Robinson v. Cnty. of San Joaquin
| Decision Date | 14 May 2014 |
| Docket Number | No. 2:12-cv-2783 MCE GGH PS,2:12-cv-2783 MCE GGH PS |
| Court | U.S. District Court — Eastern District of California |
| Parties | ANTHONY W. ROBINSON, Plaintiff, v. COUNTY OF SAN JOAQUIN, Defendant. |
Previously pending on this court's law and motion calendar for April 24, 2014 was plaintiff's motion to compel non-party EEOC's compliance with subpoenas, filed March 11, 2014.1 Defendant filed an opposition on March 14, 2014, the EEOC filed a late permitted opposition on April 2, 2014, and plaintiff filed responses on March 21 and April 7, 2014 to court orders filed March 19 and April 4, 2014 regarding the subpoenas. Plaintiff appeared in pro se. The County was represented by Velma Lim. Sirithon Thanasombat appeared telephonically on behalf of non-party EEOC. After hearing oral argument and reviewing the pertinent papers, the court now issues the following order.
Plaintiff's motion seeks to compel the EEOC's compliance with subpoenas issued December 4, 2013, (ECF No. 60-2 at 18), and February 14, 2014, (ECF No. 60-2 at 33). Thesubpoenas seek "recorded questions and answers of witnesses during EEOC Fact Finding Conference held June 20, 2012 for EEOC complaints 550-2010-00655 and 550-2011-01730." Both subpoenas make the identical request.2 The EEOC represents that it produced notes from this fact finding conference and produced them on December 18, 2013,3 subject to redactions based on certain privileges, including the deliberative process privilege, and sovereign immunity. Other objections were: overbroad, vague, ambiguous and uncertain, and that the subpoena did not name the proper agency official and was not served on that individual. In response to the February 14, 2014 subpoena, the EEOC responded that it had already produced all non-privileged documents.
Plaintiff's motion seeks to expand the terms of the original subpoena by seeking a record of the fact finding conference in his current request for written documentation and/or transcripts of the fact finding conference; however, plaintiff may not broaden the parameters of the original subpoena through a motion to compel. Furthermore, the EEOC definitively states that there was no transcript of the conference. (ECF No. 60-1 at 5; Baldonado Dec., ¶ 11, ECF No. 73.) Therefore, this order is limited to addressing the documents responsive to plaintiff's subpoena, recorded questions and answers of witnesses at the fact finding conference.
The EEOC opposes the motion, contending that it has responded promptly and completely by producing documents responsive to the subpoenas, subject to privileges, but that it alsoproduced "any and all written documentation" from the conference, subject to privileges, which goes beyond the request of the subpoena. Furthermore, the EEOC argues that contrary to plaintiff's claims, it did not simply provide him with a summation of the June 20th conference by defense counsel Gutierrez, but provided non-privileged notes taken by the EEOC during the conference.
The EEOC contends that it is only subject to suit for disclosure of documents under the FOIA, exclusively. It claims it has not waived its immunity in any other aspect, and so informed plaintiff when it produced the documents voluntarily. Federal subpoenas issued to non-party federal officials to produce official records or to testify are fully enforceable despite any claim of immunity. Exxon Shipping Co. v. United States Dep't of Interior, 34 F.3d 774, 778 (9th Cir. 1994). The Ninth Circuit Court of Appeals limited the statute which permits the head of a federal agency to promulgate regulations governing the use of its records by stating that 5 U.S.C. § 3015 "does not, by its own force, authorize federal agency heads to withhold evidence sought under a valid federal court subpoena." Id. at 777. Rather, the Federal Rules of Civil Procedure apply in a federal case where a subpoena is issued against a federal agency. Id. See 5 U.S.C. § 301 ().
The Exxon court held that the Department of the Interior could not adopt regulations withholding information or shielding government employees from a valid subpoena. 34 F.3d at 776-78. It reasoned that such a case was distinguishable from one involving a state court attempting to subpoena federal officials. The doctrine of sovereign immunity prevents a statecourt from compelling discovery from a federal employee, because Id. at 778. In fact, the Exxon court specifically found that Touhy6 regulations do not authorize "federal agencies to refuse to comply with proper discovery requests." Id. at 780. The court specifically held: Id. "[T]he regulations simply set forth administrative procedures to be followed when demands for information are received." Kwan Fai Mak v. F.B.I., 252 F.3d 1089, 1092 (9th Cir. 2001).
In a similar case, the Sixth Circuit held that the Federal Reserve regulations could not be enforced because they allowed that agency to "effectively override the application of the Federal Rules of Civil Procedure and, in essence, divest a court of jurisdiction over discovery...." In re Bankers Trust Co., 61 F.3d 465, 470 (6th Cir. 1995). To do so, an "enabling statute must be more specific than a general grant of authority" as found in the regulation at issue there which required a subpoenaed party to continually decline to disclose information or testimony. Id.
Based on these cases, the EEOC may not claim sovereign immunity. This federal case is governed by the Federal Rules of Civil Procedure, and the EEOC is a non-party federal agency whose federal officials have possession of official records requested by a federal subpoena, and is therefore governed by those federal rules.
Executive privileges asserted by a government agency have procedural prerequisites:
There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actualpersonal consideration by that officer. The court itself must determine whether the circumstances are appropriate for a claim of privilege ...
United States v. O'Neill, 619 F.2d 222, 225 (3rd Cir. 1980) (quoting United States v. Reynolds, 345 U.S. 1, 7-8, 73 S. Ct. 528, 97 L.Ed. 727 (1953). These requirements have been applied to all forms of "executive" privilege. Yang v. Reno, 157 F.R.D. 625, 632 (1994); Martin v. Albany Business Journal, Inc., 780 F.Supp. 927, 932 (N.D.N.Y.1992). Courts have allowed the claim to be made by a person in an executive policy position. See Reynolds, 345 U.S. at 8 n. 20, 73 S. Ct. at 532 n. 20 (). See also Scott Paper Co., 943 F.Supp. 501 (E.D.Pa.1996); Yang, 157 F.R.D. at 632-34 & n. 4 (1994) (); Mobil Oil Corp. v. Department of Energy, 102 F.R.D. 1, 6 (N.D.N.Y.1983) (). Some jurisdictions do not allow the agency head to delegate the authority to claim the privilege. Scott, 943 F.Supp. at 502. Other jurisdictions which allow the authority to be delegated require the delegation to be accompanied by detailed guidelines regarding the use of the privilege. Id. at 503.
The official making the declaration of privilege must: "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." E.E.O.C. v. Continental Airlines, Inc., 395 F.Supp.2d 738, 741 (N.D. Ill. 2005).
Of critical importance, "the information for which the privilege is claimed must be specified, with an explanation why it properly falls within the scope of the privilege." In re Sealed Case, 856 F.2d 268, 271 (D.C.Cir.1988) (law enforcement privilege) (emphasis added). An official cannot invoke a privilege without personally considering the material for which the privilege is sought. Yang, 157 F.R.D. at 634. In the instant case, the EEOC has produced adeclaration by EEOC Deputy District Director Michael Connolly. Although Connolly is a proper agency head, his declaration makes no statements in support of the EEOC's privilege claims. His declaration addresses only the nature of the EEO charges filed by plaintiff, what documents the EEOC produced in response to his request for documents, that some documents were withheld or redacted on the basis of exemptions to the FOIA, and that no transcript exists from the June 20, 2012 fact-finding conference. (Connolly Dec., ECF No. 60-3 at 1-3.)
This declaration does not contain the specifics required of an agency head official, most importantly the nature of the policy invoked that would warrant protection of the documents at issue, and why the material is qualified under this privilege. One must use a rule of reason in...
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