United States District Court, N.D. Illinois, Eastern Division
October 11, 2005.
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
CONTINENTAL AIRLINES, INC., Defendant.
The opinion of the court was delivered by: ARLANDER KEYS, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Currently before the Court is Defendant Continental Airlines,
Inc.'s ("Continental") Motion to Compel the Production of the
United States Equal Employment Opportunity Commission's ("EEOC")
Investigative Memorandum. The EEOC investigated charges of
discrimination, harassment, and retaliation filed by
Continental's employee, Alaini Mustafaa. Continental now seeks to
discover the EEOC's investigative report. For the reasons set
forth below, Continental's Motion is denied.
Alaini Mustafaa is an African American woman, who began working
for Continental on March 23, 1995. Ms. Mustafaa claims that, as
one of the only African American females in a supervisory
position, she was repeatedly subjected to harassment,
discrimination, and retaliation at Continental. On October 1,
2001, Ms. Mustafaa filed with the EEOC a Charge of
Discrimination, detailing Continental's alleged violations of Title VII of the Civil Rights Act of 1964. 42 U.S.C. 2000e, et
seq. (West 2005).
EEOC Investigator Tyler Graden headed the investigation into
Ms. Mustafaa's Charge. After reviewing documents and interviewing
witnesses, Mr. Graden issued an investigative report, which the
EEOC relied upon in deciding how to proceed with Ms. Mustafaa's
Charge. On April 28, 2004, the EEOC filed a complaint against
Continental; the case was assigned to Judge Marvin E. Aspen.
During discovery, Continental served upon the EEOC its First
Set of Interrogatories and Document Requests, including a request
for "[a]ny and all documents contained in the Plaintiff's EEOC
file concerning the individual charge of discrimination filed by
Alaini Mustafaa (Charge No. 210A20007) against Defendant, or the
investigation of said charges." Def.'s Request No. 2. The EEOC
turned over responsive materials, but refused to produce the
investigative report compiled by Mr. Graden. The EEOC argued that
the report was protected by the governmental deliberative process
privilege. Pursuant to Court Order, however, the EEOC agreed to
produce Mr. Graden for a deposition.
On May 24, 2005, Continental deposed Mr. Graden. Mr. Graden
testified that he had reviewed the investigative report in
preparation for his deposition. In addition, the EEOC's counsel
asked Mr. Graden about the method he used to compile the investigative report. Counsel for Continental argued that the
EEOC had crossed the line, waiving any claim that the
investigative report was privileged. Not surprisingly, the EEOC
disagreed. Despite attempts to resolve the dispute without the
court's involvement, the parties could not reach an accord. Judge
Aspen referred the matter to this Court for resolution.
Continental argues that the EEOC should be required to produce
its investigative report, because it is relevant to the issues
forming the basis of the litigation. Continental disputes that
the deliberative process privilege applies, and further argues
that, even if the EEOC could satisfy the prerequisites for
application of the privilege, the EEOC waived the privilege by
divulging the contents of the investigative report during Mr.
Graden's deposition, and by having Mr. Graden review the
investigative report before his deposition. The Court will
address each argument in turn.
A. The Governmental Deliberative Process Privilege
"Traditionally, government deliberations have been protected by
a variety of qualified privileges in order to promote efficient
and effective decision-making which is fueled by the free-flow of
information." In re Bank One Securities Litigation,
209 F.R.D. 418, 426 (N.D. Ill. 2002) citing United States v. Farley,
11 F.3d 1385 (7th Cir. 1993) (recognizing that the deliberative process privilege, which operated to protect
pre-decisional documents created by the Federal Trade Commission,
encouraged frank discussion of legal and policy matters). One
such privilege, the deliberative process privilege, protects the
decision-making process of government agencies in certain
circumstances. EEOC v. Sears, Roebuck & Co., 111 F.R.D. 385,
390 (N.D. Ill. 1986). Specifically, the privilege extends only to
"predecisional" governmental documents, which reveal the "give
and take of the consultative process." EEOC v. Stauffer Chemical
Co., No. 89 C 2725, 1990 WL 19967, at *1 (N.D. Ill. Feb. 27,
1990) (explaining that predecisional documents are generated
before the adoption of an agency policy or decision).
In the instant case, the EEOC's investigative report, which the
Court viewed in camera, clearly constitutes a predecisional
governmental document that is "actually . . . related to the
process by which policies are formulated." Brown v. United
States Patent and Trademark Office, 355 F. Supp.2d 940, 942
(N.D. Ill. 2005) (quoting Jordan v. Unites States Dep't of
Justice, 591 F.2d 753, 774 (D.C. Cir. 1978) (en banc)). The
report was created before the EEOC made its decision to pursue
its enforcement action against Continental, readily satisfying
the predecisional prong of the deliberative process privilege
Turning to the second prong of the privilege's test, the Court
concludes that the report was created for the purpose of assisting the EEOC in its decision regarding Ms. Mustafaa's
Charge. The investigative report reflects Mr. Graden's
impressions about the information learned during the course of
his investigation, and contains recommendations to his EEOC
superiors with respect to Ms. Mustafaa's EEOC Charge.*fn1 As
Judge Aspen stated, "[i]t is precisely these types of records
that the deliberative process privilege is designed to protect."
Brown, 355 F. Supp.2d at 942.
In addition to making this showing, the EEOC has also complied
with the formal requirements for asserting the privilege by
having its department head, EEOC Chair Cari M. Dominguez: 1) make
a knowing and formal claim of privilege; 2) submit a Declaration
stating the precise reasons for preserving the confidentiality of
the investigative report; and 3) identify and describe the
documents. See K.L v. Edgar, 964 F. Supp. 1206, 1209 (N.D. Ill.
1997). Because the EEOC has satisfied its threshold burden of
establishing that the privilege applies, Continental now has the
burden of showing a particularized need for the investigative
report. Id. In weighing Continental's need for the material against the
EEOC's need for privacy, the Court considers: 1) the relevance of
the evidence sought; 2) the availability of other evidence; 3)
the government's role in the litigation; 4) the seriousness of
the litigation and the issues involved in it; and 5) the extent
to which the disclosure would hinder frank communications within
the governmental agency. Id.
Initially, the Court concludes that, when viewing the
investigative report in its entirety, the information in the
report is clearly relevant to the primary issue of
discrimination. The Court acknowledges that "[t]he existence of
probable cause to sue is generally and in this instance not
judicially reviewable," EEOC v. Caterpillar, 409 F.3d 831, 833
(7th Cir. 2005), but the evidence unearthed by Mr. Graden and
documented in the investigative report goes to the heart of the
underlying claims of discrimination.
Nevertheless, "relevance alone is an insufficient reason for
breaching the deliberative process privilege." Farley,
11 F.3d at 1390. More important is the fact that Continental has not
shown that its need for the materials outweighs the EEOC's
interest in not disclosing the investigative report. Id. at
1389-90. The information that Continental purportedly seeks has
already been made available to Continental. In particular, the
EEOC produced the facts contained in the report to Continental when it turned over the interview notes. Because the EEOC has
produced all of the source materials to Continental, the
information Continental purportedly seeks is already available to
Continental, and Continental cannot make the requisite showing of
Requiring the EEOC to produce the investigative memorandum when
it has already produced the underlying source material would
reveal nothing more than Mr. Graden's deliberations and
assessment of the evidence. Subjecting such deliberations and
assessments to disclosure would hinder future agency
communications; courts cannot expect frank and open internal
communications if "each remark is a potential item of discovery
and front page news." Enviro Tech Int'l, Inc. v. U.S.
Environmental Protection Agency, 371 F.3d 370, 374 (7th Cir.
Because the Court concludes that Continental has not
demonstrated a particularized need for the investigative report,
the privilege applies and the Court turns to Continental's claims
B. The EEOC Did Not Waive the Privilege
Continental argues that the EEOC waived any claim that the investigative report is privileged,*fn3 because: 1) Mr.
Graden revealed the substance of the investigative report at his
deposition; and 2) Mr. Graden reviewed the report to refresh his
memory in preparation for his deposition.
Continental notes that, during Mr. Graden's deposition, the
EEOC's counsel questioned Mr. Graden about his preparation of the
investigative report. Specifically, the EEOC's counsel asked Mr.
Graden: 1) "When you did your investigative memorandum for this
case, did you put all of the facts and evidence obtained during
your investigation into the investigative memorandum?"; 2) "How
did you decide which ones to put into the investigative
memoradum?"; 3) "what process do you use to decide what to put
in?" See Graden Dep. at pp. 137-38. Citing Shell Oil Co. v.
Internal Rev. Serv., 772 F. Supp. 202, 209-10 (D. Del. 1991),
Continental argues that this prodding into the decisions Mr.
Graden made during his preparation of the investigative report
constitutes waiver. The Court disagrees.
In Shell Oil, the court found that the IRS had waived the
deliberative process privilege with respect to its draft definition of "tar sands," after an IRS employee read the
definition from a draft notice of proposed rule making at a
public meeting of both governmental and industry officials. Id.
at 206. The Shell Oil court accepted the defendant's argument
that "if an authorized disclosure is made to a non-federal party
and the disclosure is not necessary to effect the purpose of the
document, a waiver occurs." Id. "[T]he Shell Oil court was
animated by a fear of empowering agencies to selectively disclose
materials publicly." Sherman v. U.S. Dept. of Army,
244 F.3d 357, 363 n. 9 (5th Cir. 2001).
Because the EEOC has not selectively disclosed information and
then sought the shelter of privilege, Shell Oil is readily
distinguishable. In Shell Oil, the defendant sought to discover
the precise information that the government had already leaked to
selected parties ie., the draft definition of tar sands.
Conversely, the EEOC has revealed neither selected portions of
its investigative report, nor revealed the report (in its
entirety or otherwise) to select non-public individuals.
Instead of revealing the substance or specifics of the report,
Mr. Graden's deposition described, in a very broad and general
sense, the manner in which this EEOC investigative report, and
other investigative reports, are compiled, and the method
employed to determine what evidence to include/exclude from the
report. The EEOC elicited this information in an attempt to establish the existence of the deliberative process
privilege. Mr. Graden did not identify specific facts that he
included or excluded, or what commentary he included in the
If Mr. Graden had allowed other non-governmental entities to
view the report, or had selectively disseminated all or part of
the report in an attempt to advance the EEOC's case, the Court
agrees that, in accord with the analysis in Shell Oil, a waiver
would have occurred. But that is not the case; Mr. Graden did
not selectively disclose any substantive information contained in
the investigative report. Thus, the Court finds that the EEOC did
not waive the privilege when Mr. Graden answered questions
regarding the compilation of the investigative report.
Next, Continental argues that the EEOC waived the deliberative
process privilege, because Mr. Graden reviewed the investigative
report to refresh his recollection prior to his deposition.
Citing Wheeling-Pittsburgh Steel Corp. v. Underwriters Labs.,
Inc., 81 F.R.D. 8, 9 (1978), Continental notes that Federal Rule
of Evidence 612 authorizes the disclosure of privileged documents
relied upon by a witness while testifying. The EEOC seeks to
discredit Continental's analysis in a footnote, by referring the
Court to the discussion in Suss v. MSX Int'l Engineering
Services, Inc., 212 F.R.D. 159, 165 (S.D.N.Y. 2002). While the
EEOC's argument on the point is brief, the Suss court's thorough analysis of Rule 612 is
Federal Rule of Evidence 612 authorizes the disclosure of an
otherwise privileged document if it is used by a witness to
refresh his memory for the purpose of testifying.
Specifically, Rule 612 provides that:
If a witness uses a writing to refresh memory for the
purpose of testifying . . .
1) while testifying, or
2) before testifying, if the court in its discretion
determines it is necessary in the interest of
an adverse party is entitled to have the writing
produced at the hearing, to inspect it, to
cross-examine the witness thereon, and to introduce
in evidence those portions which relate to the
testimony of the witness.
Fed.R.Evid. 612. The purpose of the Rule is to allow a party to
properly cross-examine a testifying witness. Berkey Photo, Inc.
v. Eastman Kodak Co., 74 F.R.D. 613, 615 (S.D.N.Y. 1977).
Notably, disclosure of a document relied upon by a testifying
witness is not mandatory. The Advisory Committee Notes to Rule
612 state that "nothing in the Rule [should] be considered as
barring the assertion of a privilege with respect to writings
used by a witness to refresh his memory." Advsry. Comm. Notes.
Fed.R. Evid 612. "In applying Rule 612, courts must balance the
tension between the disclosure needed for effective
cross-examination and the protection against disclosure afforded
by any relevant privilege." Suss, 212 F.R.D. at 163. When a witness uses a writing while testifying, the scales
generally tip in favor of disclosure. See, e.g., Bailey v.
Meister Brau, Inc., 57 F.R.D. 11 (N.D. Ill. 1972). However,
courts have exercised their considerable discretion in deciding
whether a writing must be produced when a witness has reviewed
the document prior to testifying. Suss, 212 F.R.D. at 163. For
example, the Suss court focused on two questions 1) was the
privilege properly invoked; and 2) did some action of the party
seeking to invoke the privilege act as a waiver? in concluding
that the witness did not waive the attorney client privilege by
reviewing documents prior to his deposition. Id. at 163-64. The
court stated that "given the special protection afforded by the
attorney-client privilege, the Court finds no reason to order
disclosure." Id. at 165.
Defendant argues that Suss is readily distinguishable,
because the deliberative process challenge is not as broad as the
attorney-client privilege. True enough. But Suss provides a
framework for assessing challenges to other privileges,
explaining that the particular balancing undertaken by the court
should be tailored to the privilege asserted. Id. at 163. For
example, a court weighing whether a work-product privilege has
been waived, should assess factors at the heart of the work
product privilege such as substantial need and undue hardship.
Id. Like the work-product privilege, the deliberative process
privilege is a qualified privilege that may be overcome if a
party demonstrates sufficient need of the otherwise privileged
material. Brock v. Weiser, No. 86 C 2129, 1987 WL 12686, at *1
(N.D. Ill. June 15, 1987). The fact that Mr. Graden consulted his
own investigative report prior to his deposition does not
heighten Continental's need for the material. How Mr. Graden
prepared his report, and the method used to decide which facts to
include and which to exclude are simply not relevant to the
underlying litigation. In addition, there is no evidence that Mr.
Graden or the EEOC attempted to gain an unfair advantage by
having Mr. Graden consult the report and then refuse to disclose
it; nor does the Court see how such a result could occur even if
not intended. So, while Mr. Graden's review of the investigative
notebook may have impacted his testimony, the testimony at issue
does not involve substantive issues in this case. It involves
only the EEOC's internal decisionmaking process, which is not
relevant to this enforcement action.*fn4 See EEOC v. St.
Michael Hosp., No. CIV A 96-C-1428, 1997 WL 665757, at *2 (E.D.
Wis. Sept. 26, 1997) (finding that the employer may not litigate, as a preliminary matter, the reasonableness of the
Continental has failed to demonstrate how the interests of
justice are served by requiring the EEOC to disclose the
investigative report, simply because Mr. Graden reviewed the
report prior to his deposition. Derderian v. Polaroid Corp.,
121 F.R.D. 12, 17 (D. Mass. 1988). Therefore, the Court concludes
that it would be inappropriate to allow Continental to access the
For the reasons set forth above, the Court finds that the EEOC
has properly established that the deliberative process privilege
applies. Continental's claims of waiver are without merit.
Therefore, Defendants' Motion to Compel is Denied.
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