UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
February 22, 2011
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, RE: PETITIONER,
RESPONDENT Z FOODS, INC.'S
Z FOODS, INC. DBA ZORIA FARMS, AND FRANCISCO GUERRA, RUSTIC CANYON FONTIS PARTNERS, RESPONDENTS.
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION MOTION FOR RECONSIDERATION OF MAGISTRATE JUDGE'S ORDER (Doc.38.)
This matter is before the Court on Respondent Z Foods, Inc.'s motion for reconsideration of the Magistrate Judge's October 28, 2010 Order enforcing a subpoena in an investigative context. The Order found that Respondent and its counsel impeded the EEOC's investigation into sexual harassment at Z Foods; required Respondent and its counsel not to interfere with the EEOC's investigation into alleged misconduct at Z Foods; ruled that Zoria personnel and legal counsel were not to attend the deposition of Francisco Guerra, a supervisor at Z Foods; and Mr. Guerra was to complete his subpoenaed testimony at the EEOC's Fresno offices.
The procedural and factual background are summarized in the Magistrate Judge's previous Memorandum Decisions in this case, filed on February 25 and October 28, 2010, in brief: The Equal Employment Opportunity Commission ("EEOC") filed an application for an order to show cause why subpoena should not be enforced on December 7, 2009. (Doc. 1.) The EEOC's motion was limited to the enforcement of a subpoena in an administrative matter.*fn1 As of February 22, 2011, no complaint has been filed.
The dispute arises out of the EEOC's investigation into an alleged pattern and practice of harassment against a class of women at Z Foods. The EEOC claims it received fourteen charges of discrimination generally against Z Foods from January 26, 2008 to April 22, 2009. The EEOC charges allegedly share a common theme of preferential treatment toward younger women, "quid pro quo" sexual harassment and sexual misconduct (assault). As a result of these allegations, the EEOC conducted an on-site investigation and interviewed Francisco Guerra, an alleged sexual harasser and supervisor at Z Foods.
The EEOC first interviewed Mr. Guerra, represented by counsel, on September 2, 2009. According to the EEOC, Mr. Guerra's counsel, Mr. Sagaser, did not allow Mr. Guerra to answer questions concerning subject matter/individuals not specifically enumerated in the EEOC charges. Other questions were not answered on the basis of Mr. Guerra's "privacy rights." Melissa Barrios, Director of the EEOC's Fresno office, summarizes the September 2, 2009 interview - and the conflict between the EEOC counsel and Mr. Sagaser - as follows:
On approximately the first 1:30 day pm of on Guerra's 2, interview, at Mr. 2009, aboutSeptember MariaMarquez, Guerra's interactions Federal Investigator at and off and I inquired Mr.a Charging Party. As there are of the work site with and practice of harassment against allegations a classof a pattern however, Guerra's interactions we continued various efforts to of women, Elizabeth Ceballos with an employee by ask about regarding women. and efforts to of other made explore the name Howard However, Respondent's Attorney this Sagasar not allow immediately questions ended regarding my inquiry stating thathe wouldnot inquiries named were in any charge. female employees too broad and privacy. the witness' suchHe invaded added that any EEOC he is to allegations ofDuring harassment, the interview, Guerra declared as a defensethe is aware that his wife that also married. Because investigation, may have information asked relevant to works claims for andrefused wife's the ZoriaI privacy. him for underGuerra We his at name. Guerra assertingno time discussed to ask their marital outside of work or in the the day, work we attempted ask intimacy. Further near site where to Mr. Guerra after Without employees are about a store work. my questioning or known to gather informed me with that he has never prompting, Guerra relationship had any of a attempted and his wife's about private life had romanticquickly we not asked anything the about market. Curiously, employee Sagasar he further seeking on this that. asserting impeded In said store, that would be questions issue to however, a female that a protective order. Guerra, the EEOC as a prior has is Zoria employee, working been under reportedthe store. Given the allegations a current of sexual employee of saidbelieved to beinquire charges in about of discrimination, employee Guerra's interactions the EEOC harassment wishes toSagasar has and other female employees. said female any withUnfortunately, to thiscentral information from an alleged harasser. refused to allow the EEOC access(Doc. 17 at ¶ 3.)
Mr. Guerra's interview continued on September 3, 2009.*fn2
According to the EEOC, Mr. Sagaser again instructed Mr. Guerra to invoke his privacy rights and refuse to answer questions concerning his alleged relationships with current or female employees at Z Foods. After two hours of questioning, the EEOC ended the interview because "Guerra [was not allowed] to answer centrally needed information about Guerra's interaction with female employees beyond one Charging Party." (Id. at ¶ 3.)
At the conclusion of the September 3, 2009 interview, the EEOC served a subpoena on Mr. Guerra seeking, inter alia, information related to Mr. Guerra's sexual conduct/activity with current or former employees at Z Foods. The subpoena required his attendance at the EEOC's office in Fresno on September 11, 2009.
In the interim the parties exchanged correspondence concerning the validity of Mr. Sagaser's objections and the scope of the EEOC's investigatory powers. By September 9, 2009 letter, the EEOC stated that it "categorically disagreed" with Mr. Sagaser's position that Mr. Guerra is not required to "answer questions related to whether he has engaged in sexual conduct with employees, regardless of whether the conduct occurred on the premises of the worksite, or later away from the worksite." Based on the costs associated with the September 11, 2009 interview, the EEOC requested that Mr. Sagaser "verify whether you will permit the EEOC to continue this area of inquiry, and whether you will permit the your client to answer the questions without instructions from you to the contrary." The EEOC also expressed concern about possible witness intimidation by Z Foods employees.
On September 10, 2009, Mr. Sagaser responded that the EEOC has "broad investigatory powers [but] those powers are not unlimited." According to Mr. Sagaser, questions concerning Mr. Guerra's possible sexual encounter with a grocery store employee were "outside the bounds of a proper investigation." He then requested an advance copy of interview questions because, absent an advance review, it is "impossible  to determine whether  the questions are appropriate or invade the individual's right to privacy, including his or her sexual history or involve privileged communication."
The EEOC cancelled the interview on September 10, 2009. The EEOC claimed that it was "well within its authority to ask Mr. Guerra and others questions regarding sexual conduct, on or off premises, that affects current or former employees, particularly due to the serious nature of the allegations." According to the EEOC, it was "unable to complete Mr. Guerra's interview due, in part, to [Mr. Sagaser's] continued objections keeping [Mr. Guerra] from answering questions" relevant to its investigation of sexual harassment at Z Foods. The EEOC declined to produce the requested interview questions and referred the subpoena to its legal division.
On December 7, 2009, the EEOC sought enforcement of the subpoena by the District Court. The EEOC's opening brief explains the basis and grounds for judicial enforcement of the subpoena: The the subpoena agency's was authority properly issued. complies requirements from for such subpoenas. and The with issued subpoena procedural It was within sought information potential a person accused of his witness of discrimination and harassment, is a procedures management regarding position, with Zoria's is policies familiar, employment and in Such information is to assess discrimination. complainants' necessary validity discrimination the of the well as the viability employment liability. of Respondent's arguments allegations against as Respondent revoke waiving failed any to objections file an administrative of petition to that are not based on constitutional privacy or otherwise Title VII confidentiality safeguards adequately grounds. Further, privacy preemption interests. of state Further, law, federal because courts of federal protect consistently confidentiality ruled rights that any not alleged California have declining do a based subpoena under Title VII [...] to comply with the provide EEOC's investigative basis for EEOC's clear Despite subpoena, the Zoria's authority counsel impeded to carry out the ability to interview Guerra the EEOC's similarly interfere with Respondent Mr.other witness and is expected to threaten account intimidate of providing interviews their and complete any them against the the conduct allegations that investigating. shed may light on presence that EEOC is ability His the will hamper the EEOC's Guerra against of discrimination against Zoria, to investigate Mr. charges encourage EEOC and will investigation with EEOC's discrimination. This interference or complaining is about hindering employment chill cooperating the the EEOC's other witnesses from voluntarily with cooperating discrimination ability to the against investigate Respondent fourteen Zoria. (14) charges of The conduct of Respondent willing witnesses Zoria's counsel makes it clear that Respondent not be that even EEOC fear Zoria might to speak perceive with their the for will able In fact, witness interviews is suspect. at the communications presence of as any violating Respondent privacy Zoria concerns. representatives (Doc. 3 at 3:21-4:23.)
Z Foods opposed the order to show cause on February 2, 2010, arguing that the EEOC failed to demonstrate a proper basis for enforcement.
The EEOC's application was granted in part and denied in part on February 25, 2010. The Magistrate Judge determined that Respondent and its counsel impeded the EEOC's investigation into sexual harassment at Z Foods; required Respondent and its counsel not to interfere with the EEOC's investigation into alleged misconduct at Z Foods; ordered Mr. Guerra to complete his subpoenaed testimony at the EEOC's Fresno offices; and barred Z Foods personnel and legal counsel from intimidating any witness cooperating with the EEOC. The EEOC's request for costs was denied.
Z Foods filed a motion for reconsideration of the Order on February 25, 2010.
On October 28, 2010, the Magistrate Judge amended the February 25, 2010 Order to resolve any uncertainty or ambiguity concerning the impact and review of Z Foods' original opposition, filed on February 2, 2010 under the heading "Answer to Complaint."*fn3 In the Amended Order, the Magistrate Judge analyzed Z Foods' opposition and supporting documents and determined that they did not control the analysis. The Amended Order reaffirmed the conclusions reached in the February 25, 2010 Order. The EEOC's application was granted in part and denied in part.
The instant motion for reconsideration of the October 28, 2010 Order was filed on November 10, 2010. The EEOC's opposition was filed on November 22, 2010. Oral argument was held on January 24, 2011. The motion is now submitted for decision.
III. LEGAL STANDARD.
Motions to reconsider are committed to the discretion of the trial court. Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en banc); Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987). To succeed, a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. See, e.g., Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986), aff'd in part and rev'd in part on other grounds, 828 F.2d 514 (9th Cir. 1987). When filing a motion for reconsideration, Local Rule 78-230(j) requires a party to show the "new or different facts or circumstances claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion." The court reviews a motion to reconsider a Magistrate Judge's ruling under the "clearly erroneous or contrary to law" standard set forth in 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). The Court may only set aside those portions of the Magistrate Judge's order that are either clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a); see also Grimes v. City and County of San Francisco, 951 F.2d 236, 240 (9th Cir. 1991).
"The scope of the judicial inquiry in an EEOC or any other agency subpoena enforcement proceeding is quite narrow." EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071, 1076 (9th Cir. 2001) (quoting EEOC v. Children's Hosp. Med. Ctr., 719 F.2d 1426, 1428 (9th Cir. 1983) (en banc), abrogated on other grounds by Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114L.Ed.2d 26 (1991)); accord NLRB v. Am. Med. Response, Inc., 438F.3d 188, 193 (2d Cir. 2006)(the district court's "role in a proceeding to enforce an administrative subpoena is extremely limited.").
In the context of this dispute, the critical questions are: "(1) whether Congress has granted the authority to investigate; (2) whether procedural requirements have been followed; and (3) whether the evidence is relevant and material to the investigation." Children's Hosp., 719 F.2d at 1428. "If these factors are shown by the agency, the subpoena should be enforced unless the party being investigated proves the inquiry is unreasonable because it is overbroad or unduly burdensome." Id.
Respondents challenge only the third prong, which addresses relevance and materiality. "Since the enactment of Title VII, courts have generously construed the term 'relevant' and have afforded the Commission access to virtually any material that might cast light on the allegations against the employer." EEOC v. Shell Oil Co., 466 U.S. 54, 68-69 (1984). The Ninth Circuit recently reviewed the standards by which a district court must assess relevancy:
[C]courts must enforce administrative subpoenas unless the incompetent evidence or irrelevant sought by tothe determined subpoena is plainly agency [...] Relevancy is any lawful purpose of the investigation rather than in in terms of the relevance [...] Moreover, the relevancy terms of evidentiary 'not especially constraining' [....] requirement isEEOC v. Fed. Express Corp., 558 F.3d 842, 854 (9th Cir. 2009) (citations omitted).
The administrative subpoena may not, however, "be so broad so as to be in the nature of a 'fishing expedition.'" Peters v. United States, 853 F.2d 692, 700 (9th Cir. 1988). There must be a realistic expectation that something may be discovered that pertains to the investigation. See EEOC v. United Air Lines, Inc., 287 F.3d 643 (7th Cir. 2002) (citing United States v. Harrington, 388 F.2d 520, 524 (2d Cir. 1968)).
If the EEOC meets this burden, the burden shifts to the respondent to
prove that the subpoena is overbroad or unduly burdensome.*fn4
That burden is difficult to meet. See EEOC v. United Air
Lines, Inc., 287 F.3d 643, 653 (7th Cir. 2002) ("[T]he employer
"carries the difficult burden of showing that the demands are unduly
burdensome or unreasonably broad."); EEOC v. Maryland Cup Corp., 785
F.2d 471, 477 (4th Cir. 1986) ("[T]he burden of proving that an
administrative subpoena is unduly burdensome is not easily met."); cf.
EEOC v. United Parcel Serv. Inc., 587 F.3d 136, 139 (2d
Cir. 2009) (per curiam) (enforcing EEOC subpoena seeking information
on how employer applied appearance guidelines nationwide in EEOC
investigation of two complaints of religious discrimination).
Compliance with a subpoena is excused if it "threatens to unduly
disrupt or seriously hinder normal operations of a business." Maryland
Cup Corp., 785 F.2d at 479.
The substance of Respondent's argument is that the administrative subpoena seeks information not relevant to the EEOC's charge; the EEOC "failed" to list specific questions Guerra refused to answer in support of its enforcement action; and Guerra did not refuse the subpoena, rather the EEOC unilaterally canceled the interview. All of these arguments lack merit and do not preclude enforcement of this subpoena.
A. Relevancy and Materiality The EEOC is investigating allegations that Z Foods supervisors sexually harassed, assaulted, and preferenced female employees who engaged in sexual activity with them. To further its investigation into the "allegations of a pattern and practice of harassment against a class of women," the EEOC is examining Z Foods supervisor's relationships with current and former employees at Z Foods, including the charging parties. As part of the investigation, Mr. Guerra, a supervisor, was asked about his sexual activity with an employee at Z Foods named Elizabeth Ceballos. The EEOC also inquired about Mr. Guerra's interactions with a number of other Z Foods employees not named in EEOC charges; and asked questions regarding an off-site employee "hangout" where a former Z Foods female employee currently works.
It is entirely appropriate for the EEOC to investigate Guerra's sexual relationships with current and former employees to determine whether Z Foods supervisors engaged in a pattern and practice of sexual harassment. Not only are these questions directly relevant to the charges made against Guerra personally,*fn5 but the EEOC is entitled to information that "may provide a useful context" for its investigation. See generally EEOC v. Kronos Inc., 620 F.3d 287, 298 (3d Cir. 2010). To investigate allegations that women were subject to sexual harassment and/or assault by Z Foods supervisors, a good starting place was to inquire about the specific charges received and about any other current or former employees that engaged in a sexual relationship with the alleged harasser, Mr. Guerra. This includes a possible sexual relationship with a current employee, Ms. Ceballos, and a former employee now working at an off-site grocery store frequented by Z Foods employees. The latter employee was specifically mentioned by a third party during the EEOC's investigation and was formerly supervised by Mr. Guerra. All of these questions are relevant and material to the EEOC's investigation of a possible "pattern" of sexual harassment at Z Foods, see Shell Oil Co., 466 U.S. 54, 69-73 & fn. 26, but were refused on privacy grounds.
Mr. Guerra's responses to these questions will be enforced as to both current and former female employees not named in the EEOC charges.*fn6 Additionally, the answers to these questions, as presently framed and presented to the Court, have a tendency to prove or disprove the allegations advanced in this case. The EEOC is statutorily mandated to investigate and analyze allegations of sexual discrimination/harassment in the workplace and is given a wide berth to complete this function.*fn7 See 42 U.S.C. § 2000e-5(b); accord EEOC v. Shell Oil Co., 466 U.S. 54, 81 n. 38 ("judicial review of early phases of an administrative inquiry results in interference with the proper functioning of the agency and delays resolution of the ultimate question whether the Act was violated."). In Occidental Life Ins. Co. v. EEOC, 432 U.S. at 359, the Supreme Court recognized that "[t]he EEOC is  required to investigate the charge and determine whether there is reasonable cause to believe that it is true." Here, if the relationship has a logical connection to the workplace, e.g., if the individual was a former employee or the relationship was connected to past employment, it is relevant and material to the EEOC's investigation into an alleged pattern and practice of harassment against a class of women at Z Foods.
The case of Local 174, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. United States, 240 F.2d 387 (9th Cir. 1956) does not help Respondent. There, the IRS requested a general search of the papers and documents of the local union, not the individuals being investigated. The Ninth Circuit stated: "There was obviously no attempt to confine the demand to items which might be relevant or material to the taxes of the Brewsters [...] The Union was not itself subject to this investigation [...] It was not here a taxpayer whose books and records were within the jurisdiction of the agency." Id. at 391. Here there is no such issue. The individual, Mr. Guerra, has the ability and knowledge to respond to the EEOC's examination questions, without infringing on his corporate position/status (or the corporation itself). Additionally, unlike Local 174, this case does not involve a subpoena duces tecum or a demand for taxable transactions. Respondent's cited authority is factually distinguishable.
B. Right to Privacy & "Actual" EEOC Charges
Respondent rejoins that the EEOC's questioning imposed on Mr. Guerra's privacy rights, recognized in Griswold v. Connecticut, 381 U.S. 479 (1965) and its progeny.*fn8 It is unclear, however, how the penumbral rights recognized in Griswold impact the analysis at the administrative subpoena stage given the EEOC's broad investigative power and, more importantly, that Title VII makes it "unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding" under the Act. See 42 U.S.C. § 2000e-8(e). The EEOC is under a statutory mandate not to disclose information it gathers during its investigation;*fn9 there is no danger anyone but the EEOC will have access to the information Respondent seeks to protect.
Respondent's argument that the EEOC's investigation is limited to the individuals/allegations named in the actual EEOC charges is similarly flawed. Respondent is correct that the EEOC's investigating authority is closely connected with charges filed with the agency, thus its investigative powers are somewhat narrower than those of other government agencies. Indeed, a valid charge is a jurisdictional prerequisite to the Commission's issuing a valid subpoena. Still, the EEOC's investigative powers have been construed broadly, and "courts have generously construed the term 'relevant' and have afforded the Commission access to virtually any material that might cast light on the allegations against the employer." EEOC v. Shell Oil Co., 466 U.S. at 64-65, 68-69. In addition, "[a]ny violations that the EEOC ascertains in the course of a reasonable investigation of the Charging Party's complaint are actionable." General Telephone v. EEOC, 446 U.S. 318, 331 (1980).
On similar arguments, EEOC v. McCormick & Schmick's, No. C-07-80065-WHA, 2007 WL 1430004 (N.D. Cal. May 15, 2007), rejected Respondent's position that the EEOC's administrative subpoena sought irrelevant information. In particular, Respondent argued that the subpoena was limited to the "three positions" listed in the actual charge. The Court disagreed: investigating The Commissioner's respondent's charge makes hiring clear that the is front-of-the-house three practices EEOC inpositions in positions. are The specific not by way of the limitation. charge listed Accordingly, by way of example, subpoena to only three limiting the The EEOC is entitled those to positions is not warranted. front-of-the-house positions receive employment Commissioner than busperson. data for all did not choose to other The construed in that manner. to those specific positions, so the limit subpoena the investigation will not be Respondent restricted to further only non-management argues that the subpoena should be Again, respondent's contention is orbased hourly employees. cramped alleges reading of the Commissioner's on discrimination for charge. an overly all It positions. Furthermore, front-of-the-house front-of-the-house manager, de alleged Carvalho, that respondent a former discrimination retaliated against taking him place for at his respondent's opposition to racial Thus, the production of such information is appropriate. restaurants. The subpoena will not be limited to hourly positions, and respondent will be required to turn over employment data for front-of-the-house management positions.
Id. at 6 (emphasis added).
This language applies with equal force to the present facts because McCormick & Schmick, like this case, analyzed whether an administrative subpoena could be restricted to the positions and subject matter in the actual charges. Even if, arguendo, Respondent's position was legally sound, the EEOC's August 26, 2009 letter to Mr. Sagaser clarifies the scope and target of the inquiry: the "investigation pertain[s] to allegations of egregious sexual harassment, including, not limited to, sexual assault and rape, which occurred at Z Foods' Madera, California worksite, by at least one Z Foods employee during time periods both before and after Z Foods/Rustic Canyon Fontis Partners took over operations at the site." (Doc. 5-3, pg. 1.*fn10 ) Respondent and Mr. Guerra were on clear notice that the EEOC sought to investigate allegations of sexual harassment and related misconduct by supervisory employees at Z Foods, including and specifically Mr. Guerra.
C. Cancellation of Interview, Advance Interview Questions, Evidentiary Objections and Scope of Legal Representation
Respondent next argues that the subpoena cannot be enforced because the interview was unilaterally cancelled by the EEOC. The record makes clear, however, that the September 11, 2009 interview was cancelled due to Respondent's counsel's insistence on asserting privacy objections, not because the interview was completed. Respondent cites no legal authority, and the Court has found none, holding that an administrative agency must continue to notice and hold interviews if there is a complete breakdown of purpose and dialogue in the information gathering context. Rather, the legal avenue to address such circumstances is to file a motion to enforce the subpoena in the district court, which was done here.
There is a similar lack of legal precedent to require the EEOC to transmit the interview questions to opposing counsel before the interview. If there is any authority for such a mandate, it was not cited in Respondent's brief. An interviewer cannot anticipate in advance any and all questions they might ask; even if, arguendo, they could, it is likely that most, if not all, of the questions are protected work product. See generally Fed. R. Civ. Proc. 26(b)(1)-(3); see also Garcia v. City of El Centro, 214 F.R.D. 587, 591 (S.D. Cal. 2003)("the work product doctrine is intended  to guard against the divulging of attorney's strategies and legal impressions.").
Respondent's arguments concerning its evidentiary objections and the scope of Mr. Sagaser's legal representation were adequately addressed by the Magistrate Judge in the October 28, 2010 Order. That Order provides, in relevant part: [1.] the application should against to be argument objections to named on the merits The Court views the a complaint to the OSC bulk of Zoria's filed. This matter the at the investigation stage [...] is administratively and respondents statutorily be [2.] sentence January 2010 to in Sagaser's email is of Critical contained to the Court's Attorney reconsideration the 11): Esparza-Cervantes (Exhibit Guerra to the extent he is a 4, Doc. Elizabeth H to objections, 'I supervisor only represent of Z Foods. Francisco I do retained not represent as action by him with him respect an individual the and have not been initiated was by EEOC.' to subpoena enforcement his/Sagaser's seemingly in a position the to While Mr. Sagaser the questions advise more concerns with Mr. Guerra without about information posed, Sagaser might well it have appears to himself this Court conflict. placed in a position that Mr. of (Doc. 37 at 4:10-4:28.)
At this stage of the case, the Magistrate Judge's analysis is sufficient, however, Mr. Sagaser is requested to provide a clear statement of the scope and status of his representation. As explained by the Court during oral argument, Mr. Guerra, a current/former Z Foods employee, is entitled to unconflicted legal counsel during the EEOC's investigation into sexual harassment at Z Foods, particularly if the investigation involves activity or conduct that could impose liability against the employer, here Z Foods; or if there is an assertion that the conduct is outside the course and scope of employment.
The portion of the Magistrate Judge's Order excluding Respondent's counsel from further investigatory interviews is not supported by the record and is premature. The exclusion of counsel from all investigatory proceedings is tantamount to a disqualification. In this Circuit, "Courts  approach the issue of whether to disqualify opposing counsel as 'a drastic measure which courts should hesitate to impose except when absolutely necessary.'" Hacket v. Feeney, No. 2:09-cv-02075-RLH-LRL, 2010 WL 4102911, at 3 (D. Nev. Oct. 18, 2010)(citing Optyl Eyewear Fashion Int'l Corp. v. Style Cos., Ltd., 760 F.2d 1045, 1050 (9th Cir. 1985). Mindful of the EEOC's claim of obstructionist behavior, the Court finds that the disqualification standard applicable to district courts has not been satisfied. Any additional concerns in this context can be addressed by the special master, if one is appointed,*fn11 or pursuant to a motion filed in this Court.
D. Special Master
At oral argument, the parties requested that the Court appoint a special master to oversee their "investigatory" disputes. The Court agrees that appointing a special master will assist in effectively and expeditiously resolving the parties' dispute, specifically, the objections raised by Respondent's counsel during the interviews of Z Foods employees. For the reasons stated at the hearing and based on the parties' representations, the Court finds that there is a need for a special master in this case. It was, however, represented at oral argument that Mr. Guerra currently resides in Mexico, beyond the subpoena power of the district court. The parties are invited to make recommendations concerning the identity of the special master when and if the EEOC is able to obtain jurisdiction over Mr. Guerra.*fn12
E. Conclusion on the Merits As the EEOC has met its burden of relevance and materiality, see EEOC v. Federal Exp. Corp., 558 F.3d 842, 844-45 (9th Cir. 2009), the burden shifts to the respondent to prove that the subpoena is overbroad or unduly burdensome. It has not done so. Respondent does not contend that, e.g., compliance places a considerable financial or technological burden on Respondents or seriously threatens to disrupt or hinder the normal operation of a business. See generally EEOC v. Citicorp Diners Club, Inc., 985 F.2d 1036, 1040 (10th Cir. 1993). There are no facts/arguments to establish an undue burden under the relevant legal framework. Courts have held that parties subject to such investigatory subpoenas should expect to "lose some time and money complying with the administrative subpoena" and "respondent cannot expect compliance to be painless." McCormick & Schmick's, 2007 WL 1430004, at 7.
Respondent's motion is GRANTED only to the extent specifically described in this Memorandum Decision, otherwise, the motion is DENIED. Respondent has failed to show how the Magistrate Judge's order is either contrary to law or clearly erroneous.
For the reasons stated:
1. Respondent's motion for reconsideration of the October 28, 2010 Order is GRANTED only to the extent specifically described in this Memorandum Decision, otherwise, the motion is DENIED;
2. For the reasons stated at the hearing and based on the parties' representations, the Court finds that there is a need for a special master in this case. The parties are invited to make recommendations concerning the identity of the special master when and if the EEOC is able to obtain jurisdiction over Mr. Guerra, and to propose the terms and conditions of services by the special master.
3. Respondent's counsel is requested to provide a clear statement of the scope of his representation by March 15, 2010.
4. The EEOC is requested to provide a status update on the status of service of an administrative subpoena on Mr. Guerra.
Respondent shall submit a form of order consistent with, and within five (5) days following electronic service of, this Memorandum Decision.
IT IS SO ORDERED.