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Protective order against EEOC overturned in discrimination case

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A federal appeals court overturned a protective order issued against the U.S. Equal Employment Opportunity Commission as it sought additional evidence in a discrimination case filed against a financial and consulting services firm.

The case, Equal Employment Opportunity Commission v. BDO USA L.L.P., involved the agency’s efforts to gain information in litigation filed on behalf of a former BDO human resources director, with BDO contending the information the EEOC sought was subject to attorney-client privilege.

Hang Bower, chief human resources officer for Chicago-based BDO, resigned from the firm in January 2014 and in July 2014 filed a charge with the EEOC, alleging BDO had violated Title VII of the Civil Rights Act and the Equal Pay Act by subjecting her and other female employees to gender discrimination, retaliation and a hostile work environment, according to the ruling by the 5th U.S. Circuit Court of Appeals in New Orleans. The ruling was initially issued May 4, and a revised version was issued Monday.

EEOC made three requests for information, seeking details related to the individual and classwide claims in Ms. Bower’s charge, according to the ruling. 

BDO objected to providing all the information requested, and the EEOC issued a subpoena seeking documents and information relating to the investigation in July 2015.

In response, BDO provided some, but not all, of the requested information and created a “privilege log,” cataloging withheld documents for which it asserted attorney-client privilege, according to the ruling.

In December 2015, the EEOC filed a subpoena enforcement action in U.S. District Court in Houston. In response, BDO requested a protective order enjoining the EEOC from questioning Ms. Bower and BDO employees regarding their conversations with BDO’s counsel, and requiring the EEOC to return or destroy evidence of witness interviews and other documents.

A magistrate judge denied the EEOCs’ request to enforce the subpoena and granted BDO’s request for protective relief, which was subsequently affirmed by the District Court in March 2016. 

The EEOC appealed, and a three-judge appeals court panel ruled in the agency’s favor. The District Court erred when it accepted BDO’s claim of attorney-client privilege based on the privilege log, said the panel.

The log “possesses three types of deficiencies that prevent the court from determining the applicability” of the attorney-client privilege, said the ruling: entries that are vague and/or incomplete; entries that do not distinguish between legal and business advice; and entries that do not establish which communications were confidential.

BDO “did not prove its prima facie case of attorney-client privilege as to all of the log entries,” said the ruling. “Although we leave to the district court’s discretion how to proceed on remand,” a hearing in the judge’s private chambers “will likely be necessary given the facts and circumstances of this case.

The ruling also overturned the protective order for now. “We agree that the trial court appears to have applied an incorrect legal standard,” said the ruling. “We do not, however, hold that a protective order is unwarranted, and we leave the decision whether to grant such an order to the trial court,” said the ruling, in remanding the case for further proceedings.