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Equal Employment Opportunity Commission v. Western Distributing Co.

United States District Court, D. Colorado

May 22, 2019

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
WESTERN DISTRIBUTING COMPANY, Defendant.

          ORDER

          Scott T. Varholak Magistrate Judge

         This matter is before the Court on the Notice and Order Regarding Appointment of Master. [#220] As required by Federal Rule of Civil Procedure 53(b)(1), the Court has given the parties notice, and an opportunity to respond. [Id.] Plaintiff filed an objection to the appointment of a special master [#221], and Defendant filed a response to the objection in which it indicated its support for a special master [#224]. On May 15, 2019, the Court held argument on the notice and Plaintiff's objection. [#225] Consistent with Federal Rule of Civil Procedure 53(a)(3), the Court has considered the fairness of imposing the likely expenses on the parties and has protected against unreasonable expense or delay, as described below.

         I. BACKGROUND

         The Equal Employment Opportunity Commission (“EEOC”) initiated the instant matter against Defendant Western Distributing Company (“Western”) in July 2016, alleging disability discrimination in violation of the Americans with Disabilities Act (“ADA”) and Title I of the Civil Rights Act of 1991. [See generally #1] EEOC brings the action on behalf of 58 aggrieved individuals. [See generally ##63, 103; see also #224 at 3]

         Throughout the course of this litigation, the relationship between counsel has been contentious. The Scheduling Order was initially entered on September 14, 2016. [#26] Over the course of the next five months, the Court held four hearings to resolve disputes related to discovery. [##41, 45, 70, 79]

         On March 24, 2017, discovery was stayed in this matter so that the parties could pursue mediation. [##81, 83] Mediation was unsuccessful and, on September 26, 2017, the Court lifted the stay and allowed discovery to recommence. [#94] On April 4, 2018, this Court held another discovery dispute hearing to resolve both a motion to quash a third-party subpoena and a motion for protective order. [#134] At the conclusion of that hearing, the EEOC raised another discovery dispute concern, and the Court set the matter for further hearing on May 7. [#135 at 57-61] The parties represented that they were having extensive discovery disputes, and this Court gave them permission to exceed the Court's page limits for discovery dispute statements. [Id. at 62]

         On May 4, upon receiving the parties' joint discovery statement, this Court vacated the May 7 hearing. [#142] As detailed in the Court's Minute Order, the parties had “submitted approximately 90 pages of briefing raising over 30 separate disputes.” [Id. at 1] Moreover, “the parties ha[d] not complied with this Court's Civil Practice Standards, which require the parties to fully complete their meet and confer process on disputes prior to contacting the Court to set a hearing.” [Id.] The Court explained that “[t]he discovery dispute statements submitted to the Court reflect[ed] numerous instances in which supplemental responses ha[d] been promised but not yet delivered and where the parties ha[d] a clear misunderstanding between them about exactly what information is being sought.” [Id.] Finally, the Court noted that “a cursory review of the dispute statements ma[de] clear that the parties ha[d] not complied with this Court's directive that the parties make a reasonable, good faith effort to resolve the discovery dispute[s] without the need for judicial intervention.” [Id. at 2 (quotation omitted)]. Thus, the Court ordered the parties to meet and confer in person in an attempt to resolve the disputes. [Id. at 2-3]

         Despite the Court's Order, the parties were unable to resolve their disputes and further judicial intervention was necessary. The Court thus set an August 27, 2018, discovery dispute hearing. [##161, 173] In advance of the hearing, the parties submitted two joint statements. The first involved eight disputes that the parties had concerning EEOC's discovery responses. The joint statement was 45 pages long. The second involved seven disputes that the parties had concerning Western's discovery responses. It was 38 pages long. During a hearing held on August 27, 2018, the Court meticulously went through each of the parties' disputes, and issued a ruling on each. [#174] That hearing lasted 1 hour and 44 minutes. The Court spent hours preparing for the hearing.

         Undeterred, 25 days later, the parties once again notified the Court that they had a discovery dispute that needed the Court's attention. [#184] Thus, the Court set the matter for another discovery hearing on September 25, 2018. [Id.] This discovery dispute involved a request by the EEOC to quash sixteen subpoenas issued to aggrieved individuals. The Court had previously resolved a similar dispute amongst the parties. At the September hearing, the Court denied the request to quash the subpoenas. [#185] The Minute Order from the hearing reflects that “[a]fter reviewing the joint statement of the parties and as indicated at the last hearing that the information sought by Western is relevant and that the relevance overcomes any privacy interests . . . the court . . . will DENY any request to quash the subpoenas.” [Id. at 1-2 (emphasis added)] Thus, as reflected in the Minute Order, the Court was obligated to rule on an issue that it had already decided.

         Slightly over a month later, the parties again notified chambers that they had a discovery dispute that needed judicial intervention. [#188] In advance of the hearing, the parties once again submitted two joint statements. The first purportedly involved four issues raised by the EEOC, but subsumed within the first issue was the EEOC's argument that Western had submitted deficient responses to 16 requests for production. The joint statement was 24 pages long. The second involved two issues raised by Western. That joint statement was 12 pages long. On November 20, 2018, the Court held a hearing on the disputes. [#190] The hearing lasted just under one hour, but the Court spent hours preparing for the hearing.

         A month later, on December 21, 2018, the parties again notified the Court that they had a discovery dispute that required the Court's attention. [#199] The Court set a hearing for January 8, 2019. [Id.] Due to the government shutdown, however, the hearing was vacated and the case was stayed. [#202] On February 25, 2019, following the conclusion of the government shutdown, the Court lifted the stay and entered a new discovery deadline of August 2, 2019. [#211]

         On March 15, 2019, the parties again contacted the Court in need of judicial resolution of a discovery dispute. [#212] The Court set a hearing for April 4, 2019. [##212, 213] Once again, the parties submitted two joint statements in advance of the hearing. The first was an issue raised by the EEOC as to whether Western should be permitted to take the deposition of the lead investigator who had interviewed numerous aggrieved individuals. The EEOC objected on relevance and burden grounds, even though the investigator clearly had relevant information and, indeed, her notes conflicted with the sworn testimony of some of the aggrieved individuals. The joint statement on this first issue was 13 pages long.

         The second statement involved several issues raised by Western. Western objected to the deposition of its CEO under the apex doctrine. It did so even though the CEO was identified in Western's Rule 26 disclosures as a witness Western expects to rely upon to establish its defenses, the CEO provided the verification for many of Western's responses, and the CEO had already attended 28 depositions in this case.

         Another issue raised by Western's statement of issues involved the sufficiency of the EEOC's responses to 17 standard requests for admission and one non-standard requests for admission. The standard requests for admission were directed at each of the 58 aggrieved individuals, thus Western apparently challenged the responses to 986 requests for admission (17*58). The second statement was 46 pages long. At the April 4 hearing, the Court resolved some of the parties' disputes. [#215] The Court also raised the possibility of appointing a special master, especially given the apparent challenge to 986 requests for admission. [Id.]

         On April 16, 2019, this Court issued its Notice and Order Regarding Special Master, providing notice of the Court's intent to appoint Jane G. Ebisch, Esq. as a master to handle discovery disputes in this case. [#220] The Court gave the parties the opportunity to object to this appointment. [Id. at 2] EEOC objected to the appointment of a master, arguing that: (1) a master was not warranted, (2) appointment of a master may cause the EEOC to run afoul of federal procurement laws, (3) the Court had not sufficiently laid out the procedure ...


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