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EQUAL EMPLOYMENT OPPORTUNITY COMM. v. JEWEL FOOD STORES

September 13, 2005.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
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 to compel.

I.

  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.

  A.

  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 discovery.
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 well.

  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 ...


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