IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ________________________________________ No. 08-55262 __________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner-Appellee, v. AMERICAN APPAREL, INC., Respondent-Appellant. _______________________________________________________ On Appeal from the United States District Court for the Central District of California No. CV-07-06778-ODW _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PETITIONER-APPELLEE _______________________________________________________ RONALD S. COOPER EQUAL EMPLOYMENT OPPORTUNITY General Counsel COMMISSION Office of General Counsel LORRAINE C. DAVIS 1801 L Street, N.W., 7th Floor Acting Associate General Counsel Washington, D.C. 20507 (202) 663-7049 CAROLYN L. WHEELER donna.brusoski@eeoc.gov Assistant General Counsel DONNA J. BRUSOSKI Attorney TABLE OF CONTENTS PAGE TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iii STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. Nature of the case and course of proceedings . . . . . . . . . 2 2. Statement of facts . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3. District court decision . . . . . . . . . . . . . . . . . . . . . . . . . 7 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 I. American Apparel's blanket assertions of attorney client privilege and work product protection were insufficient to satisfy its obligation to properly assert privilege or protection under Fed.R.Civ.P. 26(b)(5). . . . . . . . . . . . . . . 12 II. American Apparel has waived any attorney client privilege or work product protections. . . . . . . . . . . . . . . 18 III. The Commission has demonstrated the requisite need for the subpoenaed documents to override any claimed privilege or protection. . . . . . . . . . . . . . . . . . . . . . 20 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 TABLE OF CONTENTS (CONT.) STATEMENT OF RELATED CASES CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES PAGE CASES Burlington Northern & Santa Fe Railway Co. v. U.S., 408 F.3d 1142 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Clarke v. American Commerce Nat. Bank, 974 F.2d 127 (9th Cir.1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 EEOC v. Children's Hospital Medical Center, 719 F.2d 1426 (9th Cir. 1983) (en banc). . . . . . . . . . . . . . . . . . . . . . . . 11 EEOC v. Jewel Food Stores, Inc., 231 F.R.D. 343 (N.D. Ill. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 EEOC v. Karuk Tribe Housing Authority, 260 F.3d 1071 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 EEOC v. Shell Oil Co., 466 U.S. 54 (1984) . . . . . . . . . . . . . . . . . . . . . . 11 EEOC v. Waffle House, Inc., 534 U.S. 291 (2002). . . . . . . . . . . . . . . . . . . 21 Eureka Financial Corp. v. Hartford Accident & Indemnity Co., 136 F.R.D. 179 (E.D. Cal. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . 15, 19 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) . . . . . . . . . . . . . . . . 22 Flanagan v. Benicia Unified School Dist., 2008 WL 2073952 (E.D. Cal. May 14, 2008) . . . . . . . . . . . . . . . . . . . . . .passim General Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21 Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) . . . . . . . . . . . . . . . . . 22 Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . .9, 20 In re Grand Jury Subpoena, 357 F.3d 900, 910 (9th Cir. 2004) . . . . . . . . . 14 In re Murphy, 560 F2d 326 (8th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . 17 Judicial Watch, Inc. v. Department of Justice, 432 F.3d 366 (D.C. Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540 (10th Cir.1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Pham v. Hartford Fire Ins. Co., 193 F.R.D. 659 (D.Colo. 2000) . . . . . . . . 15 Snowden by and through Victor v. Connaught Laboratories, 137 F.R.D. 325 (D.Kan. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Swinton v. Potomac Corp., 270 F.3d 794 (9th Cir. 2001). . . . . . . . . . . . . . 23 Weiner v. FBI, 943 F.2d 972 (9th Cir. 1991). . . . . . . . . . . . . . . . . . . . . 24 TABLE OF AUTHORITIES (CONT.) PAGE FEDERAL STATUTES & RULES 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 29 U.S.C. § 161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 42 U.S.C. § 2000e-5(f)(3) . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e-8(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10 42 U.S.C. § 2000e-9 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 11 29 C.F.R. § 1601.16(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Fed. R. App. P. 4(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fed.R.Civ.P. 26(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . passim Fed.R.Civ.P. 26(b)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . passim OTHER AUTHORITY Advisory Committee Notes to Rule 26(b)(3), 48 F.R.D. 487 (1975). . . . . 16 Advisory Committee Notes to 1993 Amendments to Rule 26(b)(5). . . . . . 14 8 C. WRIGHT, A. MILLER & R. MARCUS, FEDERAL PRACTICE AND PROCEDURE, Civ.2d, § 2026 (2008) . . . . . . . . . . . . . 20 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ________________________________________ No. 08-55262 _________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner-Appellee, v. AMERICAN APPAREL, INC., Respondent-Appellant. ___________________________________________ STATEMENT OF JURISDICTION a. The district court had jurisdiction over this Title VII action to enforce the Commission's administrative subpoena under 42 U.S.C. §§ 2000e-5(f)(3) and 2000e-9, and 28 U.S.C. §§ 1331 and 1345. b. On December 10, 2007, the district court ordered American Apparel to comply with the Commission's subpoena. AER137.<1> c. On February 4, 2008, American Apparel filed a timely notice of appeal under Fed. R. App. P. 4(a)(1)(B). AER138-42. d. This Court has jurisdiction over the district court's judgment. 28 U.S.C. § 1291. See also this Court's order of May 23, 2008. STATEMENT OF THE ISSUES 1. Whether American Apparel's blanket assertions of attorney client privilege and work product protection were insufficient to satisfy its obligation to properly assert such privilege or protection under Fed.R.Civ.P. 26(b)(5). 2. Whether American Apparel has waived any attorney client privilege or work product protection for the documents at issue. 3. Whether the Commission has demonstrated the requisite need for the subpoenaed documents to override any claimed privilege or protection. STATEMENT OF THE CASE 1. Nature of the case and course of proceedings This is a subpoena enforcement proceeding. The Equal Employment Opportunity Commission ("the Commission") seeks enforcement of an administrative subpoena issued pursuant to its investigation of a Title VII charge of discrimination filed against American Apparel. On October 18, 2007, the Commission filed an application in district court for an order to show cause why its Title VII subpoena should not be enforced. DN1. On December 10, 2007, the district court granted this application and ordered American Apparel to comply with the Commission's subpoena. AER137. On February 4, 2008, American Apparel filed a timely notice of appeal. AER138-42. 2. Statement of facts American Apparel manufacturers and sells casual clothing. Sylvia Hsu worked as a seamstress at American Apparel's Warehouse Street facility in Los Angeles, California. On February 7, 2006, Hsu filed a charge with the Commission alleging that American Apparel discriminated against her on the basis of sex by subjecting her to sexual harassment and constructively discharging her. AER87. Specifically, Hsu alleged that she had been sexually harassed by a coworker from April 2005 to January 2006; that she complained to management as early as April 2005, but American Apparel failed to take actions to correct the problem; and that she was constructively discharged on January 11, 2006, due to the sexual harassment and hostile work environment at American Apparel's warehouse facility. Id. The Commission initiated an investigation of Hsu's charge on February 10, 2006. AER at 7 ¶ 4, 106. American Apparel responded in part to the Commission's requests for information. AER at 7 ¶ 4. However, the company refused to provide contact information for its female employees or information regarding its investigations of and responses to sexual harassment complaints. Id. Therefore, on May 11, 2006, the Commission issued an administrative subpoena (AER23) asking American Apparel to: 1. Provide documents which show or reflect the names, most recent address and telephone numbers of all female employees working at the 747 Warehouse Street location from May 2004 through the present. 2. Provide copies of any investigation ... conducted as a result of any sexual harassment complaint made from May 2004 through the present. This should include investigations on Mary Nelson, Heather Pithie, Rebecca Brinigar, and Julie Carrozzi. American Apparel refused to comply with the Commission's subpoena.<2> Instead, on May 23, 2006, the company filed with the Commission a Petition to Revoke or Modify the Subpoena. AER15-21; see 29 C.F.R. § 1601.16(b) (setting forth procedures for obtaining modification or revocation of a subpoena). American Apparel contended that subpoena request number 1 was overly broad, sought information that was irrelevant to the charge and not reasonably calculated to lead to discovery of admissible evidence, and sought information about its employees that was protected under a right to privacy recognized by California courts. AER18-19. American Apparel also contended that subpoena request number 2 was overly broad, and sought information that was irrelevant to the charge and not reasonably calculated to lead to discovery of admissible evidence. AER20. American Apparel further contended that subpoena request number 2 sought information that was protected from disclosure under attorney client and/or work product privileges. Id. In support of the latter contention, American Apparel stated the following: On May 4, 200[6], American Apparel provided the EEOC with copies of the four Charges of Discrimination filed against it from May 2004 through the present, by the following individuals: Mary Nelson, Heather Pithie, Rebecca Brinigar, and Julie Carrozzi. With the exception of the complaint filed by Ms. Mary Nelson (enclosed), all three other complaints have been dismissed. As soon as American Apparel received these Charges of Discrimination, it forwarded them to American Apparel's various outside legal counsels who handled these matters on behalf of American Apparel. Accordingly, no internal investigation was conducted. The only investigations that were performed were conducted by, or at the direction of, American Apparel's outside lawyers. AER20. On March 9, 2007, the Commission formally notified American Apparel that it was expanding the investigation to include other female employees who may have been subjected to sexual harassment at the Los Angeles facility. AER91. The full Commission considered American Apparel's petition to revoke or modify the subpoena, and on March 30, 2007, the Commission denied the petition. AER93-104. The Commission found that the first subpoena request seeks information relevant to determine whether similarly situated employees have been subjected to a sexually hostile work environment; it is not over-broad, but narrowly tailored to seek necessary and relevant contact information for American Apparel's female employees; and it does not violate employees' rights to privacy and confidentiality because the Commission is required under federal law to keep the information confidential. AER96-101. With respect to the second subpoena request, the Commission found that it sought information relevant to determine whether American Apparel's responses to complaints of sexual harassment contribute to a hostile working environment affecting similarly situated employees and whether the company has an effective sexual harassment policy; it is not over-broad, but narrowly tailored to the facts of this case and seeks documents only of investigations for sexual harassment complaints; it does not seek information the disclosure of which would violate attorney client privilege or work product doctrine; and the Commission has a substantial need to evaluate the information sought to determine whether to find "cause" in the investigation and it is unable to obtain the substantial equivalent of this information by other means. AER101-04. Finally, the Commission concluded that "[t]o the extent that [American Apparel] claims that some documents are privileged, then [the company] needs to produce a privilege log describing the documents in sufficient detail for the Commission to determine whether the asserted privilege is appropriate." AER104. Accordingly, the Commission ordered American Apparel to comply in full with the subpoena by May 17, 2007. AER93-104. American Apparel failed to do so, nor did it comply with the Commission's request for a descriptive privilege log. In October 2007, the Commission again attempted informally to resolve the impasse, but counsel for American Apparel informed the Commission that the company would not produce the information sought in the subpoena. AER at 2 ¶ 3, 4. This action to enforce the Commission's subpoena followed. 3. District court order Following briefing by the parties,<3> on December 10, 2007, the district court heard argument. AER126-36. In an order issued on the same date, the district court stated: "After review of the arguments and the materials raised by both parties ... as well as the arguments advanced by counsel at the hearing, the Court finds no reason why Petitioner EEOC's subpoena should not be enforced." AER137.<4> Accordingly, the court ordered American Apparel to comply with the Commission's subpoena in full by January 9, 2008. AER137. Subsequently, on or about January 8, 2008, American Apparel complied with the Commission's first subpoena request for contact information for its female employees. However, American Apparel failed to comply with the second subpoena request, concerning the investigations into sexual harassment complaints. Instead, American Apparel took this appeal. SUMMARY OF ARGUMENT This case involves an attempt to enforce an administrative subpoena issued by the Equal Employment Opportunity Commission. Under Title VII, the Commission has a "right to [obtain] any evidence of any person being investigated or proceeded against that . . . is relevant to the charge under investigation." 42 U.S.C. § 2000e-8(a). There is no claim on appeal in this case that the evidence sought is not "relevant" to the investigation at issue. The only issue on appeal is whether American Apparel has adequately presented its claim that documents created as a result of "any sexual harassment complaint" from May 2004 to the present, are immune from disclosure under attorney client privilege or work product doctrine. American Apparel's privilege or work product argument appears to pertain only to documents apparently created by, or at the direction of, outside counsel, at around the time of its investigations of sexual harassment complaints of four women named in the subpoena, who ultimately filed suit against the company; the company has been unresponsive to the broader request in the subpoena. American Apparel offered nothing more than a blanket assertion that the documents at issue were privileged, allowing neither the Commission, in the first instance, nor the district court, in this subpoena enforcement action, to discern the nature of these documents. Thus, the company failed to comply with Rule 26(b)(5)'s requirement that the party asserting a privilege offer a description of "the nature of the documents, communication, or things not produced or disclosed." For this reason, American Apparel has failed properly to assert its privileges. In addition, because American Apparel's response to the subpoena reflects the unreasonable conduct described in this Court's ruling in Burlington Northern & Santa Fe Railway Co. v. U.S., 408 F.3d 1142, 1149 (9th Cir. 2005), the privilege or work product protection has been waived. Moreover, even assuming that the documents at issue qualify for work product protection and that protection was not waived, the Commission is entitled to the documents. This is not simply a case in which a private party, in contested litigation, is invoking discovery procedures to obtain documents. Application of work product doctrine in this context must take into account the Commission's broad statutory authority to access all documents relevant to its investigation of a Title VII charge. The documents created on American Apparel's behalf in the course of investigations into sexual harassment complaints against the company, and the company's response to those complaints, have direct bearing on whether American Apparel has an effective policy against sexual harassment. This is a crucial issue in the Commission's investigation. The Commission is entitled to this information under Fed.R.Civ.P. 26(b)(3) because it cannot obtain its equivalent by other means and it has a compelling need for the information which overrides any claimed protections in this case. Thus, the Commission urges this Court to reject American Apparel's attorney client privilege and work product defenses and affirm the district court's order enforcing the Commission's subpoena. ARGUMENT Title VII grants the Commission broad investigatory authority. Section 709(a) of Title VII provides that the Commission is authorized to have access to any evidence "relevant to the charge under investigation." 42 U.S.C. § 2000e- 8(a). As the Supreme Court has explained: That limitation on the Commission's investigative authority is not especially constraining. 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) (footnote omitted). The Commission is empowered to seek enforcement of any subpoena issued pursuant to its investigation of a Title VII charge. See 42 U.S.C. § 2000e-9 (incorporating 29 U.S.C. § 161). This Court has recognized that "[t]he scope of judicial inquiry in an EEOC . . . subpoena enforcement proceeding is quite narrow." EEOC v. Karuk Tribe Housing Authority, 260 F.3d 1071, 1076 (9th Cir. 2001), quoting EEOC v. Children's Hospital Medical Center, 719 F.2d 1426, 1428 (9th Cir. 1983) (en banc). The Court noted that "[t]he critical questions are: (1) whether Congress has granted authority to investigate; (2) whether procedural requirements have been followed; and (3) whether the evidence is relevant and material to the investigation." Karuk Tribe, 260 F.3d at 1076 (citations omitted). There is no claim on appeal in this case that the evidence sought is not "relevant" or "material" to the investigation at issue.<5> The only contention American Apparel raises on appeal is that the disputed portion of the Commission's subpoena – the request regarding any investigations of sexual harassment complaints, including those of Nelson, Pithie, Brinegar, and Carrozzi – seeks documents that are immune from disclosure under the attorney client privilege or work product doctrine of Fed.R.Civ.P. 26(b)(3). I. American Apparel's blanket assertions of attorney client privilege and work product protection were insufficient to satisfy its obligation to properly assert privilege or protection under Fed.R.Civ.P. 26(b)(5). As the party claiming a privilege, American Apparel was obligated to "describe the nature of the documents, communications, or things not produced or disclosed in a manner that . . . will enable other parties to assess the applicability of the privilege." Fed.R.Civ.P. 26(b)(5). American Apparel did not do so here. It offered no information at all in response to the Commission's broad request for information related to all internal complaints or investigations, nor has it denied the existence of any other complaints.<6> AER32 ¶4. Instead, it merely stated that upon receiving four charges of discrimination, it forwarded them to outside counsel for investigation. See AER114. It offered no description of "the nature of the documents, communication, or things not produced or disclosed" as required by Rule 26(b)(5).<7> Contrary to American Apparel's assertion (Opening br. at 9-10), the sworn declaration it offered in district court did not refer to any "notes and memoranda prepared by ... outside legal counsel." Instead, the declaration merely said, "The only investigations that were performed [regarding the sexual harassment claims of the women named in the subpoena] were conducted by, or at the direction of, American Apparel's outside lawyers." AER114. This bald assertion (and other similar statements in the company's petition to the Commission and memoranda in the district court) failed even to identify, much less describe, any "documents, communications, or things not produced or disclosed." Rule 26(b)(5). Because the company refused even to acknowledge the existence of any documents created in the investigation of sexual harassment claims, whether in anticipation of litigation or otherwise, it offered the district court no basis from which to "assess the applicability of the privilege." Id. This Court has held that "a proper assertion of privilege [under Rule 26] must be more specific than a generalized, boilerplate objection." Burlington Northern & Santa Fe Railway Co. v. U.S., 408 F.3d 1142, 1147 (9th Cir. 2005). Moreover, privileges "‘must ordinarily be raised as to each record sought to allow the court to rule with specificity.'" Flanagan v. Benicia Unified School Dist., 2008 WL 2073952, *4 (E.D. Cal. May 14, 2008), quoting Clarke v. American Commerce Nat. Bank, 974 F.2d 127, 129 (9th Cir.1992) (referring to attorney client privilege); In re Grand Jury Subpoena, 357 F.3d 900, 910 (9th Cir. 2004) ("a proper analysis as to the withheld documents must be conducted on a document by document basis") (referring to work product protection). American Apparel's general assertion of attorney client privilege and/or work product protection in the district court is precisely the type of "blanket assertion" that this Court cautioned against in Burlington Northern. In Burlington Northern, the Court stated that while Rule 26 "‘does not attempt to define for each case what information must be provided when a party asserts a claim of privilege or work product protection,' ... [s]till, the ‘party must ... provide sufficient information to enable other parties to evaluate the applicability of the claimed privilege or protection.'" 408 F.3d at 1147-48, quoting Advisory Committee Notes to the 1993 Amendments to Rule 26(b)(5). The Court cautioned against "strategic manipulation of the discovery process by means of blanket assertions of privilege, or ‘functionally silent' privilege claims" (408 F.3d at 1148 (internal citation omitted)), and emphasized that "the spirit of the rules is violated when advocates attempt to use discovery tools as tactical weapons rather than to expose the facts and illuminate the issues." Id. at 1149 (internal quotation and citation omitted). As discussed above, American Apparel did not even identify in district court the documents it sought to protect from disclosure in this case. A number of district courts grappling with such "functionally silent" privilege claims have rejected such assertions because the courts lack the critical information to evaluate the claims. See Flanagan, 2008 WL 2073952, at *7 ("Even at this time the court and defendants are not aware of what documents have been withheld on account of the asserted privileges. ... Defendants' counsel has been compelled to make his plea that no privilege/immunity attaches without recourse to the basic, essential information which would enable him (and the court) to sensibly determine whether particular documents were indeed privileged."); Pham v. Hartford Fire Ins. Co., 193 F.R.D. 659, 662 (D.Colo. 2000) (defendant's boilerplate objection was insufficient to protect documents under attorney client privilege where objection failed to identify defendant's lawyers involved in conversations and people present during the conversations, or to describe the nature of the communication sufficiently to enable plaintiffs to assess applicability of claimed privilege); Eureka Financial Corp. v. Hartford Accident & Indemnity Co., 136 F.R.D. 179, 183 (E.D. Cal. 1991) ("The purpose of the specific objection requirement is to provide the party seeking discovery with a basis for determining what documents the party asserting the privilege has withheld. Otherwise, how could this opposing party ever know whether the documents withheld under a blanket privilege objection were withheld correctly, incorrectly, or maliciously."); Snowden by and through Victor v. Connaught Laboratories, 137 F.R.D. 325, 333- 34 (D.Kan. 1991) ("must the court accept, without inquiry, investigation or verification, the defendant's word that documents, records and other writings are, or contain, attorney opinion work product? To ask the question is to answer it"; requiring defendant to produce a descriptive privilege log). As in Flanagan, Pham, Eureka Financial Corp., and Snowden, the general, blanket assertions of privilege/ immunity American Apparel offered here give the Commission no basis from which to respond to arguments that some unidentified documents, conversations, notes, or other material are covered by attorney client privilege or work product doctrine, as the company argues on appeal. Opening br. at 10-17. Moreover, even if American Apparel is in possession of documents that would be due some protection under the work product doctrine, Rule 26(b)(3) did not change the general rule that "one party may discover relevant facts known or available to the other party, even though such facts are contained in a document which is not itself discoverable." Advisory Committee Notes to Rule 26(b)(3), 48 F.R.D. 487, 501 (1975). Although some courts consider factual material privileged when it appears within an attorney's work product, see Judicial Watch, Inc. v. Department of Justice, 432 F.3d 366 (D.C. Cir. 2005), the general rule is that "[u]nder Rule 26(b)(3), any relevant facts contained in non-discoverable opinion work product are discoverable upon a proper showing." In re Murphy, 560 F2d 326, 336 n.20 (8th Cir. 1997) (internal citation omitted); see also EEOC v. Jewel Food Stores, Inc., 231 F.R.D. 343, 345-47 (N.D. Ill. 2005) (defendant was required to answer interrogatories seeking identities of persons who had information or had made statements to counsel relating to claims or defenses in the case as well as the substance of the information provided; court held that this was factual information, which did not implicate attorneys' mental impressions, and therefore, the information itself was not protected from disclosure under work product doctrine). There is no dispute that the documents at issue here, which were created during investigations of sexual harassment complaints against American Apparel, contain factual information that is relevant to the Commission's expanded investigation of sexual harassment in American Apparel's workplace, the company's knowledge of such harassment, and its responses (or lack thereof) to sexual harassment complaints. Therefore, this Court should affirm the district court's order enforcing the Commission's subpoena because American Apparel's responses to the Commission's requests for documents and information were insufficient to assert privilege or work product protection. II. American Apparel has waived any attorney client privilege or work product protections. In Burlington Northern, in addition to emphasizing that boilerplate objections or blanket refusals to produce contested documents "are insufficient to assert a privilege" (408 F.3d at 1149), this Court held that such conduct can result in waiver of the privilege the non-compliant party is attempting, ineffectively, to assert. 408 F.3d at 1149-50. The Court set out the following factors to be considered in determining, on a case-by-case basis, whether such a waiver occurred: the degree to which the objection or assertion of privilege enables the litigant seeking discovery and the court to evaluate whether each of the withheld documents is privileged (where providing particulars typically contained in a privilege log is presumptively sufficient and boilerplate objections are presumptively insufficient); the timeliness of the objection and accompanying information about the withheld documents ...; the magnitude of the document production; and other particular circumstances of the litigation that make responding to discovery unusually easy ... or unusually hard. 408 F.3d at 1149. The Court further explained that "[t]hese factors should be applied in the context of a holistic reasonableness analysis, intended to forestall needless waste of time and resources, as well as tactical manipulation of the rules and the discovery process." Id. In Burlington Northern, this Court upheld the district court's order requiring the company to produce documents as to which it had untimely asserted, and thus waived, its privilege by filing a privilege log five months late. Id. In this case, the district court ordered American Apparel to produce the subpoenaed information when the company never filed a privilege log, or otherwise identified the documents it seeks to protect, in the two years since the Commission issued its subpoena. As in Burlington Northern, "this fact alone ... immunize[s] the district court's ruling from reversal under the standard" set out above. Id. See also Flanagan, 2008 WL 2073952, at *5, *7 (privilege was waived where for five months plaintiff did not identify documents being withheld and gave no substantive explanation to support the asserted privileges beyond restating explanations given in objections in response to interrogatories); Eureka Financial Corp., 136 F.R.D. at 182-83 ("Whether a responding party states a general objection to an entire discovery document on the basis of privilege, or generally asserts a privilege objection within an individual discovery response, the resulting ‘blanket objection' is decidedly improper. This fact should no longer be ‘news' to a responding party."), citing Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 541-42 (10th Cir.1984) (holding that a blanket, non-specific attorney client and work product privilege objection was insufficient and effected a waiver of the privilege). Accordingly, this Court should affirm the district court's order enforcing the Commission's subpoena because American Apparel waived the attorney client privilege and work product immunity it now attempts to assert on appeal. III. The Commission has demonstrated the requisite need for the subpoenaed documents to override any claimed privilege or protection. Even if American Apparel has not waived its asserted protections by failing properly to assert them, the district court's order enforcing the subpoena should be affirmed. The Commission is entitled to the information it seeks because it can demonstrate that it has a "substantial need of the materials" and it "is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Fed.R.Civ.P. 26(b)(3). Even if the documents contain mental impressions (which is impossible to know absent a more specific explanation by American Apparel), the Commission is entitled to them because it can show that the documents reveal American Apparel's responses to complaints of sexual harassment, which are "at issue" in this investigation, and the Commission has a compelling need for the documents, which are unavailable elsewhere. Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573, 577 (9th Cir. 1992) (holding that "opinion work product may be discovered and admitted when mental impressions are at issue in a case and the need for the material is compelling") (citations omitted). Also see 8 C. WRIGHT, A. MILLER & R. MARCUS, FEDERAL PRACTICE AND PROCEDURE, Civ.2d, § 2026 at *13 & n.20 (2008) (work product doctrine does not apply where the materials sought are "directly at issue") (citation omitted). This is not simply a case in which a private party, in contested litigation, is invoking discovery procedures to obtain documents. The Commission is a federal agency charged with vindicating the public interest – not a private attorney representing a group of plaintiffs. The Supreme Court has recognized that "[w]hen the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination." General Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 326 (1980). See also EEOC v. Waffle House, Inc., 534 U.S. 291, 296 (2002) (stating that "[o]nce a charge is filed, . . . the EEOC is in command of the process" and that the Commission vindicates the public interest even when it pursues victim-specific relief). Because of the public interest at stake, application of work product doctrine must take into account the Commission's broad statutory authority to access all documents that may shed light on its investigation of a Title VII charge of sexual harassment, including the expanded scope of the investigation (beyond the claim of the initial Charging Party) in this case. As the Commission explained in its determination on the petition to revoke or modify the subpoena, the Commission is investigating whether other women have been subjected to sexual harassment, whether American Apparel knew or should have known about such harassment, and whether it took (or failed to take) prompt corrective and preventive measures to address such harassment. AER97- 98. As the Commission further explained, "[i]nsufficient responses by the employer to complaints of sexual harassment may contribute to the severity or pervasiveness of the hostile work environment." AER101. Because the severity or pervasiveness of harassment is a critical element of establishing a violation of Title VII, obtaining information about other complaints and American Apparel's response to them is clearly critical to the Commission's investigation. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (Title VII is violated when sexual harassment "is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment"). Notwithstanding American Apparel's arguments to the contrary (Opening br. at 17-20), this information is relevant to and directly at issue in the Commission's investigation, particularly with respect to coworker harassment, regardless of whether American Apparel has asserted an affirmative defense. The information is relevant because liability for coworker harassment turns on proof of an employer's negligence in responding to harassment about which it knew or should have known. See Faragher v. City of Boca Raton, 524 U.S. 775, 799-801 (1998) (the Supreme Court declined to disturb the general agreement among the circuits that a negligence standard governs employer liability for coworker harassment); Swinton v. Potomac Corp., 270 F.3d 794, 803-04 (9th Cir. 2001) (observing that the negligence standard still applies to sexual harassment by coworkers, and explaining that "the chief difference is that in the negligence context, the plaintiff bears the burden of proving the employer's failure to respond adequately to the harassment, while, in a vicarious liability regime [under Faragher], the defendant must establish the corrective action as an affirmative defense") . Thus, the subpoenaed information is crucial to the Commission's investigation. The documents created on American Apparel's behalf in the course of investigations into sexual harassment complaints against the company, and the company's response to those complaints, have direct bearing on whether American Apparel has an effective policy against sexual harassment. Contrary to American Apparel's assertion (Opening br. at 16), throughout this action the Commission has asserted its need for information concerning the effectiveness of the company's harassment policy. Whether it is viewed as an affirmative defense (id. at 17-20), or as an issue of whether the company had notice of the existence of a sexually hostile workplace under a negligence standard, this material is "at issue" in the Commission's investigation, and the Commission's need for it is therefore "compelling" within the meaning of Holmgren. Indeed, American Apparel effectively concedes the potential relevance of its undisclosed documents when it asserts to this Court that the district court should have conducted an in camera review of these materials. Opening br. at 17. Of course, here, the district court had no occasion to conduct such a review because American Apparel refused to make the material available. Flanagan, 2008 WL 2073952, at *4 ("in camera review ‘is not to be used as a substitute for a party's obligation to justify its withholding of documents'") (citation omitted). The company should not now be permitted to complain that the district court failed to pursue an action that American Apparel itself prevented the court from undertaking. Flanagan, 2008 WL 2073952, at *4 ("[t]he party with the burden must make a sufficient showing to create a privilege issue before in camera review is appropriate") (emphasis in original), citing Weiner v. FBI, 943 F.2d 972, 979 (9th Cir. 1991). This Court should affirm the district court's order enforcing the Commission's subpoena to prevent further delay of the Commission's efforts to investigate whether American Apparel unlawfully tolerates sexual harassment in the workplace. CONCLUSION The Commission urges this Court to uphold and affirm the district court's order enforcing the administrative subpoena. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel _________________________________ DONNA J. BRUSOSKI Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-7049 donna.brusoski@eeoc.gov STATEMENT OF RELATED CASES This appeal, No. 08-55262, is not related to any other known case pending in this Court. CERTIFICATE OF COMPLIANCE I hereby certify that this brief is proportionally spaced, has a typeface of 14- point Times New Roman, and contains 5284 words according to the word count of the computer program used to prepare the brief. _________________________________ Donna J. Brusoski CERTIFICATE OF SERVICE I, Donna J. Brusoski, hereby certify that I served copies of the foregoing brief, this 20th day of August, 2006 by Fed Ex, to the following: Adam Levin Taylor S. Ball MITCHELL SILBERBERG & KNUPP LLP 11377 West Olympic Blvd. Los Angeles, CA 90064 Joyce E. Crucillo Chief Legal Counsel American Apparel, Inc. 747 Warehouse Street Los Angeles, CA 90021 ______________________ DONNA J. BRUSOSKI Attorney EEOC, Office of General Counsel 1801 L Street, N.W., Washington, D.C. 20507 (202) 663-7049 donna.brusoski@eeoc.gov *********************************************************************** <> <1> “AER” refers to Appellant’s Excerpts of Record. “DN” refers to the district court docket number. <2> During the investigation, American Apparel produced a list of the names of female employees who worked at the Los Angeles facility during the relevant period (subpoena request number 1), but it refused to produce the requested contact information for these women. AER39-85. <3> In district court, American Apparel argued that subpoena request number 1 is “indefinite, overly broad, and excessively burdensome” and “irrelevant and not material” to the charge, and that request number 2 “seeks privileged information” and is “irrelevant and immaterial” to the charge. DN7. The Commission advanced the same positions reflected in the determination on the petition to revoke or modify the subpoena, set forth above. DN2, 10. <4> There is no support in the record for American Apparel’s contention (Opening Br. at 4) that the judge did not consider the parties’ briefing before ruling on this matter. <5> American Apparel argued below that the evidence sought was not relevant to the Commission’s investigation; however, it does not advance that argument in its opening brief to this Court. <6> Because of its failure to challenge or respond to the broader request, regardless of the ultimate disposition of its privilege and work product assertions, American Apparel remains obligated, under the subpoena, to turn over records of any other complaints – formal or informal, external or internal – and of any internal investigations prompted by those complaints. Any objections to production of such records have been waived. <7> Nor did the company comply with the Commission’s order on the petition to revoke or modify the subpoena by presenting a descriptive privilege log, which would have allowed the Commission to “assess the applicability of the privilege[s]” asserted. Rule 26(b)(5). AER104.