*1 Pending before the Court is Plaintiff U.S. Equal Employment Opportunity Commission's (“EEOC”) Motion to Quash Subpoenas and for a Protective Order (“Motion”). Dkt. No. 139. The EEOC moves to quash subpoenas issued by Defendant Justin Vineyards & Winery LLC (“Justin”) for a Rule 30(b)(6) deposition of the EEOC and for a deposition of former EEOC Investigator Richie Quinteros. Id. The Motion is supported by a Local Rule 37-2 Joint Stipulation, Dkt. No. 139-1, a declaration of EEOC counsel, Dkt. No. 139-2, and a declaration of the EEOC Chair, Dkt. No. 139-3. The Court previously granted the EEOC's ex parte application to shorten the time to hear the Motion because it was unopposed by Justin as to the requested relief. Dkt. No. 142. The Court finds the matter suitable for decision without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15. As set forth below, the Court GRANTS the EEOC's Motion.

I. Threshold Issues[1]

The Court is not persuaded by the EEOC's arguments regarding the untimeliness of the deposition subpoenas. Although the subpoenas were not issued until six weeks before the discovery cut-off, Defendants Justin and The Wonderful Company LLC (collectively, “Defendants”) explain that they formally requested dates for the depositions and requested a time to meet and confer about the topics on October 3, 2024, which was over 10 weeks prior to the discovery cut-off. It appears that there was a delay in presenting the issue to the Court because the EEOC insisted that all disputes be raised together. See Joint Stip. at 11-12. The Court has already agreed to shorten the time to hear the dispute. Dkt. No. 142. The Court therefore will not grant or deny relief based on timeliness.

As to the EEOC's argument that the depositions exceed the limit, the depositions to date have been of the claimants. These two additional depositions are of the EEOC itself and its investigator. The Court finds that to the extent the depositions are within the scope of Rule 26(b)(1) and (2), the fact that Defendants have exceeded the deposition limit because they deposed all claimants should not preclude these two additional depositions. The Court will turn to the substance of the discovery dispute.

II. Deposition Subpoenas

A. Asserted Privileges

The EEOC asserts the deliberative process privilege and the attorney work product privilege in response to the deposition subpoenas, along with other objections.

The deliberative process privilege “permits the government to withhold documents that reflect advisory opinions, recommendations and deliberations comprising part of a process by which government decisions and policies are formulated.” FTC v. Warner Commc'ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). “It was developed to promote frank and independent discussion among those responsible for making governmental decisions, and also to protect against premature disclosure of proposed agency policies or decisions.” Id. To be protected, materials must be predecisional—it must have been generated before the adoption of an agency's policy or decision—and it must be deliberative—containing opinions, recommendations, or advice about agency policies. Id. Because the privilege is qualified, “[a] litigant may obtain deliberative materials if his or her need for the materials and the need for accurate fact-finding override the government's interest in non-disclosure.” Id. Here, the EEOC has supported the assertion of the deliberative process privilege as to Topics 1-6 and 8-29 with a declaration of its Chair. Dkt. No. 139-3.

*2 The application of the work product doctrine in federal court is determined under federal law. See Arfa v. Zionist Organization of America, No. CV 13-2942 ABC (SS), 2014 WL 815496, at *2 n.3 (C.D. Cal. Mar. 3, 2014); Kandel v. Brother Intern. Corp., 683 F. Supp. 2d 1076, 1083 (C.D. Cal. 2010). The federal work product doctrine is set forth in Federal Rule of Civil Procedure 26 (“Rule 26”). Rule 26(b)(3) provides that “[o]rdinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.” Fed. R. Civ. P. 26(b)(3)(A). But materials constituting work product may be discovered if they are otherwise discoverable under Rule 26(b)(1), and the requesting party “shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A). If a court orders discovery of work product, it must protect against disclosure of opinion or absolute work product, which consists of “the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B).

The Court agrees with Defendants that a blanket protective order is not appropriate. However, there are multiple areas of questioning that would wade into privileged material. Courts have granted the EEOC protective orders where there was little or no relevant non-privileged information sought by deposition topics. See, e.g., EEOC v. Evans Fruit Co., Inc., No. CV-10-3033-LRS, 2012 WL 442025, at *1 (E.D. Wash. Feb. 10, 2012) (finding 20 broad and wide-ranging categories of inquiry effectively sought information regarding EEOC's interpretation or evaluation of how particular facts support or refute the EEOC's allegations). Even where courts have denied protective orders or granted motions to compel, they generally permitted the EEOC to assert privilege on a question-by-question basis. See, e.g., EEOC v. Kaplan Higher Educ. Corp., No. 1:10 CV 2882, 2011 WL 2115878, at *2-4 (N.D. Ohio May 27, 2011); EEOC v. Albertson's LLC, No. CIVA06CV01273WYDBNB, 2007 WL 1299194, at *2 (D. Colo. May 1, 2007). Thus, while the privileges do not justify a blanket protective order without considering the specific deposition topics at issue, they are important limitations to the scope of discovery under Federal Rule of Civil Procedure (“Rule”) 26(b)(1) in determining whether the EEOC should be granted a protective order under Rule 26(c). The Court turns to the deposition topics that remain at issue.[2]

B. Rule 30(b)(6) Deposition Notice Topic Nos. 4, 6, 8

Topic No. 4: The EEOC's investigation of JUSTIN as a result of the EEOC charge filed by Patricia Verduzco on June 12, 2018.

Topic No. 6: Actions taken by the EEOC to determine the veracity of statements provided by former and current employees of JUSTIN alleging sexual discrimination, harassment and/or retaliation.

Topic No. 8: The conclusions in support of the EEOC's letter of determination to JUSTIN and TWC dated January 11, 2022.

The Court grants the EEOC's Motion as to these topics because they are cumulative to discovery that has been provided already, they potentially encompass privileged materials, and Defendants have not shown what non-privileged and relevant information they can solicit from the deposition that they do not already have.

Topic Nos. 4 and 6 seek information regarding the EEOC's investigation. The broad wording of these topics would likely encompass predecisional and deliberative material that is protected by the deliberative process privilege. Defendants do not dispute that the EEOC has produced its investigative file in this action or that they have deposed all claimants. Defendants do not adequately argue what additional non-privileged information they could solicit from a deposition of the EEOC on these topics. In many of the cases permitting questioning on the EEOC's investigation, the defendants made a showing that there were factual ambiguities that needed to be clarified or that they were unable to seek relevant and non-privileged discovery from other sources. For example, in EEOC v. Airborne Express, No. CIV. A. 98-1471, 1999 WL 124380 at *2 (E.D. Pa. Feb. 23, 1999), the court allowed a deposition where the defendant made a reasonable showing that at least some of what it sought was relevant factual information that was not apparently otherwise available because the charging individual was purported to be unable to recall basic information. Id. Similarly, in EEOC v. California Psychiatric Transitions, 258 F.R.D. 391 (E.D. Cal. 2009), the defendant pointed to ambiguities as to whether certain questions identified in interview summaries were actually asked of witnesses, whether the responses were recorded accurately, and other factual disputes. Id. at 396 & n.1. And in EEOC v. Riverview Animal Clinic, P.C., 2:09-cv-1950-AKK, 2010 WL 11562045 (N.D. Ala. Apr. 1, 2010), the court denied the EEOC's motion for protective order because the charging individual testified that she could not remember the persons she talked to at the EEOC or what she told them, and there was a conflict between the individuals' deposition testimony and the statements in the EEOC charge. Id. at 2. Here, Defendants have not pointed to any specific factual ambiguities or contradictions that they would attempt to clarify in a deposition.

*3 Additionally, it appears that through these topics, Defendants seek to question the EEOC on its pre-litigation actions to determine the sufficiency of its investigation. As many courts have found, this is not a relevant inquiry. See, e.g., EEOC v. Nat'l R.R. Passenger Corp., No. C15-1269-RSM, 2016 WL 3655269, at *4 (W.D. Wash. July 8, 2016) (denying discovery where defendant was seeking information it already had or information to attack sufficiency of EEOC's pre-suit investigation); EEOC v. Gold River Operating Corp., No. 2:04-cv-01349-LRL, 2007 WL 983853, at *7-8 (D. Nev. Mar. 30, 2007) (finding that “[i]nasmuch as the sufficiency of the EEOC's investigation is not litigable, the answers to these questions are not relevant”); EEOC v. Sun Cab Co., Inc., No. CV-S-03-1230-KJD-(RJJ), 2004 WL 7089349, at *1 (D. Nev. June 15, 2004) (finding investigation leading up to letter of determination was not relevant and denying depositions).

As to Topic No. 8, the express wording of the topic appears to encompass agency opinions and conclusions that pre-date the issuance of the letter of determination. To the extent the conclusions are included in the letter of determination, Topic No. 8 is cumulative to the letter of determination. Defendants state that they will restrict questions under this topic to “facts upon which the conclusions were based.” Joint Stip. at 29. However, this purported compromise entirely rewrites the topic, which expressly asks for conclusions and not facts. Even if the Court were to consider Defendants' alternative language, the Court finds that Defendants are still essentially seeking information that is privileged under the deliberative process privilege or protected by the attorney work product doctrine as explained in the next section.

C. Rule 30(b)(6) Deposition Notice Topic Nos. 21-27

Topic No. 21: Factual information and documents that support or rebut the EEOC's allegation in the Complaint that Defendants “unlawfully subjected a class of aggrieved individuals to sexual harassment, including a hostile work environment based on their sex (female), constructive discharge, and/or retaliation for opposing unlawful employment practices in violation of Title VII.” For the avoidance of doubt, this Category does not seek attorney work product.

Topic No. 22: Factual information and documents that support or rebut the EEOC's allegation in the Complaint that “Despite having actual and constructive notice of the harassment herein, Defendants failed and refused to take prompt and appropriate action to stop the harassment and the resulting hostile work environment.” For the avoidance of doubt, this Category does not seek attorney work product.

Topic No. 23: Factual information and documents that support or rebut the EEOC's allegation in the Complaint that “Defendants did not properly handle the complaints made by aggrieved employees.” For the avoidance of doubt, this Category does not seek attorney work product.

Topic No. 24: Factual information and documents that support or rebut the EEOC's allegation in the Complaint that “Defendants failed to properly investigate and respond to complaints, discouraged additional complaints from being made, and failed to implement necessary remedial measures to end the harassment.” For the avoidance of doubt, this Category does not seek attorney work product.

Topic No. 25: Factual information and documents that support or rebut the EEOC's allegation in the Complaint that “In response to some complaints, Defendants' Human Resources made accusations against the accusers or blamed victims for the harassment. Defendants' managers also disbelieved complainants and discouraged employees from reporting to Human Resources.” For the avoidance of doubt, this Category does not seek attorney work product.

*4 Topic No. 26: Factual information and documents that support or rebut the relief sought by the EEOC in this action, including but not limited to injunctive relief and damages. For the avoidance of doubt, this Category does not seek attorney work product.

Topic No. 27: Factual information and documents that support or rebut the claims of any CLAIMANT or putative class member in this action as referenced in the Complaint. For the avoidance of doubt, this Category does not seek attorney work product.

Although couched as seeking facts, the Court finds that these topics seek privileged information regarding the decision-making process of the EEOC or compilations of facts by the EEOC's attorneys. See EEOC v. McCormick & Schmick's Seafood Restaurants, Inc., No. WMN-08-CV-984, 2010 WL 2572809 (D. Md. June 22, 2010) (finding that deposition topics seeking factual information and documents that support or rebut the EEOC's allegations asked for EEOC counsel's interpretation of facts and how EEOC had chosen to proceed in its case); EEOC v. Venator Grp., No. 99 Civ. 4758 (AGS), 2000 WL 1059033, at *2 (S.D.N.Y. Mar. 27, 2000) (denying depositions because “factual” issues supporting the EEOC's allegations would be protected work product and requested material fell under the deliberative process privilege as the demands related to the rationale behind EEOC's decisions).

Defendants repeat several times that facts are not privileged. Although this is true, it does not appear that the proposed deposition topics are merely seeking underlying facts. Rather, it appears that Defendants are seeking the EEOC's ordering of proof and collection of facts that it intends to use to support certain claims or allegations. Such selection and compilation of relevant facts reflects work product. See, e.g., EEOC v. HBE Corp., 157 F.R.D. 465, 467 (E.D. Mo. 1994) (granting EEOC's motion for protective order where the defendant asserted that it was seeking to explore the factual bases of claims made by EEOC because the selection and compilation of relevant facts is at the heart of the work product doctrine); EEOC v. Am. Int'l Grp., Inc., No. 93 CIV. 6390 (PKL) RLE, 1994 WL 376052, at *2-3 (S.D.N.Y. July 18, 1994) (upholding the EEOC's objections regarding the area of inquiry of “allegations in the complaint” because the EEOC provided the investigative file and work product includes an attorney's intended lines of proof and ordering of facts). But see EEOC v. Bank of Am., No. 2:13-CV-1754-GMN-VCF, 2014 WL 7240134, at *4-5 (D. Nev. Dec. 18, 2014) (rejecting the EEOC's argument that topics seeking facts supporting the EEOC's allegations set forth in the complaint sought privileged information because facts are never privileged).

Defendants also argue that these topics were drafted to echo topics permitted in EEOC v. Sunshine Raisin Corp., No. 1:21-cv-01424-JLT-HBK, 2023 WL 5596004 (E.D. Cal. Aug. 29, 2023). In the cited case, the magistrate judge found that the EEOC could not categorically refuse to produce a Rule 30(b)(6) deponent. Id. at *2. The court permitted a deposition on topics that sought factual information and documents that support or rebut claims and remedies in the complaint. Id. The court acknowledged that various courts ruled differently and that the EEOC could interpose objections as appropriate. Id. at *3. As acknowledged by Defendants, certain portions of this order were overturned by the district judge. See EEOC v. Sunshine Raisin Corp., No. 1:21-cv-01424-JLT-HBK, 2023 WL 7926209 (E.D. Cal. Nov. 16, 2023). Although the district judge did not overturn the portion of the order that addressed deposition topics similar to those set forth here, the district judge had strong doubts as to whether there was any non-privileged information responsive to the categories. Id. at *2. Thus, while this case is an example of a court permitting a deposition to proceed on similar deposition topics, it is not strong support for Defendants' position that it would be able to obtain relevant non-privileged information based on these topics of inquiry.

*5 Defendants argue that the reason they are pursuing these topics is that when a claimant would directly contradict written discovery provided by the EEOC, EEOC's counsel would claim that there was no contradiction. Joint Stip. at 36. However, Defendants have not pointed to the actual purported contradictions that Defendants seek to clarify in the deposition, and how they relate to the topics set forth here.

Finally, the Court observes that other courts have found similar inquiries to be more appropriately pursued through contention interrogatories. See Am. Int'l Grp., 1994 WL 376052, at *2-3 (finding inquiries into allegations of the complaint should be pursued through contention interrogatories); see also EEOC v. Army Sustainment, LLC, No. 1:20-cv-00234-RAH-SRW, 2021 WL 6884912, at *3-12 (M.D. Ala. Oct. 25, 2021) (granting in part and denying in part the EEOC's motion for protective order, but only requiring the EEOC to provide written responses to certain topics); Adamson v. Pierce Cnty., No. 3:21-cv-05592-TMC, 2023 WL 7280742, at *5 (W.D. Wash. Nov. 3, 2023) (finding contention interrogatories more appropriate where a party seeks to use a Rule 30(b)(6) deposition to explore facts underlying legal claims and theories asserted by opposing party). Thus, a reasonable compromise to resolve the parties' dispute as to these deposition topics may have been to convert them into contention interrogatories. Unfortunately, there is insufficient time remaining in the discovery period for the Court to order such a resolution, absent an extension of the discovery cut-off.

D. Rule 30(b)(6) Deposition Notice Topic No. 30

Topic No. 30: The EEOC's initial disclosures and discovery responses, including interrogatories, in this litigation.

The EEOC objects to this topic because it requires nothing short of a deposition of EEOC trial counsel given that counsel prepared the documents and verified the EEOC's interrogatory responses. Joint Stip. at 37-38.

Depositions of opposing trial counsel are disfavored. See, e.g., Iovino v. Am Trust Fin. Servs., Inc., No. 2:22-cv-01974-APG-NJK, 2024 WL 4132729, at *2 (D. Nev. Sep. 9, 2024); Monster Energy Co. v. Vital Pharm., Inc., No. 5:18-cv-01882-JGB (SHKx), 2020 WL 2405295, at *6 (C.D. Cal. Mar. 10, 2020). In the Ninth Circuit, there are at least two competing standards for determining the propriety of deposing opposing counsel. See Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986) (holding that opposing trial counsel may be deposed only “where the party seeking to take the deposition has shown that (1) no other means exist to obtain the information than to depose opposing counsel ... ; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case”); In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 72 (2d. Cir. 2003) (applying a “flexible approach to lawyer depositions,” which takes into consideration “the need to depose the lawyer, the lawyer's role in connection with the matter on which discovery is sought and in relation to the pending litigation, the risk of encountering privilege and work-product issues, and the extent of discovery already conducted”). However, courts have found that the two approaches are only “slightly different,” and both create a presumption against such depositions. Monster Energy, 2020 WL 2405295, at *8.

Here, Defendants do not dispute that Topic No. 30 essentially requests a deposition of the EEOC's trial attorney. See Joint Stip. at 39 (“But in choosing to have its trial attorney verify discovery responses, the EEOC opened the door for its trial attorney to be deposed regarding the bases of the responses therein as requested in Topic 30.”). At least one district court in the Ninth Circuit has found that an attorney verification of interrogatory responses cannot serve as a basis for a defendant's desire to depose a Rule 30(b)(6) witness about the contents of the entirety of those responses. Sierra Club v. BNSF Railway Co., NO. C13-0967-JCC, 2016 WL 4528452, at *4 (W.D. Wash. Aug. 30, 2016); see also Sunshine Raisin Corp., 2023 WL 7926209, at *3 (finding protective order justified as to two topics that sought testimony about the contents of the EEOC's initial disclosures and documents produced by the EEOC either pursuant to its Rule 26 obligations or in response to written discovery requests). Moreover, Defendants do not apply any standard for deposing trial counsel of an opposing party. The Court finds that Defendants have not shown the propriety of Topic No. 30, which would amount to a deposition of opposing trial counsel.

E. Deposition of Mr. Quinteros

*6 According to the EEOC, Defendants have represented that they would focus primarily on the investigation of Justin, the interviews Mr. Quinteros conducted, his interview notes, and any other actions taken by him prior to the EEOC filing this case. Joint Stip. at 41. Defendants further clarified that they would also like to ask about Mr. Quinteros' background, such as his education and previous employment. Id.

Defendants have not set forth how the deposition of Mr. Quinteros would yield relevant non-privileged information that Defendants do not already have. Courts have denied depositions of EEOC investigators where the EEOC had already produced all non-privileged information from the investigative file and the defendant cited no facts to suggest that there was withholding of non-privileged information. See, e.g., EEOC v. Pioneer Hotel, Inc., No. 2:11-cv-01588-LRH-GWF, 2014 WL 7653921, at *11 (D. Nev. Sept. 30, 2014) (finding defendant should not be permitted to depose EEOC investigators regarding adequacy of their investigation or pre-suit conciliation process and noting that defendant had not identified particular factual issues regarding the EEOC's investigation that reasonably required clarification through depositions of the investigators); EEOC v. Pinal Cnty., 714 F. Supp. 2d 1073, 1078 (S.D. Cal. 2010) (denying deposition of investigator where the defendants made no argument that the investigative files produced by the EEOC required any clarification or contained any ambiguity); EEOC v. Unicom Elec., Inc., , CV 02-6937-CAS (JTLx), 2007 WL 9359941, at *1-2 (C.D. Cal. Mar. 9, 2007) (granting motion to quash deposition subpoena of EEOC investigator because defendant had not shown what new or additional information it sought to obtain that it did not already have). As explained above, Defendants have not shown that they need to clarify any ambiguities in the investigative file or inconsistencies between the investigative file and the claimants' testimony. Additionally, as set forth above, courts have denied depositions where the defendant was seeking information to attack the sufficiency of the EEOC's pre-suit investigation as irrelevant.

In sum, the Court grants the EEOC's motion to quash Defendants' deposition subpoenas for a Rule 30(b)(6) deposition and for a deposition of Mr. Quinteros. In doing so, the Court is not suggesting that the EEOC is entitled to a blanket protective order for depositions of itself or its investigators. Rather, given the deposition topics at issue and the arguments set forth in the Joint Stipulation, the Court finds that Defendants are unlikely to elicit much, if any, relevant non-privileged information from the depositions that they do not already have. Although the Court could permit the depositions to proceed, it would likely result in the EEOC objecting to most of the questions based on a privilege. Many of those objections would likely be upheld for the reasons set forth above. Thus, it is not in the interests of the Court or the parties for the Court to direct such depositions to proceed. See Evans Fruit Co., 2012 WL 442025, at *4 (quashing deposition instead of allowing deposition to proceed with EEOC reserving right to object based on privilege because “[t]his would be an inefficient use of the parties' time and the court's time”).

IT IS SO ORDERED.