The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
Presently before the Court are the following:
* MOTION TO QUASH NOTICE OF RULE 30(b)(6) DEPOSITION, with brief in support, filed by Plaintiff Equal Employment Opportunity Commission (Document Nos. 32 and 33);
* MOTION FOR PROTECTIVE ORDER, with brief in support, filed by Plaintiff Equal Employment Opportunity Commission (Document Nos. 34 and 35);
* The BRIEF IN OPPOSITION TO PLAINTIFF EEOCS MOTION TO QUASH NOTICE OF RULE 30(b)(6) DEPOSITION AND MOTION FOR PROTECTIVE ORDER, filed by Defendants, LifeCare Management Services, LLC and LifeCare Hospitals of Pittsburgh, Inc. (Document No. 41); and
* The MOTION TO STRIKE EXHIBITS AND FOR SANCTIONS filed by Defendants, LifeCare Management Services, LLC and LifeCare Hospitals of Pittsburgh, Inc. (Document No. 41) and the MEMORANDUM IN OPPOSITION filed by Plaintiff Equal Employment Opportunity Commission (Document No. 42).
The Motions will be addressed seriatim.
A. Motion to Quash / Motion for Protective Order On February 19, 2009, Defendants served upon the EEOC a Notice of Rule 30(b)(6)
Deposition and noticed the deposition of Paul Southworth, the EEOC investigator who investigated the December 2007 Charge of Discrimination filed by Diana Altieri-Hand. The depositions are scheduled to begin on Tuesday, April 21, 2009.
On March 5, 2009, the EEOC filed the instant Motion to Quash Notice of Rule 30(b)(6) Deposition and Motion for Protective Order (collectively referred to as the "Motions").*fn1 The EEOC's primary argument in support of its position to quash the Rule 30(b)(6) deposition is that Defendants are not entitled to conduct the depositions of a representative of the EEOC because any information this undisclosed representative may have is privileged. The EEOC argues that to the extent Defendants may obtain testimony about facts which the EEOC discovered during its investigation of the Charge, "Defendants may do so through at (sic) the deposition of EEOC Investigator Paul Southworth. Thus, . . . , Plaintiff EEOC respectfully requests that this Court grant its Motion to Quash the Notice of Rule 30(b)(6) Deposition of an EEOC designee." (Doc. 33 at 16.)
In its Motion for a Protective Order, the EEOC requests that the Court "enter an Order that no EEOC employee shall be compelled to give deposition testimony regarding any matter other than facts which were gleaned by the EEOC during the investigation of the Charge." (Doc. 35 at 15.) Additionally, the EEOC states that while it "prefers not to subject its investigators to the time imposition of litigation depositions, it will produce Mr. Southworth, but will limit his testimony to inquiries about facts which were discovered during the investigation of the Charge." (Doc. 35 at 4.)
The EEOC contends that the information sought by the Rule 30(b)(6) Notice may be categorized into three areas of discovery: (i) facts obtained by the EEOC during its investigation of the Charge underlying this litigation; (ii) EEOC's internal processing and/or analysis related to the cause determination; and (iii) the EEOC's decision-making process surrounding its administrative conciliation of the Charge. (Doc. 33 at 3). The Notice of the Deposition of Paul Southworth did not specify the intended areas of inquiry; however, "the EEOC anticipates that the Defendant (sic) will attempt to question Mr. Southworth about the same matters listed in the Rule 30(b)(6) Notice." Not surprisingly, Defendants strenuously object to the EEOC's characterization of its intended areas of requested discovery, and argue that they are seeking only "discoverable facts relating to the EEOC's underlying investigation . . . ." (Doc. 41 at 2.)
After reviewing the Notice of the Deposition, the Court agrees with Defendants and finds that Defendants are seeking facts obtained by the EEOC during its underlying investigation, not any information related to the EEOC's opinions, analysis, or legal theories with respect to the Charge. (See Defs' Rule 30(b)(6) Notice of Deposition, Docket #33-2, Exh. A.)
Moreover, the Court finds and rules that the EEOC cannot seek protection from Defendants' 30(b)(6) Notice of Deposition by unilaterally declaring all information known to the EEOC as privileged, specifically, the EEOC contends that the inquiries to the Rule 30(b)(6) representative will invade the "deliberative process privilege." First, unless and until Defendants actually ask a question at the deposition that intrudes upon the deliberative process privilege or any other alleged applicable privilege, the Court finds that the EEOC's objections are premature. Furthermore, it should be noted that the deliberative process privilege only protects the ...