The opinion of the court was delivered by: Arthur J. Schwab United States District Court Judge
A. Summary of Procedural History
This miscellaneous action has a long and varied procedural history dating back to March 19, 2009, when Petitioner/Applicant, the Equal Employment Opportunity Commission (hereinafter "EEOC" or "Applicant"), filed an action for enforcement of its Administrative Subpoena, against third-party (non-party) respondent, Kronos Incorporated (hereinafter "Kronos" or "Respondent"). Although the texts of the original Subpoenas*fn1 will be outlined below, the general nature of the Subpoenas related to the EEOC‟s investigation of potential disability and racial discrimination in connection with Respondent‟s creation and marketing of a Personality Assessment Instrument (hereinafter "Assessment") that was administered by the Kroger Company to job applicants, including job applicant Vicky Sandy, on whose behalf a charge was filed and entitled Sandy v. Kroger Food Stores, Charge No. 533-2007-01236.
This miscellaneous action was assigned to this Court pursuant to its duty to handle all miscellaneous cases during the two week period in which this action was commenced. Applicant, EEOC, initially filed a motion for order to show cause why an Order should not issue directing Respondent, Kronos to comply with the Subpoena and to cooperate with the EEOC in discussing the form of data production and logistics prior to production.
Respondent Kronos objected to the enforcement of said Subpoena on the basis that it "grossly overstepp[ed] the wide, but carefully crafted boundaries Congress placed on EEOC‟s investigative authority." Doc. No. 11 at 1. After extensive briefing, on June 1, 2009, this Court entered an Order granting in part and denying in part the EEOC‟s request to enforce its Subpoena, and "redrafted" the original Subpoena to include certain limitations as to scope, time, and geography of the information requested. Doc. No. 16. It is important to note, however, that while the Court denied any request beyond the scope of the "redrafted" Subpoena, the Court was careful to word that denial to be without prejudice for the EEOC to re-apply, after the conclusion of discovery, for any additional specific documents. Id. at 3.
The Court also ordered the parties to enter into an appropriate Confidentiality Order to protect Kronos‟ trade secrets or confidential information and the personal information of persons taking the Assessment. Doc. No. 16 at 4. When the parties failed to agree on the necessity and/or language of a Confidentiality Order, on July 22, 2009, the Court entered an Order (with some handwritten modifications/additions) adopting Kronos‟ proposed Confidentiality Order. Doc. No. 28.
Instead of either conducting said discovery and re-petitioning the Court for further information or filing any motion for reconsideration, on July 28, 2009, the EEOC filed a notice of appeal before the United States Court of Appeals for the Third Circuit of this Court‟s rulings. On September 9, 2010, this Court received the Judgment of the United States Court of Appeals for the Third Circuit, wherein the Order of this Court regarding compliance with the Subpoena (doc. no. 16) was affirmed in part and reversed in part, and the Confidentiality Order entered by this Court was vacated and remanded for further proceedings (doc. no. 28). Doc. No. 31. This Court received the mandate of the United States Court of Appeals for the Third Circuit on November 9, 2010 (along with the Opinion of the Court of Appeals). Doc. No. 32.
The specifics of the Opinion by the Court of Appeals will be detailed below, but in general, the Court of Appeals reversed this Court‟s "redrafted" Subpoena Order to the extent that this Court set any boundaries as to scope, time, and geography as to the claims brought pursuant to the ADA. The Court of Appeals, however, affirmed this Court‟s ruling to the extent that EEOC sought information regarding racial discrimination. Essentially, the Court of Appeals determined that the Subpoena at issue (Subpoena Two) should have been enforced as written (with certain caveats). Upon remand, the Court of Appeals also directed this Court to apply a good cause balancing test on the necessity and/or terms of a Confidentiality Order and gave further instructions, which are well-taken by this Court.
On November 26, 2010, Respondent filed a Motion for Hearing, and on November 29, 2010, this Court entered an Order requiring the parties to meet and confer and file a status report by December 16, 2010, setting forth the areas of agreement and disagreement (if any) so as to narrow the issues before this Court. The parties thereafter filed a joint status report (doc. no. 37) stating that they were unable to agree on either the appropriateness and/or the terms of a Confidentiality Order or the issue of Subpoena compliance.
In an effort to fully implement the directives of the Court of Appeals, and because the filings of the EEOC lacked specificity as to what items it requests at this time, the Court ordered further briefing on the subject, and proposed Orders of Court. After further briefing, on March 7, 2011, the Court ordered the parties to file a Joint Status Report on the status of the proceedings related to the underlying charge of discrimination in Sandy v. Kroger Food Stores, Charge No. 533-2007-01236. On March 14, 2011, the parties filed a Status Report setting forth that the investigation of the EEOC remains open. The EEOC stated, "after the initial charge was filed and some initial investigation, EEOC‟s investigation has been awaiting disposition or resolution of the instant subpoena enforcement action, brought by EEOC against Kronos Incorporated ("Kronos"). Doc. No. 49. The matter is now ripe for resolution.
On July 3, 2007, Vicky Sandy, who is a Caucasian woman with a hearing and speech impairment, filed a charge of disability discrimination against Kroger Food Stores ("Kroger" or "The Kroger Company") under the Americans with Disabilities Act ("ADA"). The charge, titled Sandy v. Kroger Food Stores, Charge No. 533-2007-01236, alleges that Sandy was subjected to discrimination on the basis of disability when Kroger failed to hire her for the position of cashier/bagger in Clarksburg, West Virginia, because of her hearing/speech impairment.
According to the EEOC, when applicants are interviewed for hire, Kroger administers a Personality Assessment Test ("Assessment"), which is created by Kronos. The Assessment claims to "measure the human traits that underlie strong service orientation and interpersonal skills such as: Controlling impatience; Showing respect; Listening attentively; Work well on a team; [and] Being sensitive to others‟ feelings." Doc. No. 2 at 3 (other citations omitted). The EEOC alleges that the test results for Sandy indicated that she would not be a good choice for the position of cashier/bagger because she failed the "communications" section of the Assessment (her score on the Assessment was 40%).
According to Kroger‟s "position statement" in response to Sandy‟s charge, the store manager, Bob Bowers, interviewed Sandy for the open position and determined that he "had difficulty in understanding [Sandy‟s] verbal responses to questions" and found her responses to be "garbled and at times inaudible and unintelligible." Doc. No. 1-5 at 3. Bowers allegedly discussed Sandy‟s low score on the Assessment and her lack of job experience with her. Id.
On January 16, 2008, the EEOC sent Kroger a request for information ("RFI") seeking several categories of documents related to the Assessment, including requests for validity studies going back to January 1, 2007. Doc. No. 1-6. On March 11, 2008, when Kroger responded, but failed to provide all of the information requested, the EEOC issued a third-party Administrative Subpoena to non-party, Kronos. Doc. Nos. 1-7 and 1-8.
C. Text of Original Subpoena (hereinafter "Subpoena One")
In Subpoena One, dated March 11, 2008, the EEOC sought the following:
1. Produce any and all documents and data constituting or related to validation studies or validation evidence pertaining to Unicru [a subsidiary of Kronos] and/or Kronos assessment tests purchased by The Kroger Company, including but not limited to such studies or evidence as they relate to the use of the tests as personnel selection or screening instruments.
2. Produce the user‟s manual and instructions for the use of the Assessment Tests used by The Kroger Company.
3. Produce any and all documents (if any) related to The Kroger Company, its use of the Assessment Tests, and any validation efforts made regarding any and all jobs at the Kroger Company.
4. Produce any and all documents discussing, analyzing or measuring potential adverse impact on people who have disabilities.
5. Produce any and all documents related to job analysis performed by any person or entity related to any or all positions at The Kroger Company.
On March 21, 2008, Kronos filed a petition to revoke Subpoena One pursuant to 29 C.F.R. § 1601.16(b) on the basis that the documents in question were irrelevant to the EEOC Charge and constituted Kronos‟ commercial trade secrets. Doc. No. 1-13.
D. The EEOC Expands Scope of Investigation
In undated letter, the EEOC notified Kroger that it was expanding the scope of the ADA investigation. The letter to Kroger stated, in pertinent part, as follows:
Based upon its authority, the EEOC‟s Pittsburgh Area Office hereby serves notice that the above referenced charge has been expanded to include the issue of disability with respect to the use of assessment tests in hiring (class) during the period August 1, 2006 to the present and for all facilities in the United States and its territories.
Supposedly, on the basis of the discovery of an article, co-written by a Kronos employee, which indicated that minority applicants performed worse than non-minority applicants on the Kronos Assessment, and on the basis of its "charge database" which allegedly contained complaints against Kroger alleging failure to hire on the basis of both disability and race, the EEOC once again sent Kroger a letter (dated May 30, 2008) stating that the EEOC was expanding its charge to include disability and race discrimination "with respect to the use of Assessment Tests including but not limited to the Kronos Dependability -- Customer Service Combo Assessment in hiring (class) for the period beginning from the date such test(s) were implemented by the Respondent through the present and for all facilities in the United States and its territories." Doc. No. 1-11.
E. Text of Subpoena No. TPI-864 (hereinafter "Subpoena Two") On October 7, 2008, the EEOC revoked Subpoena One, and issued Subpoena Two, Subpoena No. TPI-864, directing that Kronos:
1. Produce any and all documents and data constituting or related to validation studies or validation evidence pertaining to Unicru and/or Kronos assessment tests purchased by The Kroger Company, including but not limited to such studies or evidence as they relate to the use of the tests as personnel selection or screening instruments.
2. Produce the user‟s manual and instructions for the use of Assessment tests used by The Kroger Company[.]
3. Produce any and all documents (if any) related to the Kroger Company, including but not limited to correspondence, notes, and data files, relating to Kroger Company; its use of the Assessment Test; results, ratings, or scores of individual test takers; and any validation efforts made thereto.
4. Produce any and all documents discussing, analyzing or measuring potential adverse impact on people with disabilities and/or an individuals [sic] race.
5. Produce any and all documents related to any and all job analysis performed by any person or entity related to any or all position at the Kroger Company.
6.Furnish a catalogue which includes each and every assessment offered by Unicru/Kronos. Additionally provide descriptions of each assessment.
Doc. No. 1-9 (any changes/additions between the text of Subpoena One and Subpoena Two have been italicized).
F. Petition to Revoke Subpoena Two
Kronos filed a Petition to Revoke Subpoena Two pursuant to 29 C.F.R. §
1601.16(b) stating that it is substantially similar to, but broader
than, Subpoena One, which the EEOC revoked pursuant to "administrative
error." Doc. No. 1-12. Kronos took the position that the EEOC‟s
request for the "results, ratings, or scores of individual
test-takers" was "extraordinarily overbroad" in that it "could
potentially cover hundreds of thousands of current and former Kroger
employees and job applicants, who applied for positions at any of
Kroger‟s over 2,400 supermarket locations at any time." Kronos also
stated that the "[c]compliance with this request would require Kronos
to expend very substantial resources, time and money." *fn2
Doc. No. 1-12.
However, on January 7, 2009, the EEOC denied (by decision of Executive Officer Stephen Llewellyn) Kronos‟ Petition to Revoke Subpoena Two and Kronos was ordered to comply with Subpoena Two by February 9, 2009. After a series of emails and letters, Kronos took the position that it would not respond to Subpoena Two, and on March 19, 2009, the EEOC filed its Motion for Order to Show Cause at Miscellaneous Docket No. 09-mc-79.
G. Text of Subpoena Two Order as "Redrafted" by the Court
As summarized hereinabove, after extensive briefing on this matter, on June 1, 2009, this Court entered its Order granting in part and denying in part the EEOC‟s application to enforce Subpoena Two against Kronos. The Court "re-drafted" Subpoena Two, to place certain limitations as to scope, time, and geography. As rehearsed, the Court was careful to state that, while anything beyond the scope of the re-drafted Subpoena was not relevant, the EEOC was free to re-apply after the conclusion of discovery for any additional specific documents.
The text of Subpoena Two, as "redrafted" by the Court, is set forth below.
1. Produce any user's manual and instructions for the use of the Assessment Tests provided to The Kroger Company.
2. Produce any and all documents and data, including but not limited to correspondence, notes, and data files, relating to The Kroger Company; The Kroger Company‟s use of the Assessment Tests; results, ratings, or scores of individual test-takers at The Kroger Company; and any validation efforts performed specific for and only for The Kroger Company.
3. Produce any and all documents discussing, analyzing or measuring potential adverse impact on individuals with disabilities, relating specifically to and only to The Kroger Company.
4. Produce any and all documents related to any and all job analyses created or drafted by Kronos relating to the bagger, stocker, and/or cashier/checker positions at The Kroger Company.
5. Furnish any catalogue provided to The Kroger Company.
6. Items 1 through 5 are limited to the time period of January 1, 2006 through May 31, 2007, in the state of West Virginia, for the positions of bagger, stocker, and/or cashier/checker.
In its June 1, 2009 Order, this Court also ordered the parties to enter into an appropriate Confidentiality Order. Doc. No. 16. On July 22, 2009, when the parties failed to agree on the necessity and/or language of a Confidentiality Order, the Court adopted ...