U.S. Equal Emp't Opportunity Comm'n v. George Wash. Univ.

• Decision Date: 05 November 2020
• Docket Number: Case No. 17-cv-1978 (CKK/GMH)
• Citation: 502 F.Supp.3d 62
• Parties: UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. The GEORGE WASHINGTON UNIVERSITY, Defendant.
• Court: U.S. District Court — District of Columbia

502 F.Supp.3d 62

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,

v.The GEORGE WASHINGTON UNIVERSITY, Defendant.

Case No. 17-cv-1978 (CKK/GMH)

United States District Court, District of Columbia.

Signed November 5, 2020

Dylan Thomas Cowart, Kate Northrup, U.S. Equal Employment Opportunity Commission Baltimore Field Office, Baltimore, MD, Melanie Marie Peterson, Equal Employment Opportunity Commission, Philadelphia, PA, Jessi Isenhart, U.S. Equal Employment Opportunity Commission Cleveland Field Office/Office of General Counsel, Cleveland, OH, for Plaintiff.

Jason Craig Schwartz, Matthew P. Sappington, Pro Hac Vice, Molly T. Senger, Wendy L. Miller, Gibson, Dunn & Crutcher, LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

G. MICHAEL HARVEY, UNITED STATES MAGISTRATE JUDGE

The Equal Employment Opportunity Commission ("Plaintiff" or the "EEOC") filed this action on behalf of Sara Williams, née Mutalib, against The George Washington University ("Defendant" or the "University") pursuant to the Equal Pay Act, 29 U.S.C. § 206(d), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. EEOC alleges that Ms. Williams, who was employed as Executive Assistant to the University's Director of Athletics, Patrick Nero, was treated less favorably—by being paid less for equal work and being denied employment opportunities and advancement—than a male comparator, Michael Aresco, who was hired as Special Assistant to Mr. Nero. The kernel of the present discovery dispute asks whether an attorney for the EEOC violated rule 26(b)(5)(B) of the Federal Rules of Civil Procedure, the protective order entered in this case (the "Protective Order"), or her ethical obligations when, after Defendant informed her that the EEOC was in possession of two email chains that allegedly reflected communications among University personnel seeking legal advice from the University's General Counsel's office, that EEOC attorney nevertheless reviewed those documents. While there is a fairly straightforward answer to that question—yes, she, at least, violated Rule 26(b)(5)(B) —it has sprouted another dispute over whether the documents counsel reviewed were, indeed, privileged and whether the University has waived privilege. This Memorandum Opinion and Order addresses all three issues.

For the reasons that follow, the University's motion, which is styled a "Motion for an Order Requiring the EEOC to Return or Destroy the University's Privileged Documents," is granted in part and denied in part. Furthermore, the Court finds that many of the communications over which the University claims attorney-client privilege are protected and that the University has not waived privilege.¹

I. BACKGROUND

The seeds of this dispute were sown months ago, when in November 2019, without authorization from the University, Ms. Williams provided the EEOC with certain work-related emails from her University email account that presumably supported the allegations in the Complaint.² ECF No. 58-5 at 2. In December 2019, as they were hashing out certain discovery disputes, the University asked the EEOC to confirm that it had produced all responsive, discoverable emails collected from Ms. Williams’ University email account. ECF No. 47-5 at 27–28; ECF No. 58-9 at 3, 7. The EEOC resisted providing such confirmation. See id. That issue was eventually brought before Judge Kollar-Kotelly as one of a series of discovery disputes that was then referred to the undersigned. ECF No. 38 at 27–36 (Transcript of February 19, 2020 Hearing before Judge Kollar-Kotelly); ECF No. 39 (Referral Order dated February 25, 2020); Transcript of March 12, 2020 Hearing at 114–19 ("Mar. 12, 2020 Tr.") (on file with the Chambers of the undersigned). The undersigned held a hearing on the disputes on March 12, 2020, and the next day issued a Minute Order requiring the EEOC to produce those emails (or supplement its discovery responses to state its basis for withholding any such emails) by March 20, 2020 (the "March 13 Minute Order"). Minute Order dated March 13, 2020.

On March 20, 2020, the EEOC made its supplemental production of documents and "certifie[d] that it ha[d] produced all non-privileged, responsive documents in its possession, custody, or control." ECF No. 61-19 at 2. To allow Defendant time to designate any of the emails "as subject to the Protective Order" entered in this case near the beginning of discovery, the EEOC stated it would "treat the entirety of [the supplemental] production of emails from Ms. Williams’ [University] account as though it were subject to the Protective Order for the next 30 days." Id. That protective order outlines procedures to follow when a party seeks to mark appropriate materials as "confidential," as well as when a party who has produced documents discovers "that certain inadvertently produced material is subject to a claim of privilege or other protection." ECF No. 33 at 7, 14.

On May 22, 2020, the University sent counsel for the EEOC a letter stating that two email chains that the EEOC had produced as part of its March 20, 2020 production contained material protected by attorney-client privilege. ECF No. 58-2 at 3. It requested that the EEOC (1) "explain in writing its willful and prolonged failure to bring [those] documents to the University's attention," (2) "identify all persons who reviewed the documents and any others with the same or similar content," (3) "clarify how long it has been in possession of [those] documents," and (4) "immediately sequester and destroy all copies of [those] documents ..., as well as all notes concerning [the] documents, and confirm in writing that this has been done." Id. at 3–4. After the EEOC received that letter, counsel for the agency "reviewed the headers and glanced at or skimmed portions" of the identified emails and "determined that they are not privileged."³ ECF No. 61-30, ¶ 4; ECF No. 58-7 at 2; ECF No. 57 at 12. After briefly reviewing the emails, counsel for the EEOC marked them with a note reading, "Do not look at." ECF No. 57 at 14. The agency had not previously reviewed the emails. ECF No. 58-5 at 2.

The EEOC did not provide a substantive response in writing to the University's May 22, 2020 letter, or to its follow-up emails. ECF Nos. 58-3, 58-4; ECF No. 57 at 21. The record reflects that the parties had a phone conference on July 14, 2020, but were unable to resolve the matter. ECF No. 58-4 at 2; ECF No. 58-5 at 2. Consequently, they brought it before Judge Kollar-Kotelly on July 21, 2020. ECF Nos. 58-6, 58-7. The University characterized the dispute as involving "the EEOC's refusal to sequester or destroy the University's privileged documents" that were produced as required by the March 13 Minute Order; the EEOC asserted that the issue "concerns whether two emails EEOC produced on March 20, 2020," pursuant to that Order "contain any of Defendant's privileged information, and, if so, what, if any, redactions need to be made," further arguing that, even if the documents are attorney-client communications subject to privilege, "Defendant long ago waived privilege."⁴ ECF No. 58-6 at 2; ECF No. 58-7 at 2. The next day, Judge Kollar-Kotelly referred the dispute to the undersigned in light of the fact that the "dispute arises from documents produced pursuant to" the March 13 Minute Order.⁵ ECF No. 55 at 1.

In an order dated July 23, 2020, the undersigned noted that "[b]oth parties agree[d]" that it was appropriate to submit the two relevant documents for in camera review and directed the University to lodge them with Chambers. Minute Order dated July 23, 2020. The undersigned held a hearing on the dispute on July 28, 2020, and thereafter ordered the parties to submit further briefing (ECF Nos. 56–57), which was completed on September 14, 2020. The University argues that Melanie M. Peterson, Senior Trial Attorney with the EEOC and an attorney of record in this case, violated Rule 26(b)(5)(B), the Protective Order, and the D.C. Rules of Professional Conduct by reviewing the emails after having been put on notice that the University considered them privileged. ECF No. 58 at 15–21. It further contends that the two email chains at issue—one of which spans July 15, 2016, to July 18, 2016 (identified by Bates numbers EEOC0001110–EEOC001112) (the "July 2016 Email Chain"), and one of which spans July 19, 2016, to September 26, 2016 (identified by Bates numbers EEOC0001075–EEOC0001086) (the "July–September 2016 Email Chain")—are protected in part by attorney-client privilege, asserting that they "contain confidential communications between [Ms. Williams] and University Associate General Counsel Stephanie Baldwin" that "were made for the purpose of securing legal advice." ECF No. 58 at 12–15. Finally, it asserts that it did not waive privilege over these documents pursuant to Rule 502(b) of the Federal Rules of Evidence or by selectively disclosing or putting privileged materials at issue in this case. Id. at 22–26; ECF No. 65 at 8–15. The University seeks an order compelling the EEOC to immediately destroy or return the July 2016 Email Chain and the July–September 2016 Email Chain, prohibiting the EEOC from using those documents in this case, requiring the EEOC to submit a sworn statement providing details of its review of those documents, and imposing sanctions on the EEOC, including payment of the attorney's fees and costs the University has incurred in connection with this dispute. ECF No. 58 at 26–27.

The EEOC counters that the University has not submitted sufficient proof to establish that the two email chains are protected attorney-client communications. ECF No. 64 at 29–33. It next argues that the University waived any potential privilege by asserting a defense that argues the jobs of Ms. Williams and Mr. Aresco were not substantially similar in part because only Mr. Aresco performed substantive work on legal issues, which places the allegedly privileged material at issue; by selectively...