, Inc., et al., 104 F.R.D. 23, 32
(N.D. Ill. 1984) (citing 8 Wright & Miller, FEDERAL PRACTICE AND
PROCEDURE, § 2023, at 194 & n. 16 (1970)). In other words, "a
party may properly `inquire into the identity and location of
persons having knowledge of relevant facts,'" but "the party may
not do so in a fashion that effectively infringes upon the
opposing attorney's preparation of [the] case for trial."
Admiral Heating, 104 F.R.D. at 32.
In this case, the EEOC's interrogatories fall on the side of
seeking permissible factual information, and not impermissibly
seeking mental impressions. Interrogatories Nos. 5, 6 and 9
(albeit in different and somewhat overlapping ways) ask only for
factual information: the identities of persons who have
information or who have made statements relating to the claims or
defenses in the case, the substance of the information they
possess, and the statements they have made. The interrogatories do not ask Jewel to disclose what particular
questions its attorneys asked during any interviews, or anything
about its counsel's analysis of the witnesses or the factual
information they provided (or did not provide). Nor do the
interrogatories ask Jewel to categorize what information might be
helpful or harmful to the claims or defenses of the parties. They
simply ask for information "concerning (Interrogatory No. 5),
supporting or relating to" (Interrogatory No. 6) (emphasis
added), or "related to" (Interrogatory No. 9) the allegations,
claims or defenses. That kind of factual information is routinely
sought in discovery, and may not be withheld from production on
the basis of work product.
Jewel argues that it should not be required to answer the
interrogatories, because it cannot "separate the underlying facts
from counsel's mental processes, impressions and strategies"
(Def.'s Mem. at 6). That is a make-weight argument. Competent
counsel routinely obtain information through interviewing
witnesses and reviewing documents, and are able to provide
interrogatory responses that set forth only that factual
information without revealing "mental processes, impressions and
strategies." We expect Jewel's counsel to be able to do so as
Jewel further argues that merely disclosing whom its attorneys
interviewed will invade the attorneys' mental processes, by
revealing the persons whom Jewel's attorneys deemed important
enough to interview (Jewel's Mem. at 7). However, we think that
the fact that Jewel (or its counsel) has talked to certain
persons who are potential witnesses, without more, reveals little
or nothing about which witnesses Jewel considers important. We
note that a substantial body of case law holds that the work
product doctrine does not protect from production documents that
attorneys obtain from third parties during their investigation in
connection with a lawsuit. See, e.g., In re Grand Jury Subpoenas
Dated October 22, 1991 and November 1, 1991, 959 F.2d 1158, 1166
(2d Cir. 1992); Bohannon v. Honda Motor Co., Ltd., 127 F.R.D. 536, 539-41 (D.
Kan. 1989). The reasoning of these cases is that the mere
assembly of documents, without more, does not indicate that the
attorney placed special weight on those documents as opposed to
documents that were not obtained, and does not reveal which of
the assembled documents the attorney deems important. We think
that reasoning applies here as well. A witness may not be
interviewed for a number of reasons that do not bear on his or
her importance. Moreover, a witness who has been interviewed may
turn out to be unimportant, while a witness who has yet to be
interviewed might be critical.
In addition, Jewel's argument ignores that the interrogatories
themselves do not seek to discover the persons whom Jewel's
attorneys interviewed and what they said. The interrogatories
asked only for disclosure of persons with knowledge (and a
description of what they know), and of persons whom Jewel
communicated with or took statements from in connection with the
claims or defenses in this case. The interrogatories did not ask
that Jewel distinguish between those persons who were interviewed
by counsel, and those who were interviewed by others at Jewel
(such as, personnel from the Human Resources Department). It is
only because Jewel decided to object to the interrogatories that
answering them now might make this distinction clear. If so, then
that is a wound that Jewel has inflicted on itself. We will not
hold the EEOC's interrogatories improper simply because of a
strategic choice that Jewel elected to make.
In support of its work product objection, Jewel cites Admiral
Heating, in which the court held that defendants were not
required to answer an interrogatory that asked it to disclose the
people whom defendants interviewed concerning the claims in the
case, and the circumstances of the interviews. 104 F.R.D. at 32.
The court reasoned that answering this request would provide more
than factual information, and would give plaintiffs "the
potential for significant insights into the defense lawyers' preparation of their case." Id. We have
considered this analysis, and with respect, part company from it.
As the Admiral Heating court recognized, 104 F.R.D. at 32, in
response to an interrogatory a defendant must identify those
persons with knowledge of discoverable information, and what that
information is. Unlike Admiral Heating court, we do not believe
that a discovery request that asks who has been interviewed and
what they said runs afoul of the work product protection, at
least where the request does not ask who conducted the interview.
Here, the EEOC's interrogatories do not cross that line, because
the interrogatories do not ask whether it was Jewel's lawyers or
instead someone else at Jewel who had communications with persons
(Interrogatory No. 5) or took statements from them (Interrogatory
No. 9) concerning the claims or defenses in the case.
In support of its work product objection, the EEOC also cites
Stone Container Corp. v. Arkwright Mutual Ins. Co., No. 93 C
6626, 1995 WL 88902 (N.D. Ill. 1995), and Stokes v. Renal
Treatment Centers-Illinois, Inc., No. 4:97CV2420 CDP, 1998 U.S.
Dist. LEXIS 21022 (E.D. Mo. 1998). Neither of those decisions
advances the EEOC's position.
In Stone Container, a party sought documents selected by his
adversary's attorney to help his client (rather than a neutral
witness) to prepare for a deposition. The district court found
that production of the selected documents used by the attorney
prior to the deposition was protected by the work product
doctrine. Relying on Sprock v. Peil, 759 F.2d 312, 315 (3rd
Cir. 1985), the Stone Container court held that "the selection
process itself represents defense counsel's mental impressions
and legal opinions as to how the evidence in the documents
relates to the issues and defenses in the litigation." Stone
Container, 1995 WL 88902, at *4. Noting some disagreement with
this holding, the district court found that the documents the
attorney selected before a deposition to show his client had already been produced. This was a key fact
for the Stone Container court because assertion of the work
product privilege was not being used to deprive the party who
sought the documents of discoverable information. Moreover, the
Stone Container court found a substantive distinction between
selection of specific documents from a larger group, and
production of the documents in a context that did not reveal the
selection. 1995 WL 88902, at * 4. Thus, the court found that the
attorney withholding the documents should not be required to
reveal, prior to the deposition, the particular documents
selected by the attorney to prepare his client. Id.
In Stokes, the dispute centered on whether the plaintiff's
counsel had to reveal contacts with employees and former
employees of the defendant, together with the information she
obtained from them. Defendant served plaintiff with an
interrogatory requiring her to "state whether you or anyone
acting on your behalf is aware of and/or has obtained a statement
from defendant or any of its employee(s), agent(s) or
representative(s) concerning matters alleged in the complaint."
The plaintiff's counsel admitted that she had obtained signed
statements from five of defendant's current and former
non-managerial employees, but she refused to specifically
identify these employees on the grounds that this information was
protected from disclosure by the attorney-work product doctrine.
Id. at * 4-5. However, in response to other interrogatories,
plaintiff identified all persons whom she believed have knowledge
of the matters alleged in the complaint and described with
particularity all facts supporting her allegations. Id. at * 3.
In opposing the motion to compel, plaintiff's counsel also
disclosed the job titles of the employees who were interviewed,
the person who interviewed them, and the dates upon which the
statements were obtained and signed. Id. at *3-4. The
defendant, nonetheless, maintained that plaintiff should be
required to specifically identify the five current and former
employees that plaintiff's counsel selected to interview. Id.
at * 4. The Stokes court disagreed. Id. at * 6. The court reasoned
that the plaintiff's counsel had already produced the
discoverable information to defendant when she disclosed all
persons having knowledge of the matters raised in her complaint
and all facts supporting those allegations. Id. at * 3. Thus,
invocation of the attorney work product doctrine was used to
shield plaintiff's counsel's selection of certain witnesses to
prepare her case, and not to prevent disclosure of basic factual
information. Id. at *5-6.
The lesson we draw from Stone Container and Stokes is that
where the discoverable information the underlying principal and
material facts related to the allegations has already been
produced in some manner (either through prior document production
or through Rule 26 disclosures or by answering interrogatories
about persons with knowledge and the substance of that
knowledge), then the answering party does not need to disclose
the identity of witnesses it has chosen or documents it has
selected to review to prepare its case. But, these cases do not
hold that work product can shield otherwise discoverable
information from production where it has not already been
produced (such as the identity of persons who have knowledge or
information relevant to plaintiffs claims); nor do these cases
stand for the proposition that the underlying principal and
material facts related to the allegations in the complaint do not
need to be produced.
In addition, these cases are each distinguishable from the
situation presented here on other grounds. The Stone Container
decision applied the "compilation and selection" doctrine from
Sprock, which is a narrow exception to the more general rule
that documents obtained by an attorney from third parties are not
work product. See In Re Grand Jury Subpoenas Dated March 19 and
August 2, 2002, 318 F.3d 379, 386 (2d Cir. 2003). In this case,
Jewel is not being asked to provide some select subset of the
interviews conducted or statements obtained, and thus the
compilation and selection doctrine does not apply here. And, in Stokes, the
plaintiff in fact disclosed the names of persons who were
interviewed, which Jewel has declined to provide, as well as
identity of the persons conducting the interviews, which goes
beyond the information that the EEOC's interrogatories sought.
For all of these reasons, we are unpersuaded that the
interrogatories at issue invade the work product of Jewel's
attorneys. Accordingly, we reject Jewel's work product objection.
We now turn to the other objections raised by Jewel to
Interrogatories Nos. 5, 6 and 9. We have considered those
objections, and we conclude that those objections are without
First, Jewel argues that the EEOC already has agreed to
modify Interrogatory No. 5, and that it has answered the
interrogatory as modified (Jewel Mem. at 3-4 and n. 4). The EEOC
denies that there was an agreement to modify that interrogatory.
The EEOC states that while it had proposed a modification, Jewel
rejected the proposal in a letter of July 26, 2005, and then
changed course and purported to accept the proposal in a letter
dated August 11, 2005 the same day on which the EEOC filed this
motion (EEOC Reply at 4-5 and Ex. A). Having reviewed the
correspondence, we agree with the EEOC, and reject Jewel's
Second, Jewel argues that all of the interrogatories are
improper because they seek information from the interviews or
communications that is not "relevant or reasonably calculated to
lead to the discovery of admissible evidence" (Jewel Mem. at 2).
That argument is without merit, as each of the interrogatories
seeks only information that concerns or relates to the
allegations, claims or defenses in the case. It is hard to see
what could be more relevant than information about those
subjects. Third, Jewel claims that by seeking information "supporting
or relating to . . . allegations, claims or defenses,"
Interrogatory No. 6 contravenes the mandatory disclosure
requirement in FED. R. Civ. P. 26(a)(1), which more narrowly
requires a party to disclose only the witnesses and documents
that a party "may use to support its claims or defenses" (Jewel
Mem. at 4-6). This argument conflates what a party must disclose
at the beginning of a case, without being asked, and what a party
must disclose in response to a discovery request. The mandatory
requirement in Rule 26(a)(1) that a party disclose the
information it may use to advance a claim or defense does not
exempt a party from the obligation to disclose, in response to a
discovery request, other information that may hurt its case.
There is no "bad information" exception to the obligation to
respond to discovery requests.
Fourth, Jewel argues that providing information in response
to these interrogatories "could constitute an admission of
relevance" of the information provided (Jewel Mem. at 6). This is
another make-weight argument; indeed, we are not aware of Jewel
raising this argument in connection with other information it has
provided in discovery. In any event, the EEOC disavows, as it
must, any intent to argue that the production of information
concedes relevance (EEOC Reply Mem. at 5). Since the concept of
relevance is different for purposes of discovery than for
admissibility at trial, production of information in discovery
"is not a concession or determination of relevance for purposes
of trial." Abel Investment Co. v. United States, 53 F.R.D. 485,
488 (D. Neb. 1971) (quoting Advisory Committee's Explanatory
Statement Concerning Amendments of the Discovery Rules,
48 F.R.D. 487, 498 (1970)).
Fifth, Jewel argues that Interrogatory No. 6 is overly broad
and unduly burdensome, because "it asks Jewel to provide in
response to one interrogatory a detailed narrative of each fact
that the EEOC may want to use to prove its case" (Def.'s Mem. at
7).*fn3 We think this objection overstates the scope of the
interrogatory. Interrogatory No. 6 does not seek a description of
every fact or document relating to the claims in the case; it
seeks to discover who has knowledge relating to the case, and to
learn what it is that they know. In that respect, Interrogatory
No. 6 is distinguishable from the discovery requests at issue in
the cases cited by Jewel, which involved requests for all facts,
witnesses and documents supporting a particular allegation in the
case, Hiskett v. Wal-Mart Stores, Inc., 180 F.R.D. 403 (D. Kan.
1998), or all claims in the case. Hilt v. SFC Inc.,
170 F.R.D. 182, 188 (D.Kan. 1997).
The kind of information sought in Interrogatory No. 6 is
commonly sought through interrogatories. And, providing this kind
of information through interrogatories can have the salutary
effect of streamlining discovery, by providing the requesting
party with information that will allow that party to decide which
people with knowledge are necessary to depose. The use of
interrogatories to limit or narrow the use of more costly
deposition discovery is in line with the goal of "secur[ing] the
just, speedy, and inexpensive determination" of lawsuits. FED. R.
CIV. P. 1.
The line that separates an interrogatory that seeks enough
information to serve this useful purpose, and one that seeks so
much information as to be unduly burdensome, is not always
crystal clear. Here, Interrogatory No. 6 is framed broadly, using
terms such as "each person" and "any of the allegations, claims
or defenses asserted in this case." However, any concerns that we
otherwise might have with the framing of that interrogatory are
dispelled when we read that interrogatory together with Interrogatories Nos. 5 and 9, and in light what the
EEOC seeks in its motion to compel with respect to all three
interrogatories: responses "identifying the individuals whom
[Jewel] has interviewed and providing the facts it obtained from
them" (EEOC Motion at 9). That kind of information is
discoverable, see, e.g., Stokes v. Renal Treatment Centers-Ill.,
Inc., No. 97CV2420, 1998 U.S.Dist. LEXIS 21022, * 6 (E.D. Mo.
1998) (defendant entitled to discover identity of employees with
knowledge or who gave statements to plaintiff); In re Folding
Carton Antitrust Litig., 83 F.R.D. 256, 259 (N.D. Ill. 1979)
(interrogatories seeking substance of communications related to
plaintiff's claims held proper), and must be produced by Jewel
The plaintiff's motion to compel (doc. # 39) is granted. Jewel
is ordered to supplement its responses to Interrogatories Nos. 5,
6, and 9 by identifying the individuals whom it has interviewed
and providing the facts it obtained from them. Jewel is ordered
to provide these supplemental responses by the close of business
on September 30, 2005.*fn4
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