E.E.O.C. v. Burlington Northern

• Citation: 615 F.Supp.2d 717
• Decision Date: 19 May 2009
• Docket Number: No. 07-2450 Ma/P.,07-2450 Ma/P.
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. BURLINGTON NORTHERN & Santa Fe Railway Co., Defendant.
• Court: U.S. District Court — Western District of Tennessee

615 F.Supp.2d 717

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. BURLINGTON NORTHERN & Santa Fe Railway Co., Defendant.

No. 07-2450 Ma/P.

United States District Court, W.D. Tennessee, Western Division.

May 19, 2009.

COPYRIGHT MATERIAL OMITTED

Deidre Smith, Faye A. Williams, Steven W. Dills, Equal Employment Opportunity Commission, Memphis, TN, for Plaintiff.

Bryan P. Neal, Stephen F. Fink, Thompson & Knight, Dallas, TX, Lawrence M. Stroik, Burlington Northern Railroad Company, Fort Worth, TX, Ralph T. Gibson, Bateman Gibson & Childers, Memphis, TN, for Defendant.

ORDER GRANTING PLAINTIFF'S MOTION FOR PROTECTIVE ORDER

TU M. PHAM, United States Magistrate Judge.

Before the court by order of reference is plaintiff Equal Employment Opportunity Commission's ("EEOC") Motion for Protective Order. (D.E. 28.) In this employment discrimination case brought under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12117(a), the EEOC alleges that defendant Burlington Northern & Santa Fe Railway Company ("BNSF") engaged in discrimination in its employment practices when it failed to return Emerson Payne to his position as a conductor or "trainman" based on his disability, a below-the-knee amputation. Presently at issue is a Rule 30(b)(6) deposition notice served upon the EEOC by BNSF. In its motion, the EEOC seeks a protective order from the court pursuant to Federal Rule of Civil Procedure 26(c) on the grounds that with respect to deposition topics 6, 7, and 10 through 15, BNSF seeks to inquire into matters protected by the deliberative process privilege.¹ The EEOC indicates that it is willing to go forward with the deposition, but requests that the court enter a protective order restricting the deposition questions to relevant, non-privileged facts that the EEOC uncovered during its investigation of the case. In response, BNSF argues that the EEOC waived its deliberative process privilege when it decided to file the complaint and make itself a party to this litigation.² For the following reasons, the court concludes that the EEOC's role as a plaintiff does not, by itself, constitute a waiver of the deliberative process privilege.

The deliberative process privilege protects from discovery "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); see also Dep't of Interior & Bureau of Indian Affairs v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001). This privilege protects internal communications of a governmental agency when they are deliberative in nature, but not when they are purely factual. Sears, 421 U.S. at 149, 95 S.Ct. 1504. The policy rationale behind this privilege is to promote effective governmental decision making by maintaining a free and open exchange of ideas among government officials. Missouri ex rel Shorr v. United States Corps of Eng'rs., 147 F.3d 708, 710 (8th Cir.1998). "The deliberative process privilege rests on the obvious, realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance `the quality of agency decisions' ... by protecting open and frank discussion among those who make them within the government." Klamath, 532 U.S. at 9, 121 S.Ct. 1060. Therefore, "the key issue in applying this exception is whether disclosure of the materials would `expose an agency's decisionmaking process in such a way as to discourage discussion within the agency and thereby undermine the agency's ability to perform its functions.'" Rugiero v. U.S. Dep't of Justice, 257 F.3d 534, 550 (6th Cir.2001) (quoting Schell v. U.S. Dep't of Health & Human Servs., 843 F.2d 933, 940 (6th Cir.1988)); see also EEOC v. Texas Hydraulics, Inc., 246 F.R.D. 548, 551 (E.D.Tenn.2007).

"Factual materials are generally not privileged unless they are inextricably intertwined with policy-making processes.... Non-factual materials that express opinions or recommendations, on the other hand, are clearly protected." Trentadue v. Integrity Committee, 501 F.3d 1215, 1227 (10th Cir.2007) (citing Nat'l Wildlife Fed'n v. U.S. Forest Serv., 861 F.2d 1114, 1119 (9th Cir.1988); Sears, 421 U.S. at 150, 95 S.Ct. 1504). The privilege "is to be construed as narrowly as consistent with efficient Government operations." EEOC v. Albertson's LLC, No. 06-cv-10273-CMBNB, 2008 WL 4877046, at *1 (D.Colo. Nov. 12, 2008) (citing Trentadue, 501 F.3d at 1226-28). As described by one court:

"To be protected by the deliberative process privilege a government document must be both predecisional and deliberative. A document is "predecisional" when it is "received by the decisionmaker on the subject of the decision prior to the time the decision is made" and "deliberative" if it is "the result of a consultative process." "Although this privilege covers recommendations, draft documents, proposals, suggestions, and other subjective documents that reflect the opinions of the writer rather than the policy of the agency, the key issue in applying this exception is whether disclosure of the materials would expose an agency's decisionmaking process in such a way as to discourage discussion within the agency and thereby undermine the agency's ability to perform its functions."

"The ultimate purpose of this longrecognized privilege is to prevent injury to the quality of agency decisions. The privilege "does not protect factual information, even if such information is contained in an otherwise protectable document as long as the information is severable." The privilege also does not protect communications occurring after an agency decision is made.

Texas Hydraulics, 246 F.R.D. at 551 (internal citations and quotations omitted); see also Redland Soccer Club, Inc. v. Dep't of Army, 55 F.3d 827, 854 (3d Cir.1995); In re Franklin Nat'l Bank Securities Litig., 478 F.Supp. 577, 583 (E.D.N.Y.1979).

This privilege is not absolute. Redland Soccer Club, 55 F.3d at 854. Once the government shows that the deliberative process privilege applies, the party seeking discovery must show that its need for the information outweighs the government's interest. In balancing these competing interests, the court should consider several factors, including (1) the relevance of the evidence sought to be protected; (2) the availability of other evidence; (3) the seriousness of the litigation and the issues involved; (4) the role of the government in the litigation; and (5) the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable. Id.; see also Albertson's, 2008 WL 4877046, at *5; Texas Hydraulics, 246 F.R.D. at 552.

The EEOC and BNSF have cited several cases in support of their positions regarding waiver of the deliberative process privilege when the EEOC is a plaintiff. This court has reviewed these cases and agrees with the courts that have declined to find a waiver of the privilege based solely on the EEOC's status as a plaintiff. See Allen v. Hearst Corp., Nos. WN-90-35, WN-90-3012, 1991 WL 323020, at *1-2 (D.Md. Aug. 16, 1991) (indicating that the court would "respectfully disagree with a conclusion that the EEOC ... waives its deliberative process merely by becoming a plaintiff"); see also EEOC v. Midwest Division—RMC, LLC, No. 04-00883-CV-W-REL, at 5 (W.D.Mo. May 31, 2006) (D.E. 55-3, Ex. 1) (stating that the EEOC "did not waive the deliberative process...