United States District Court, D. Alaska
SHARON L. GLEASON, District Judge.
Before the Court at Docket 85 is Parker Drilling's Motion to Compel EEOC's Production of Documents Bates Numbered EEOC 000001-000099, filed on August 4, 2014. Presently at issue are only three pages of documents, Bates numbered 000092, 000093, and 000095. The motion seeks the production of those documents and the awarding of fees and costs. For the reasons discussed below, the motion will be granted in part and denied in part.
On June 3, 2014, Parker Drilling served document production requests on the EEOC. The EEOC responded on July 3, 2014. The privilege log in effect at the time of the EEOC's response indicated that 99 pages of documents, Bates numbered 000001-000099, were withheld only under an asserted "conciliation" privilege. The withheld documents were identified as including backpay calculations made by an EEOC investigator, Parker Drilling website content and job announcements, correspondence between Parker Drilling and the EEOC during conciliation efforts, internal EEOC correspondence, and interviews conducted with Mr. McDowell. Parker Drilling filed its motion to compel the EEOC to produce the withheld documents on August 4, 2014. The EEOC opposed the motion on August 21, 2014, taking the position that it could not lawfully release the documents without Mr. McDowell's and its own consent. Parker Drilling replied on September 2, 2014. Oral argument was not requested and was not necessary to the Court's determination of the motion.
In its reply, Parker Drilling indicated that on August 28, 2014, the EEOC stated that "we have obtained the necessary consents to disclose non-privileged documents compiled during the conciliation phase of the Commission's charge processing" and turned over 96 pages of documents that the agency had initially withheld. The EEOC continues to withhold three documents, Bates numbered 000092, 000093, and 000095. In a revised privilege log, it continues to assert the conciliation privilege and adds combinations of the attorney-client and government deliberative process privileges. Those three pages are the only documents now at issue.
Parker Drilling seeks an order compelling the production of the remaining three documents. It asserts the conciliation privilege is inapplicable and that the EEOC waived the newly asserted privileges by failing to identify them in its initial privilege log. Parker Drilling also seeks its fees and costs associated with this motion to compel under Rule 37(a)(5)(A). It asserts that an award is appropriate in light of the EEOC having delayed disclosure of 96 pages of documents until after Parker Drilling filed its motion to compel.
I. The conciliation privilege.
42 U.S.C. § 2000e-5(b) provides in pertinent part that if the Commissioner determines after investigation that there is reasonable cause to believe an unlawful employment practice claim has merit,
the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing said or done during and as a part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned.
A. The public disclosure provision of § 2000e-5(b) does not prevent disclosures to Parker Drilling.
The public disclosure provision of § 2000e-5(b) provides that "[n]othing said or done during and as a part of [conciliation efforts] may be made public by the Commission... without the written consent of the persons concerned." Parker Drilling asserts that as a party to this case, it is not a member of the "public" to whom disclosure of conciliation documents is prohibited. It cites to the Supreme Court's holding in EEOC v. Associated Dry Goods for support. There, the EEOC sought to administratively subpoena records from Associated Dry Goods, an employer. Associated Dry Goods refused to produce the records unless it was assured that the EEOC would hold its records in absolute secrecy and not provide them to the charging parties. The EEOC refused to agree, leading Associated Dry Goods to seek a declaration that the EEOC could not disclose the company's records to the charging parties. In rejecting Associated Dry Goods' position, the Court held:
[W]e have concluded that Congress did not include charging parties within the "public" to whom disclosure of confidential information is illegal under the provisions of Title VII here at issue. Section 706(b) states that "[c]harges shall not be made public." The charge, of course, cannot be concealed from the charging party. Nor can it be concealed from the respondent, since the statute also expressly requires the Commission to serve notice of the charge upon the respondent within 10 days of its filing. Thus, the "public" to whom the statute forbids disclosure of charges cannot logically include the parties to the agency proceeding.
In a footnote appended to that passage, the Court also noted:
The statute also forbids public disclosure of any matters arising in informal conciliation "without the written consent of the persons concerned." This phrase suggests that the parties, the "persons" whose consent would most obviously be necessary, are not members of the "public" to whom disclosure is forbidden.
Here, it appears that the EEOC is not arguing that it is permitted to withhold conciliation materials from Parker Drilling under the public disclosure provision of § 2000e-5(b). Given the Supreme Court's interpretation in Associated Dry Goods, the Court finds that the public disclosure provision does not apply ...