*1 Before the Court is the Motion to Quash Subpoena (Doc. No. 24) filed by the non-party United States Equal Employment Opportunity Commission (“EEOC”), the response in opposition thereto filed by Defendant Alabama State University (Doc. No. 29), the reply in support of the motion filed by Plaintiff Amy Hinton (Doc. No. 30), and the reply in support of its motion filed by the EEOC (Doc. No. 32). The court held oral argument on the motion on March 5, 2020 (Doc. No. 31). Upon review of the motion, the responses thereto and the arguments from counsel, the court finds that EEOC's motion is due to be granted.

In November 2018, Plaintiff Amy Hinton (“Hinton”) filed this lawsuit under Title VII of the Civil Rights Act of 1964. (Doc. No. 1.) Hinton alleges that Defendant Alabama State University (“ASU”) discriminated against her based on race (Count One) and retaliated against her when she complained about discrimination (Count Two). (Doc. No. 1 at 8, 11.) On December 27, 2018, ASU filed an answer and a partial motion to dismiss seeking dismissal of Count Two, and the claims relating to hostile work environment and disparate treatment in the terms and conditions of employment alleged in Count One. (Docs. No. 5, 6.) ASU argued that Hinton did not exhaust her administrative remedies in regard to these claims because she failed to raise them in her EEOC Charge of Discrimination prior to filing her lawsuit. (Doc. No. 6 at 4.) Hinton opposed ASU's partial motion to dismiss arguing that the claims at issue were included in her EEOC intake questionnaire. (Doc. No. 11.) Notwithstanding the exhaustion argument, the court denied ASU's partial motion to dismiss as improvidently filed because ASU answered the Complaint prior to filing the Rule 12(b)(6) motion. (Doc. No. 15.)

ASU has not relented on its exhaustion argument and seeks to take the deposition of EEOC Investigator Andre Williams so that it can inquire into whether the agency investigated claims relating to Hinton's alleged hostile work environment, alleged disparate treatment in the terms and conditions of her employment, and alleged retaliation. EEOC opposes the taking of Investigator Williams' deposition on the grounds that (1) the subpoena creates an undue burden on the agency and wastes public resources; (2) the subpoena requests information that exceeds the scope of discovery permitted by Federal Rule of Civil Procedure 26(b)(1) because it seeks information that is privileged, irrelevant and not proportional to the needs of the case; and (3) the subpoena seeks the opinions held by an EEOC employee concerning the processing of charges or the decisions made by the agency which are protected from disclosure by the deliberative process privilege. (Doc. No. 24 at 2.)

ASU opposes the motion to quash arguing that it is not seeking any information concerning the deliberative process or any impressions of Investigator Williams and that it is only seeking “clarifying information” as to whether Hinton's EEOC intake questionnaire or her rebuttal statement “was treated” as an EEOC Charge of Discrimination.[1] (Doc. No. 29 at 3.) ASU relies on Little v. Auburn University, Case No. 3:08-cv-373-WKW-CSC, 2010 WL 582083 (M.D. Ala. Feb. 17, 2010) as support for its position that it is entitled to “clarifying, non-privileged information.” (Doc. No. 29 at 4-5.) ASU received a copy of the EEOC investigative file and asserts that said file does not contain any documentation that indicates whether the agency “treated” Hinton's intake questionnaire or her rebuttal statement as an EEOC Charge. (Doc. No. 29 at 4.) ASU also argues that the deposition of Investigator Williams is not wasteful or burdensome as the deposition could occur in Birmingham if EEOC so chooses and would not last more than two hours.[2] (Doc. No. 29 at 6.)

*2 Hinton supports the EEOC's motion to quash arguing that ASU is seeking testimony from Investigator Williams as to the scope of the agency investigation by questioning him on its deliberative process concerning her allegations and its investigation. (Doc. No. 30 at 2.) Hinton claims that this information is privileged information and not subject to discovery. (Id. at 3.) At oral argument, Hinton further argued that it was unduly burdensome to the EEOC to provide duplicative information as the EEOC investigative file contains the actions taken by Investigator Williams during the investigation and obtaining deposition testimony stating the same is a waste of resources. EEOC concurs with Hinton's arguments.

ASU's subpoena to testify at a deposition served on Investigator Williams was issued pursuant to Fed. R. Civ. P. 45. This court is responsible for ensuring that a “party or attorney responsible for issuing and serving a subpoena” takes “reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1); McMullen v. GEICO Indem. Co., No. 14-CV-62467, 2015 WL 2226537, at *2 (S.D. Fla. May 13, 2015). In appropriate cases, the court must quash or modify a subpoena upon timely motion on grounds stated in the rule. Fed. R. Civ. P. 45(d)(3)(A) (emphasis added). “The party seeking to quash a subpoena bears the burden of establishing at least one of the requirements articulated under Rule 45(d)(3).” Malibu Media, LLC v. Doe, No. 8:14-CV-2351-T-36AEP, 2015 WL 574274, at *3 (M.D. Fla. Feb. 11, 2015). As to undue burden under Rule 45(d)(3)(A)(iv), the Eleventh Circuit has stated

Jordan v. Comm'r, Mississippi Dep't of Corrections, 947 F.3d 1322, 1337 (11th Cir. 2020) (internal citations omitted).

The party seeking to enforce a subpoena bears the burden of demonstrating that the request is relevant. Fadalla v. Life Auto. Prods. Inc., 258 F.R.D. 501, 504 (M.D. Fla. 2007) (citations omitted). “The scope of discovery that may be sought through a Rule 45 non-party subpoena is the same permissible scope under Federal Rule of Civil Procedure 26(b).” Stevenson v. Johnson Bros. Corp., Case No. 2:18-cv-1702-RDP, 2019 WL 108371, at * 2 (N.D. Ala. March 7, 2019). Rule 26(b) provides in pertinent part that

Fed. R. Civ. P. 26(b). Discovery is subject to the limitations set forth in Rule 26(b)(2)(C) which provides in relevant part:

Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii).

Without citing Rule 45, EEOC premises its motion to quash on two grounds: (1) the subpoena creates an undue burden on the agency and wastes public resources which falls under Rule 45(d)(3)(A)(iv); and (2) the subpoena seeks the opinions held by an EEOC employee that are protected from disclosure by privilege which falls under Rule 45(d)(2)(A)(iii). Likewise, without citing Rule 26(b)(2)(C), EEOC argues that the subpoena should be quashed because it requests information that exceeds the scope of discovery permitted by Rule 26(b)(1) by seeking information that is privileged, irrelevant and not proportional to the needs of the case.

ASU seeks to ask Investigator Williams about his “treatment” of Hinton's EEOC intake questionnaire and rebuttal statement. At oral argument, ASU stated that it is trying to obtain evidence from Investigator Williams as to whether he investigated the claims in Hinton's intake questionnaire and rebuttal statement, which arguably include more allegations of discrimination than her EEOC Charge. ASU argued at oral argument that the investigative file produced by the EEOC is silent in regard to the claims at issue thus it is seeking testimony from Investigator Williams that will establish whether he “treated” the relevant documents as an EEOC Charge and investigated the claims alleged in the relevant documents. ASU contends that it seeks only non-privileged information from Investigator Williams and that EEOC can object during the deposition to any questions posed by ASU that are subject to privilege.

The deliberative process privilege protects “the decision making processes of government agencies.” NLRB v. Sears Roebuck & Co., 421 U.S. 132, 150 (1975). The relevant inquiry when examining applicability of the privilege is whether “disclosure of materials would expose an agency's decision-making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions.” Assembly of State of Cal. v. U.S. Dep't of Commerce, 968 F.2d 916, 920 (9th Cir. 1992) (citation omitted). “Predecisional materials are privileged “to the extent that they reveal the mental processes of decision-makers.” Id. (citation omitted). “Factual materials, however, would likewise be exempt from disclosure to the extent that they reveal the mental processes of decisionmakers.” Nat'l Wildlife Fed'n v. U.S. Forest Serv., 861 F.2d 1114, 1119 (9th Cir. 1988). “[W]henever the unveiling of factual materials would be tantamount to the ‘publication of the evaluation and analysis of the multitudinous facts’ conducted by the agency, the deliberative process applies.” Id. at 1119 (citation omitted).

ASU's arguments create a double-edged sword that proves fatal for its subpoena. To the extent Investigator Williams investigated the claims at issue and such investigation is included in the EEOC investigative file that was provided to ASU, his deposition testimony runs afoul of Rule 26(b)(2) as it would be cumulative and duplicative of the information provided in the investigative file.[3] See EEOC v. Unicom Elec., Inc., CV 02-6937-CAS(JTLx), 2003 U.S. Dist. LEXIS 28900 (C.D. Cal. Feb. 18, 2003) (granting motion to quash subpoena to depose EEOC investigator as duplicative because EEOC turned over the investigation file). On the other hand, to the extent Investigator Williams did not investigate the claims at issue -- which is why the EEOC investigative file is silent regarding these claims -- his deposition testimony undoubtedly would require revealing information about the agency's deliberative process, such as its analysis of the information obtained, its evaluation of the evidence, the personal opinions of EEOC representatives, and the decision-making process of the EEOC. See e.g., EEOC v. Venator Group, 99 Civ. 4758 (AGS), 2000 U.S. Dist. LEXIS 12153 (S.D.N.Y. July 10, 2000) (not allowing deposition of EEOC investigator on the grounds that defendant had not presented a reason why doing so was likely to lead to additional evidence that had not already been turned over and the deposition would be complicated by difficult objections regarding the deliberative process privilege).

*4 Further, EEOC's argument that the deposition places an undue burden on the nonparty agency is compelling. See Evans v. F.W. Woolworth Co., No. 97-4320-CIV, 1998 WL 811790, at *1 (S.D. Fla. Oct. 22, 1998) (“The best evidence of the factual information regarding the investigation is in the non-privileged documents in the charge file, not the testimony of [the EEOC investigator]. Thus, compelling the deposition testimony of the EEOC's investigator, a non-party, is an undue burden on the EEOC's limited resources.”)

Finally, the court finds that ASU's reliance on Little v. Auburn University is misplaced. In Little, the EEOC sought to quash a subpoena seeking a deposition of a principal case investigator because, inter alia, the information known to the investigator was protected by the deliberative process privilege, and because all necessary information, including notes and other documentation taken by the investigator during the investigation, had already been produced in discovery. Little, 2010 WL 582083 at *1. The court found that because the defendant sought to clarify factual information contained in the EEOC's investigative file, by asking questions about ambiguous references in the documents and illegible handwritten notations in the file, the deliberative process privilege did not apply and the deposition should go forward. Id. (emphasis added). In contrast to Little, ASU has made no argument that the investigative file produced by the EEOC require any factual clarification or contain any ambiguity. Indeed, ASU is not seeking discrete factual clarifications alike those sought in Little. Rather, ASU is seeking deposition testimony based upon the absence of facts in the investigative file. Consequently, Little provides no support for such relief.

Accordingly, the court concludes that ASU is not entitled to depose Investigator Williams because the interests served by quashing the subpoena clearly and greatly outweigh the interests served by enforcing it. The court therefore must quash the subpoena under Rule 45(d)(3)(A)(iv) because enforcement would unduly burden EEOC.

For the foregoing reasons, it is hereby

ORDERED that the Motion to Quash Subpoena (Doc. No. 24) filed by EEOC is GRANTED and the subpoena issued to nonparty EEOC is QUASHED.

DONE this 13th day of March, 2020.