Hunton Employment & Labor Law Perspectives : Employment Lawyers & Attorneys : Hunton & Williams Law Firm : Labor Law Legislative Updates

The EEOC’s Regional Attorney’s Manual states that “[t]he United States Government may withhold evidence in litigation in any of the following circumstances: (1) where a statute makes certain documents or information confidential; (2) where a privilege or objection is available to any other litigant under the Federal Rules of Civil Procedure (e.g., relevance, undue burden, attorney-client privilege); or (3) where a special privilege exists unique to the government (e.g., informer privilege, deliberative process privilege). The EEOC typically asserts the deliberative process privilege in litigation in order to protect the confidentiality of internal, deliberative material, such as documents containing the analyses, opinions, or recommendations of enforcement unit staff, and attorney memoranda containing analysis or recommendations.”

The deliberative process privilege protects the decision making process of government agencies.  To be protected, information must be “predecisional” (that is, information prepared to assist an agency decisionmaker in reaching a decision) and “deliberative.” Predecisional information is part of the deliberative process if its disclosure would expose the agency’s decisionmaking process in such a way as to discourage candid discussion within the agency. Purely factual material, however, generally is not considered deliberative. 

Several recent decisions have addressed the circumstances in which an employer is permitted to depose an EEOC investigator. For instance, in Little v. Auburn University, No. 3:08cv373, 2010 WL 582083 (M.D. Al. Feb. 17, 2010), the district court determined that a deposition should be permitted where the employer sought only to clarify factual ambiguities in the EEOC’s investigative file. The court found that such factual inquiry would not be covered by the deliberative process privilege. A different district court, however, recently granted the EEOC’s motion to quash a subpoena where the employer sought the deposition “for purposes of clarification and interpretation” of the EEOC’s determination and to “understand the factual basis for the EEOC’s determination.”  EEOC v. Pinal County, 714 F. Supp. 2d 1073 (S.D. Cal. 2010). The court noted that whenever revealing facts would be tantamount to revealing the analysis of those facts, the deliberative process applies. Unlike Little, where the employer sought clarification of factual information contained in the investigative file, the county sought clarification and interpretation of the determination letter itself, which would require revealing information about the agency’s deliberative process. The court determined that to ask an EEOC representative “to even set forth the selected facts which constitute the factual basis of the probable cause finding would infringe on the deliberative process privilege as it would reveal the EEOC’s evaluation and analysis of the extensive factual information gathered by the agency.” 

Employers seeking to depose an agency investigator should be careful to frame their arguments in terms that will not infringe upon the deliberative process privilege and should be aware courts could construe purely factual requests as infringing on that privilege.

Mohawk stemmed from a lawsuit filed by Norman Carpenter, who alleged that Mohawk unlawfully terminated him after he complained to the company’s human resources department that the company was employing undocumented workers.  When Mr. Carpenter submitted his complaint, Mohawk was defending a class-action racketeering lawsuit, which alleged that the company had conspired to drive down the wages of its legal employees by knowingly hiring undocumented workers.  When the company received Mr. Carpenter’s complaint, it directed him to meet with its outside counsel in the racketeering action.  According to Mr. Carpenter, during this meeting, outside counsel pressured him to recant his statements.  When he refused to do so, the company terminated him. 

The class-action plaintiffs sought an evidentiary hearing in their case to explore Mr. Carpenter’s allegations.  Mohawk responded to this motion, in relevant part, by asserting that Mr. Carpenter had been interviewed by outside counsel, and his allegations were not substantiated.  Mr. Carpenter filed a motion in his own case seeking to compel Mohawk to produce information concerning his meeting with outside counsel and the decision to terminate his employment.  Mohawk contended that the information Mr. Carpenter sought was protected from disclosure by the attorney-client privilege.  The district court agreed but concluded that Mohawk had waived the privilege through its representations in the class-action lawsuit.  The court stayed its ruling, however, pending an appeal by Mohawk. 

Mohawk filed a notice of appeal and a petition for a writ of mandamus in the Eleventh Circuit.  The Eleventh Circuit dismissed Mohawk’s appeal for lack of jurisdiction concluding that since the district court’s order could be addressed adequately on appeal from a final judgment, it was not an immediately appealable collateral order.  The court also denied Mohawk’s mandamus petition finding “‘no clear usurpation of power or abuse of discretion’” by the district court. 

The Supreme Court affirmed.  Noting that “the decisive consideration is whether delaying review until the entry of final judgment ‘would imperil a substantial public interest’ or ‘some particular value of a high order . . . ,’” the Court concluded that while immediate appeal of disclosure orders implicating the attorney-client privilege posed little risk of harm to litigants,  the “likely institutional costs” and potential burden such appeals could place on appellate courts.

Other considerations also guided the Court’s decision.  First, the Court noted that  appellate courts can vacate judgments and remand cases for new trial that exclude the privileged information and its fruit.  Second, because counsel and client “must account for the possibility that they will later be required by law to disclose their communications for a variety of reasons . . . ,” there was little risk that requiring litigants to wait until a final judgment issued in a case would “chill” frank discussions between counsel and clients.  Third, litigants “confronted with a particularly injurious or novel privilege ruling” have a variety of options available.  They can ask the district court to certify and the appellate court to accept an interlocutory appeal; follow Mohawk’s unsuccessful route and petition the courts of appeal for a writ of mandamus; ignore the disclosure order, risk sanctions and obtain post-judgment review of the sanction order; and ignore the disclosure order and risk a contempt order, which can be appealed directly.  Fourth, the Court noted that its holding was supported by recent legislation “designating rulemaking, ‘not expansion by court decision,’ as the preferred means for determining whether and when prejudgment orders should be immediately appealable.”  The Court reasoned that because the rule making process draws on the “collective experience of the bench and bar,” expansion of the avenues of appeal for disclosure rulings involving the attorney-client privilege must be undertaken through this process.