Attorney-Client Privilege Survives Failure to Follow Obscure EEOC Rule
March 1, 2000
An obscure EEOC rule governing investigative subpoenas requires that
employers must notify the EEOC within five days of service of the subpoena if
the employer objects to the request. In a recent case from the District of
Columbia Circuit, EEOC vs. Lutheran Social Services (D.C. Cir. 1999), the
EEOC sought access to a report prepared by attorneys for the employer,
summarizing the results of an investigation into alleged violations of Title VII
by its president. As a result of the law firm's investigation, the employer
terminated the president. Some 10 months later, the EEOC began investigating sex
discrimination claims against the employer and sought production of the report.
Two weeks after issuance of the subpoena by the EEOC, the employer retained
counsel who immediately objected to the subpoena.
The EEOC brought an action in district court for the purpose of requiring the
employer to comply with the subpoena. The EEOC argued that the employer waived
its claim that the report was protected by the attorney-client and work-product
privileges by failing to comply with the EEOC rule requiring subpoena recipients
to present any objections to the commission within five days of service.
The district court agreed with the EEOC and required the employer to turn
over its privileged documents. The appeals court, however, found that the agency
regulations concerning subpoenas were so obscure that the employer's failure to
object within the five days was excusable. The appeals court particularly noted
that at all times in its correspondence and communications with the EEOC, the
employer asserted the privilege.
Even though the appeals court in this case found that the privilege had not
been waived under the circumstances, employers should not rely on favorable but
costly rulings from an appeals court to protect privileged documents. Instead,
if an employer receives a subpoena from the EEOC, be prepared to act within five
days of service to assert any objections to producing the requested documents.
The fact that there was a strong dissent in the Lutheran Social Services case
indicates that other circuits and judges might not be as generous as the D.C.
Circuit in preserving the asserted privileges.
For more information please call Margaret Widman Dees at 1-888-688-8500.