_____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________________________________ No. 06-____ Civ. A. No. 2:04-cv-322 ____________________________________________ In re EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner (EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. AGRO DISTRIBUTION, LLC, Defendant.) ___________________________________________________ PETITION FOR A WRIT OF MANDAMUS TO THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI ___________________________________________________ RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel ELIZABETH E. THERAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4720 TABLE OF CONTENTS TABLE OF AUTHORITIES ii JURISDICTION 1 NATURE OF THE CASE 1 THE CHALLENGED ORDER 2 RELIEF SOUGHT 4 ISSUES PRESENTED 4 STATEMENT OF FACTS 4 REASONS WHY THE WRIT SHOULD ISSUE. . . . . . . . . . . . 7 I. THE DISTRICT COURT EXCEEDED ITS AUTHORITY BY PERMITTING DISCOVERY OF COMMUNICATIONS BY COMMISSION ATTORNEYS RELATING TO LITIGATION IN CLEAR VIOLATION OF THE ATTORNEY-CLIENT PRIVILEGE AND THE ATTORNEY WORK PRODUCT PRIVILEGE. . . . . . . . . . . . . . . . . . . . . .9 A. The Materials at Issue Clearly Fall Within the Scope of the Attorney- Client and the Attorney Work Product Privileges.. . . . . . 9 B. The Crime-Fraud Exception Does Not Apply. . . . . . 11 II. THE DISTRICT COURT EXCEEDED ITS AUTHORITY BY PERMITTING DISCOVERY OF INFORMATION RELATING TO THE COMMISSION'S INTERNAL DELIBERATIONS IN DECIDING WHETHER TO SUE AGRO, IN CLEAR VIOLATION OF THE DELIBERATIVE PROCESS PRIVILEGE.. . . . . . . . . . . . . . . . . . . . . . . . 15 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . 18 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . 19 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . 20 TABLE OF AUTHORITIES CASES Branch v. Phillips Petroleum Co., 638 F.2d 873 (5th Cir. 1981). . . . . . . . . . . . . . . . . . . . . . .16 Cheney v. United States District Court for the District of Columbia, 542 U.S. 367 (2004). . . . . . . . . . . . . . . . . . 7 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) . . 17 Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C. Cir. 1980). . . . . . . . . . . . . . . . .9 Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (2001). . . . . . . . . . . . . . . . . . 15 In re Avantel, 343 F.3d 311 (5th Cir. 2003). . . . . . 8 In re Burlington Northern, Inc., 822 F.2d 518 (5th Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . 8 In re Equal Employment Opportunity Commission , 709 F.2d 392 (1983). . . . . . . . . . . . . . . . . . . . .2 In re Grand Jury Subpoena, 419 F.3d 329 (5th Cir. 2005) passim In re Int'l Sys. & Controls Corp. Securities Litigation, 693 F.2d 1235 (5th Cir. 1982). . . . . . . . . . . . 11, 14 In re Lindsey, 148 F.3d 1100 (D.C. Cir. 1998). . . . . . 9 In re Papandreou, 139 F.3d 247 (D.C. Cir. 1998). . . . . . 8-9 In re Reyes, 814 F.2d 168 (5th Cir. 1987). . . . . . . . . . .8 In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997). . . . .16, 17 In re United States, 397 F.3d 274 (5th Cir. 2005). . . . . 7, 8 Industrial Clearinghouse, Inc. v. Browning Manuf. Div. of Emerson Elec. Co., 953 F.2d 1004 (5th Cir. 1992). . . . . . . . . . . . 14 NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975). . . . 15, 16 Roche v. Evaporated Milk Ass'n, 319 U.S. 21 (1943). . . . . . 1 Schlagenhauf v. Holder, 379 U.S. 104 (1964). . . . . . 2 Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997). . . . . . 9 United States v. Blakley, 250 F.3d 744, 2001 WL 274766 (5th Cir. 2001) (unpublished). . . . . . . . . . . . . . . . . . . . . . . . 13 United States v. Denson, 603 F.2d 1143 (5th Cir. 1979) 8 United States v. Edwards, 303 F.3d 606 (5th Cir. 2002) 12 United States v. Zolin, 491 U.S. 551 (1989). . . . . . 9, 12 Upjohn Co. v. United States, 449 U.S. 383 (1981). . . . . . 10 STATUTES 28 U.S.C. § 1291. . . . . . 1 28 U.S.C. § 1651. . . . . . 1 42 U.S.C. § 12101. . . . 1, 5 OTHER AUTHORITIES Fed. R. App. P. 21(a). . . . . . 1 Fed. R. Civ. P. 26(b)(3). . 13, 14 8 Charles Alan Wright et al., Federal Practice & Procedure § 2026 (2d ed. 1987). . . . . . . . . . . . . . . . . . . . . . . . 10 JURISDICTION Pursuant to 28 U.S.C. § 1651 and Rule 21(a) of the Federal Rules of Appellate Procedure, Petitioner Equal Employment Opportunity Commission respectfully requests this Court to grant this petition for a writ of mandamus to the United States District Court for the Southern District of Mississippi (Hon. Keith Starrett). This Court has jurisdiction over the Commission's petition because it would have jurisdiction over a final judgment in the action below under 28 U.S.C. § 1291. See Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 25 (1943). NATURE OF THE CASE This case presents issues of critical importance to effective federal law enforcement. Petitioner is a federal law enforcement agency charged by Congress to investigate violations of federal law, pursuant to a detailed and explicit administrative scheme prescribed by statute. Respondent, Agro Distribution, LLC ("Agro"), is the defendant in an enforcement action alleging that it violated the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq., when it failed to reasonably accommodate and then discharged an employee because of his disability. In this suit, the district court has ordered the deposition of Prisca DeLeonardo, one of the EEOC's own attorneys who was assigned to the case, and the disclosure of internal EEOC documents that are at the very heart of the agency's deliberative process and are plainly subject to the attorney-client and work product privileges. There is every reason to believe that the issues raised in this petition will persist or recur in this litigation, and unless this petition is heard, there may be no review of these issues until a final judgment is entered. This is, as demonstrated below in detail, an extraordinary case, calling for the exercise of this court's supervisory powers. See, e.g., Schlagenhauf v. Holder, 379 U.S. 104, 111- 12 (1964); In re Equal Employment Opportunity Commission, 709 F.2d 392, 394- 95 (1983). THE CHALLENGED ORDER The district court denied the EEOC's Motion for Protective Order, ruling that Agro was entitled to discover information concerning communications among Commission attorneys relating to the agency's decision to bring suit against Agro. The court further ruled that the information was relevant and that Agro was entitled to inquire into an EEOC attorney's reasons for believing that her supervisor omitted material facts in his report to the Office of General Counsel recommending litigation against Agro. In a brief written order, the district court ordered the Commission to "furnish to the Defendant a copy of the submissions that were submitted to the Office of General Counsel in preparation for submission to the full Commission" - documents that the defendant had never even sought to discover in connection with its subpoena or at any other time.<1> The Commission has no adequate remedy, by direct appeal or otherwise, for the district court's continuing, unauthorized intrusion into its deliberative process. The Commission seeks mandamus to ensure that this Court has the opportunity to exercise appellate jurisdiction over the district court's disruption of the agency's administrative and deliberative processes. If Agro is permitted to force the disclosure of the confidential and privileged information sought here, both the Commission and the public interest will be immediately harmed in ways not correctable on appeal from a final judgment. Further, the district court's ruling that some exception to the attorney-client privilege applies to the communications at issue here is unprecedented and clearly erroneous as a matter of law. The precise basis for these contentions is set forth below. RELIEF SOUGHT The Commission requests this Court to issue a writ of mandamus and order the district court to: 1. Vacate the district court's order requiring the deposition of Ms. DeLeonardo and the disclosure of the agency's privileged documents to defense counsel; 2. Grant the EEOC's Motion for Protective Order; and 3. Enjoin further discovery by Agro of matters pertaining to the Commission's internal deliberations with respect to this or any other case. ISSUES PRESENTED 1. Whether the district court exceeded its authority by permitting discovery of communications by Commission attorneys relating to litigation in clear violation of the attorney-client privilege and the attorney work product privilege. 2. Whether the district court exceeded its authority by permitting discovery of information relating to the Commission's deliberations concerning the decision to file an enforcement action in clear violation of the deliberative process privilege. STATEMENT OF FACTS 1. The EEOC filed this lawsuit against Agro Distribution, LLC, on September 27, 2004, in the United States District Court for the Southern District of Mississippi. In its complaint, the Commission alleges that Agro violated the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq., when it failed to reasonably accommodate the disability of Henry A. Velez, a former Agro employee, and then discharged Velez because of his disability. 2. On July 28, 2006, the district court granted Agro's motion for summary judgment, dismissing the EEOC's complaint with prejudice and entering judgment in favor of Agro. 3. Shortly thereafter, Agro filed a Motion For Attorneys' Fees and the EEOC responded. Prior to filing its reply to the EEOC's opposition to the motion for attorneys' fees, Agro through its counsel, Herbert C. Ehrhardt, submitted a letter directly to the district court. The letter, which was not filed as part of the record of this case, requested a stay of the district court's decision on the Motion for Attorneys' Fees to allow additional time for supplementing the record on that motion. 4. Ehrhardt's letter asserts that Prisca DeLeonardo, an attorney with the Commission's Birmingham District Office, initiated an action against the Commission with the Merit Systems Protection Board ("MSPB") that was "highly relevant" to Agro's motion for attorneys' fees. During 2005, DeLeonardo was a Supervisory Trial Attorney who provided legal counsel to the Commission in the instant case. The letter was accompanied by Ehrhardt's personal affidavit, a copy of the MSPB decision in the case of Prisca M. DeLeonardo v. EEOC, 1221-06- 0340-W-1, and three witness statements. 5. On September 18, 2006, the district court entered an order staying a decision on the Motion for Attorneys' Fees for sixty days. The district court's order stated that "[a]ny additional relevant information regarding this issue can be submitted to the Court by either side during this sixty day period." 6. On September 27, 2006, Agro noticed the deposition of attorney DeLeonardo for October 24, 2006, in Birmingham, Alabama. 7. On October 12, 2006, the EEOC filed a Motion for Protective Order in the district court seeking an order prohibiting the defendant's deposition of DeLeonardo on the grounds that the information sought by the defendant was both irrelevant to the issue of attorneys' fees and covered by the attorney-client, work product, and deliberative process privileges. Agro filed its Response in Opposition to the EEOC's Motion for Protective Order on October 20, 2006. 8. On October 23, 2006, without permitting the Commission to reply to Agro's response, the district court denied the motion for a protective order and ordered the deposition of Attorney DeLeonardo to go forward as scheduled on October 24. 9. In a subsequent written order of the same date, the district court incorporated its oral rulings by reference and ordered that the Commission "furnish to the Defendant a copy of the submissions that were submitted to the Office of General Counsel in preparation for submission to the full Commission. Said documents are to be furnished forthwith and available to counsel for Defendant Agro to use at the deposition." Order of October 23, 2006. 10. On October 23, 2006, the Commission filed a motion requesting that the district court stay its order to permit the Commission to seek review by this Court. The court denied the motion on October 24, 2006. The deposition of DeLeonardo was rescheduled for October 25, 2006 at 11:00 a.m., CDT. REASONS WHY THE WRIT SHOULD ISSUE As the Supreme Court and this Court have observed, three conditions must be satisfied before a writ of mandamus may issue: "(1) the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires; (2) the petitioner must satisfy the burden of showing that [his] right to issuance of the writ is clear and undisputable; and (3) even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances." In re United States, 397 F.3d 274, 282 (5th Cir. 2005) (quoting Cheney v. United States District Court for the District of Columbia, 542 U.S. 367, 380-81 (2004)) (internal quotation marks omitted) (alterations in original). Although mandamus is an extraordinary remedy, this Court has held that "'when the writ of mandamus is sought from an appellate court to confine a trial court to a lawful exercise of its prescribed authority, the court should issue the writ almost as a matter of course.'" In re Reyes, 814 F.2d 168, 170 (5th Cir. 1987) (quoting United States v. Denson, 603 F.2d 1143, 1145 (5th Cir. 1979)). In particular, this Court has observed repeatedly that a writ of mandamus can be an appropriate vehicle for review of discovery orders implicating privilege claims. E.g., In re United States, 397 F.3d at 283 (observing that "this court, in accord with other circuits, has considered and issued writs of mandamus over discovery orders implicating privilege claims"); In re Avantel, 343 F.3d 311, 317 (5th Cir. 2003) (observing that "mandamus is an appropriate means of relief if a district court errs in ordering the discovery of privileged documents, as such an order would not be reviewable on appeal"); In re Burlington Northern, Inc., 822 F.2d 518, 522 (5th Cir. 1987) (noting courts' conclusion that "mandamus is an appropriate method of review of orders compelling discovery against a claim of privilege," and observing that "[r]espected commentators have similarly noted that the difficulty of obtaining effective review of discovery orders, the serious injury that sometimes results from such orders, and the often recurring nature of discovery issues support use of mandamus in exceptional cases"). Cf. In re Papandreou, 139 F.3d 247, 251 (D.C. Cir. 1998) (acknowledging that subsequent appeal after disclosure of privileged material is "obviously not adequate" because "the cat is out of the bag"). Because the district court in this case exceeded its authority by permitting discovery of information which is clearly privileged this Court should grant the EEOC's petition and issue a writ of mandamus. I. THE DISTRICT COURT EXCEEDED ITS AUTHORITY BY PERMITTING DISCOVERY OF COMMUNICATIONS BY COMMISSION ATTORNEYS RELATING TO LITIGATION IN CLEAR VIOLATION OF THE ATTORNEY-CLIENT PRIVILEGE AND THE ATTORNEY WORK PRODUCT PRIVILEGE. A. The Materials at Issue Clearly Fall Within the Scope of the Attorney- Client and the Attorney Work Product Privileges. As this Court has observed, the "central concern" of the attorney-client privilege is "'to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.'" In re Grand Jury Subpoena, 419 F.3d 329, 338 (5th Cir. 2005) (quoting United States v. Zolin, 491 U.S. 554, 562 (1989)). "In the governmental context, the 'client' may be the agency and the attorney may be an agency lawyer." Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997); see also In re Lindsey, 148 F.3d 1100, 1104 (D.C. Cir. 1998) (observing that "[c]ourts, commentators, and government lawyers have long recognized a government attorney-client privilege in several contexts"). As the D.C. Circuit observed in Coastal States Gas Corp. v. Department of Energy, the attorney-client privilege applies to governmental communications in situations where "the Government is dealing with its attorneys as would any private party seeking advice to protect personal interests, and needs the same assurance of confidentiality so it will not be deterred from full and frank communications with its counselors." 617 F.2d 854, 863 (D.C. Cir. 1980). Neither the district court nor Agro disputes that the deposition testimony and documents which the court has permitted Agro to obtain fall within the scope of the attorney-client privilege. Under the court's order Agro would be permitted to question a Commission attorney regarding her communications with other agency attorneys regarding the lawsuit against Agro, and the Commission is required to provide Agro with documents written by Commission attorneys discussing the proposed litigation against Agro. Thus Agro would be permitted to obtain information about communications between lawyers for a government agency dealing with litigation strategy. The materials at issue are also clearly covered by the attorney-work product privilege because they are "opinion work product" pertaining directly to the mental impressions, conclusions, opinion, or legal theories of the Commission's attorney concerning the Agro litigation. See Fed. R. Civ. P. 26(b)(3); 8 Charles Alan Wright et al., Federal Practice & Procedure § 2026 (2d ed. 1987). As such, they are entitled to heightened protection beyond that regularly afforded other types of work product. See Upjohn Co. v. United States, 449 U.S. 383, 400 (1981) (observing that Fed. R. Civ. P. 26 "accords special protection to work product revealing the attorney's mental processes"); In re Int'l Sys. & Controls Corp. Securities Litigation, 693 F.2d 1235, 1240 (5th Cir. 1982) (noting that some courts "have provided an almost absolute protection for [opinion work product]," and noting that, at a minimum, an "even higher showing" would be required than for normal work product). The defendant and the district court maintain that the materials are nonetheless subject to disclosure under the so-called crime-fraud exception to the attorney-client privilege and the work-product privilege. However, it is manifest that the crime-fraud exception does not apply to the information sought in this case. B. The Crime-Fraud Exception Does Not Apply The district court clearly erred when it apparently accepted the defendants' argument that the crime-fraud exception to the attorney-client and work product privileges applies to the materials sought in this case. Based on this Court's extensive analysis of the crime-fraud exception in In re Grand Jury Subpoena, 419 F.3d 329 (5th Cir. 2005), as well as in other cases, it is clear that the crime-fraud exception is wholly inapposite to this case. As this Court explained in In re Grand Jury Subpoena, "[u]nder the crime-fraud exception to the attorney-client privilege, the privilege can be overcome where communication or work product is intended to further continuing or future criminal or fraudulent activity." 419 F.3d at 335 (5th Cir. 2005) (emphasis added). See also id. at 339 ("It is the purpose of the crime-fraud exception to the attorney-client privilege to assure that the seal of secrecy between lawyer and client does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime.") (quoting Zolin, 491 U.S. at 563) (internal quotation marks omitted) (emphasis in original); United States v. Edwards, 303 F.3d 606, 618 (5th Cir. 2002) (noting that, "[i]n determining whether the crime-fraud exception applies, we focus on the client's purpose in seeking legal advice"). Moreover, even when the crime-fraud exception does apply to a particular scenario, "the proper reach of the crime-fraud exception when applicable does not extend to all communications made in the course of the attorney-client relationships, but rather is limited to those communications and documents in furtherance of the contemplated or ongoing criminal or fraudulent conduct." Grand Jury Subpoena, 419 F.3d at 343. Simply put, this Court's law makes clear that the crime-fraud exception has no relationship whatsoever to the discovery materials at issue in this case. The crime-fraud exception exempts from privilege communications between attorney and client, or attorney work product, where the client seeks legal advice from the attorney for the purpose of engaging in future criminal or fraudulent behavior. See, e.g., Edwards, 303 F.3d at 619 (crime-fraud exception applied where defendant consulted with civil attorney in "actively continuing the cover-up of his extortion and perpetuating his tax fraud"); United States v. Blakley, 250 F.3d 744, 2001 WL 274766, at *1 (5th Cir. 2001) (unpublished) (holding that crime-fraud exception applied to allow defense counsel's testimony because "the Government made a prima facie showing that defendant sought counsel's legal representation in order to further [his] illegal and fraudulent conduct"). The materials in this case, on the other hand, are internal deliberations between government attorneys as to the merits and proper handling of a case in active processing and litigation - bearing absolutely no relation to a client's request for an attorney's advice in how to commit future crime or fraud. We are aware of no case where the crime-fraud exception has been extended to alleged misrepresentations in attorney-client communications concerning the merits of a contemplated lawsuit. Extending the crime-fraud exception to this scenario would undermine the central purpose of the attorney-client privilege by rendering discoverable communications among attorneys or between an attorney and a client regarding the merits of lawsuit whenever there is a suggestion that some kind of misrepresentation was involved. This interpretation of the crime-fraud exception would constitute a significant encroachment on the attorney-client privilege, and one that is not contemplated by any of this Court's law on the subject. Even if the crime-fraud exception could apply to the type of communications at issue in this case, it would nonetheless be clear that the defendant failed to make the requisite evidentiary showing to warrant its application. As this Court observed in Grand Jury Subpoena, "'[i]n order to invoke [the crime-fraud] exception, the party seeking to breach the walls of privilege must make out a prima facie case'" of crime or fraud. 419 F.3d at 336 (quoting Int'l Sys., 693 F.2d at 1242) (alterations in original). Mere allegations of fraud in pleadings are insufficient to establish a prima facie case; rather, the moving party is required to adduce evidence "'such as will suffice until contradicted and overcome by other evidence[;] . . . a case which has proceeded upon sufficient proof to that stage where it will support [a] finding if evidence to the contrary is disregarded.'" Id. (quoting Int'l Sys., 693 F.2d at 1242) (alteration in original). Moreover, in the context of fraud, as this Court has observed, "a party must present evidence of an intent to deceive to establish a prima facie case of fraud or perjury." Industrial Clearinghouse, Inc. v. Browning Manuf. Div. of Emerson Elec. Co., 953 F.2d 1004, 1008 (5th Cir. 1992). The defendant in this case has not even come close to making the kind of evidentiary showing of fraud contemplated by this Circuit's case law. Indeed, their sole "evidence" of any alleged wrongdoing is the MSPB appellate decision in Prisca M. DeLeonardo v. EEOC, which makes no explicit reference whatsoever to this case, and, even if it did relate to this case, does not sufficiently allege fraud. This evidentiary proffer falls well short of the prima facie case of fraud contemplated by this Court as sufficient to support the application of the crime- fraud exception to the attorney-client and work product privileges. II. THE DISTRICT COURT EXCEEDED ITS AUTHORITY BY PERMITTING DISCOVERY OF INFORMATION RELATING TO THE COMMISSION'S INTERNAL DELIBERATIONS IN DECIDING WHETHER TO SUE AGRO, IN CLEAR VIOLATION OF THE DELIBERATIVE PROCESS PRIVILEGE. As the Supreme Court has observed, the deliberative process privilege "covers 'documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.'" Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)). The privilege "rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance 'the quality of agency decisions' by protecting open and frank discussion among those who make them within the Government." Id. (quoting Sears, 421 U.S. at 151). As this Court has explained: This application of the official privilege is founded on the belief that there are certain governmental processes related to legal and policy decisions which cannot be carried out effectively if they must be carried out under the public eye. Government officials would hesitate to offer their candid and conscientious opinions to superiors or co- workers if they knew that their opinions of the moment might be made a matter of public record at some future date. There is a public policy involved in this claim of privilege for this advisory opinion[:] the policy of open, frank discussion between subordinate and chief concerning administrative action. Branch v. Phillips Petroleum Co., 638 F.2d 873, 881-82 (5th Cir. 1981) (internal citation and quotation marks omitted). In order to be protected by the deliberative process privilege, the material at issue must be both predecisional and deliberative. See, e.g., In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) (requirement that material protected by deliberative process privilege be predecisional and deliberative "stem[s] from the privilege's 'ultimate purpose[, which] . . . is to prevent injury to the quality of agency decisions' by allowing government officials freedom to debate alternative approaches in private") (quoting Sears, 421 U.S. at 151). The documents pertaining to the Commission's decision to litigate this case, as well as the testimony of a Commission attorney regarding the decision to litigate, are quintessential examples of information protected by the deliberative process privilege, as they are both pre-decisional and pertain to the deliberation at issue - the decision to litigate this case. The defendants argued to the district court that the materials at issue here were not covered by the deliberative process privilege because they were not "predecisional" in the sense that they were not generated prior to the Commission's determination that Velez's charge had merit. Defendant's Response and Opposition to EEOC's Motion for Protective Order at 7 & n.5. This argument is flatly incorrect and without any legal support from this or any other court. It is important to remember that the "decision" at issue here, and the "decision" Agro challenges as frivolous or unwarranted, is the Commission's decision to sue Agro, not its decision to find cause on Velez's charge of discrimination. There can be no question that the information the defendant seeks here is antecedent to the question of how the decision was made to undertake this lawsuit - indeed, this is precisely why Agro seeks its disclosure. Finally, while Agro is correct that the deliberative process privilege is a qualified rather than an absolute privilege, see In re Sealed Case, 121 F.3d at 737- 38, the defendant cannot show that the requisite "balance of competing interests" favors disclosure of the information at issue here. Indeed, as we pointed out to the district court, the information sought by the defendant here is not even relevant to the sole remaining issue in the case: whether the defendant is entitled to attorneys' fees. Agro insisted below that it has a compelling need for information regarding the Commission's deliberations in order to develop evidence that the agency "pursu[ed] frivolous litigation" in "actual bad faith." Defendant's Response and Opposition to EEOC's Motion for Protective Order, at 11. However, as Agro argued in its petition for fees, it is entitled to an award of attorneys' fees as a prevailing defendant in an ADA action if the EEOC's suit was "frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). Accordingly, Agro does not need evidence of "actual bad faith" in order to prevail on its petition for attorney's fees. There is, accordingly, no compelling need to override the Commission's clear deliberative process privilege in this case. The district court can determine whether the Commission's case against Agro was frivolous without delving into the agency's internal deliberations. CONCLUSION For these reasons, the Commission respectfully requests this Court to grant the petition for a writ of mandamus. Respectfully submitted, RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel ______________________________ ELIZABETH E. THERAN Attorney CERTIFICATE OF COMPLIANCE This petition complies with the type-volume limitation of Fed. R. App. P. 21(d) because it does not exceed thirty pages, excluding the parts of the petition exempted by Fed. R. App. P. 21(d) and Fed. R. App. P. 21(a)(2)(C). This petition complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. Elizabeth E. Theran Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 Dated: October 24, 2006 CERTIFICATE OF SERVICE I, Elizabeth E. Theran, hereby certify that I filed one original and three copies of the foregoing petition with this Court this 24th day of October, 2006, by overnight delivery, postage pre-paid, with one advance copy via facsimile. I also certify that I served one copy of the foregoing petition this 24th day of October, 2006, by overnight delivery, postage pre-paid, with one advance copy via facsimile, to the district court and to the following counsel of record: Counsel for Defendant: Ashley Eley Cannady, Esq. Herbert C. Ehrhardt, Esq. Bethany B. Johnson, Esq. Lewis Fisher Henderson Claxton & Mulroy, LLP P.O. Box 22654 317 East Capitol St., Suite 950 Jackson, MS 39225-2654 District Court: Chambers of the Honorable Keith Starrett United States District Court for the Southern District of Mississippi 701 Main St., Suite 228 Hattiesburg, MS 39401 Elizabeth E. Theran Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 *********************************************************************** <> <1> Although we have ordered a transcript of the district court's oral ruling, we did not receive it in time to include it with this petition. ii 20