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Equal Employment Opportunity Commission v. Faps, Inc.

United States District Court, Third Circuit

September 10, 2013

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Plaintiff,
v.
FAPS, INC. et al. Defendants.

MEMORANDUM AND ORDER

DOUGLAS E. ARPERT, District Judge.

Currently before the Court is an application by Plaintiff Equal Employment Opportunity Commission ("EEOC") for sanctions. Specifically, the EEOC seeks: (1) an order directing defense counsel to disclose all materials, documents, notes and communications between defense counsel or defense counsel's agents, and the EEOC claimants; (2) an order preventing Defendant from using any materials, statements, mental impressions and information obtained by defense counsel from the EEOC claimants; and (3) an order permitting the EEOC to depose persons representing Defendant who received information, directly or indirectly, from the EEOC claimants, including but not limited to employees and agents of a private investigative firm. EEOC's Letter, July 26, 2013 at 6. For the reasons discussed below, the Court will GRANT, in part, and DENY, in part, the EEOC's application.

I. INTRODUCTION

A. Relevant Facts

The EEOC seeks intervention by the Court to stop DeCotiis, FitzPatrick & Cole, LLP, counsel of record for Defendant FAPS, Inc. ("Defendant" or "FAPS"), from using a private investigator to conduct ex parte interviews of the claimants and potential claimants in this EEOC action. The EEOC brought this action under Title VII of the Civil Rights Act of 1964, Title I of the Americans with Disabilities Act of 1990, and Title I of the Civil Rights Act of 1991 to "correct unlawful employment practices on the basis of race and disability, and to provide relief to a class of potential and actual applicants who were adversely affected by such practices." Compl. at 1.

On July 2, 2013, the Court received a letter on behalf of the EEOC claiming that defense counsel had hired a private investigator to conduct ex parte interviews of the 28 claimants and potential claimants listed in the EEOC's Second Amended Rule 26 disclosures.[1] EEOC's Letter, July 2, 2013 at 1. The EEOC emailed counsel directly, demanding that the private investigator cease all interviews with the claimants, as well as seeking copies of all information "including written statements, questionnaires and/or notes, obtained by the private investigator." See EEOC's Letter, July 2, 2013.

On July 3, 2013, Defendant submitted a letter to the Court opposing the EEOC's application. Specifically, Defendant claims that the attorney-client privilege does not exist as between the EEOC and the claimants, and that the private investigator was instructed to terminate interviews and all contact with the claimants if they informed the investigator that they were represented by counsel. Defendant's Letter, July 3, 2013 at 5.

Following a hearing on July 23, 2013, the EEOC submitted a Certification to the Court, certifying that four of the claimants interviewed by the private investigator disclosed that they were unaware that the private investigator had been hired by Defendant's counsel. Disavino Cert. at 4.

On July 26, 2013, August 2, 2013 and August 7, 2013, the EEOC submitted additional Declarations on behalf of Walter Anderson, Schakeera Walker, Darryl Britt, Harvey Glenn and James Giles, claimants who were interviewed by the private investigator. Both Mr. Anderson and Ms. Walker declared that the private investigator affirmatively mislead them by saying that he "was with the EEOC" or that "he worked for Rosemary Disavino". Anderson Decl. at ¶ 5; Walker Decl. at ¶ 4. The three other claimants assumed the private investigator worked for the EEOC, even though the investigator said that he "worked for FAPS" or with "CTS Research" ("CTS"). Britt Decl. at ¶ 5; Glenn Decl. at ¶ 4; Jiles Decl. at ¶ 4. All five claimants certified that they are represented by the EEOC. Anderson Decl. at ¶ 5; Britt Decl. at ¶ 2, ; Glenn Decl. at ¶ 2; Jiles Decl. at ¶ 2; Walker Decl. at ¶ 2.

During interviews with four of the five claimants, the private investigator apparently did not ask whether the claimants were represented by the EEOC or other counsel. Britt Decl. at ¶ 6; Glenn Decl. at ¶ 7; Jiles Decl. at ¶ 5. For example, Mr. Walker claims he informed the investigator that he was represented by counsel; the investigator, however, continued the interview. Walter Decl. at 5. On August 12, 2013, Defendant submitted Certifications from the private investigators which disputed some or all of allegations in the claimants' Certifications.

B. Procedural History

Pursuant to the Court's September 25, 2012 Scheduling Order, fact discovery was set to close on November 15, 2012. See dkt. no. 73. Because of the effects of Hurricane Sandy, on November 19, 2012, the Court granted FAPS' request for a stay and entered an Order staying this action for a period of 90 days. See dkt. no. 79. In an Order dated April 4, 2013, the Court further extended the deadline for completion of fact discovery to June 14, 2013. See dkt. no. 81. Fact discovery was further extended until June 28, 2013 for limited purpose of allowing the parties to depose a union representative from former third party defendant Local 1478. See dkt. no. 85.

II. LEGAL STANDARDS

1. Parameters of attorney-client relationship ...


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