No. 12-15238 ____________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ____________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner/Appellant, v. BASHAS’ INC., Respondent/Appellee. ____________________________________________________ On Appeal from the United States District Court for the District of Arizona (No. 2:09cv209-RCB) ____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PETITIONER/APPELLANT P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel ELIZABETH E. THERAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Floor Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT REGARDING STATUTORY ADDENDUM . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Course of Proceedings . . . . . . . . . . . . . . . . . . 2 B. Statement of the Facts . . . . . . . . . . . . . . . . . . . . 3 1. The Commissioner’s Charge . . . . . . . . . . . . . . . . . . 3 2. Parra v. Bashas’ & the “Parra charges” . . . . . . . . . . . . 7 3. The Subpoena Enforcement Action . . . . . . . . . . . . . . . . 9 C. District Court Decisions . . . . . . . . . . . . . . . . . . 10 1. Order enforcing subpoena . . . . . . . . . . . . . . . . . . . . 10 2. Order entering confidentiality order . . . . . . . . . . . . . . 23 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . 28 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . 29 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 The Confidentiality Order Entered by the District Court Is Contrary to Law and Would Significantly Obstruct and Interfere with the EEOC’s Legitimate Law Enforcement Activities. . . . . . . . . . . . . . . . 30 A. Nothing about this case warrants judicial imposition of confidentiality requirements that exceed the extensive protections adopted by Congress in Title VII and other statutes. . . . 31 1. The existing statutory and regulatory framework of confidentiality protections . . . . . . . . . . . . . . . . . 31 2. The confidentiality scheme adopted by Congress in Title VII should be respected. . . . . . . . . . . . . . . . . . . . . .37 B. The confidentiality order is extremely broad and far-reaching and will impose significant obstacles on the EEOC’s enforcement efforts in this and other cases. . . . . . . . . . . . . . . . . . . .43 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53 STATEMENT OF RELATED CASES . . . . . . . . . . . . . . . . . . . . . 54 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . 55 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Chrysler Corp. v. Brown, 441 U.S. 281 (1979) . . . . . . . . . . . . 35 Crystal v. United States, 172 F.3d 1141 (9th Cir. 1999) . . . . . . 16 David H. Tedder & Assocs., Inc. v. United States, 77 F.3d 1166 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . 13 EEOC v. Ala. Dep’t of Youth Servs., 2006 WL 1766785 (M.D. Ala. 2006) . . . . . . . . . . . . . . 25, 39, 42 EEOC v. Aon Consulting, Inc. 149 F. Supp. 2d 601 (S.D. Ind. 2001) . . . . . . . . . . 24, 38, 39, 42 EEOC v. Associated Dry Goods, 449 U.S. 590 (1981) . . . . . .33, 38, 50 EEOC v. C&P Tel. Co., 813 F. Supp. 874 (D.D.C. 1993) . . 25, 36, 39, 43 EEOC v. Children’s Hosp. Med. Ctr., 719 F.2d 1426 (9th Cir. 1983) (en banc) . . . . . . . . . . . . . . .11 EEOC v. City of Milwaukee, 54 F. Supp. 2d 885 (E.D. Wisc. 1999) . . .39 EEOC v. Fed. Express Corp., 558 F.3d 842 (9th Cir. 2009) . . . . passim EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071 (9th Cir. 2001) . . . 11 EEOC v. Kidder Peabody, Peabody & Co., Inc., No. M18-304, 1992 WL 73344 (S.D.N.Y. Apr. 2, 1992) . . . . . . . . . 39 EEOC v. Kronos, Inc., No. 09mc0079, 2011 WL 1085677 (W.D. Pa. Mar. 21, 2011) . . . . . . . 39 EEOC v. Morgan Stanley & Co., 132 F. Supp. 2d 146 (S.D.N.Y. 2000). . . . . . . . . . . . . . . . . . . . . . . . .38, 39 EEOC v. Sears, Roebuck & Co., 885 F.2d 875, 1989 WL 107831 (9th Cir. 1989) . . . . . . . . . . . . 41 EEOC v. Shell Oil, 466 U.S. 54 (1984) . . . . . . . . . . . . . 31, 48 EEOC v. Technocrest Sys., 448 F.3d 1035 (8th Cir. 2006) . . . . . . 41 FCC v. Schreiber, 381 U.S. 279 (1965) . . . . . . . . . . . . . . 38, 4 FDIC v. Garner, 126 F.3d 1138 (9th Cir. 1997) . . . . . . . . . . . .16 FMC v. Port of Seattle, 521 F.2d 431 (9th Cir. 1975) . . . . . . . . 44 FTC v. Std. Oil Co. of Cal., 449 U.S. 232 (1980) . . . . . . . . . 44 FTC v. Texaco, Inc., 555 F.2d 862 (D.C. Cir. 1977) . . . . . . . 43, 44 In the Matter of Roman Catholic Archbishop of Portland in Or., 661 F.3d 417 (9th Cir. 2011) . . . . . . . . . . . . . . . . . . . . 29 McDonnell Douglas Corp. v. EEOC, 922 F. Supp. 235 (E.D. Mo. 1996) . .35 Phillips v. Gen. Motors Corp., 307 F.3d 1206 (9th Cir. 2002) . . . 29 United States v. Morton Salt Co., 338 U.S. 632 (1950) . . . . . . . .11 United States v. Powell, 397 U.S. 48 (1964) . . . . . . . . . . .11, 15 Univ. of Med. & Dentistry of N.J. v. Corrigan, 347 F.3d 57 (3d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50 Univ. of Pa. v. EEOC, 493 U.S. 182 (1990) . . . . . . . . . . . .37, 38 STATUTES 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . .1 42 U.S.C. § 2000e-5 . . . . . . . . . . . . . . . . . . . . . . .36, 32 42 U.S.C. § 2000e-8 . . . . . . . . . . . . . . . . . . . . .12, 36, 37 42 U.S.C. § 2000e-9 . . . . . . . . . . . . . . . . . . . . . . . .1, 2 42 U.S.C. § 2000e-12 . . . . . . . . . . . . . . . . . . . . . . . . 34 Freedom of Information Act (FOIA), 5 U.S.C. § 552 . . . . . . . .passim Nat’l Labor Relations Act, 29 U.S.C. § 161 . . . . . . . . . . . . 1, 2 Privacy Act of 1974, 5 U.S.C. § 552a(b) . . . . . . . . . . . . . . .33 Trade Secrets Act, 18 U.S.C. § 1905 . . . . . . . . . . . . . . . . .33 REGULATIONS & RULES 29 C.F.R. § 1601.22 . . . . . . . . . . . . . . . . . . . . . . .32, 33 29 C.F.R. § 1610.19 . . . . . . . . . . . . . . . . . . . . . . .34, 35 Fed. R. App. P. 4(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. App. P. 32(a) . . . . . . . . . . . . . . . . . . . . . . . .56 Ninth Circuit Rule 28.2-6 . . . . . . . . . . . . . . . . . . . . . 55 OTHER AUTHORITIES EEOC Compliance Manual, Section 83, available at http://www.eeoc.gov/eeoc/foia/section83.cfm . . . . . . . . . . .passim EEOC FOIA Guide, Section XI, available at http://www.eeoc.gov/eeoc/foia/hb-11.cfm . . . . . . . . . . . . .33, 34 EEOC Order No. 201.001, Records Management (Dec. 3, 2003), available at http://www.eeoc.gov/eeoc/internal/records_management.cfm . . . . . . 51 U.S. Equal Employment Opportunity Comm’n, Fiscal Year 2011 Performance & Accountability Report, available at http://www.eeoc.gov/eeoc/plan/2011par.cfm . . . . . . . . . . . . . 46 U.S. Equal Employment Opportunity Comm’n, FY 2013 Congressional Budget Justification Submitted to the Congress of the United States, available at http://www.eeoc.gov/eeoc/plan/2013budget.cfm . . . . . . . . . . . . 46 STATEMENT OF JURISDICTION a. The district court had subject matter jurisdiction over this subpoena enforcement action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-9 (incorporating by reference 29 U.S.C. § 161 of the National Labor Relations Act). b. This Court has jurisdiction over this appeal from the district court’s final orders enforcing the EEOC’s subpoena and entering a confidentiality order pursuant to 28 U.S.C. § 1291. See EEOC v. Fed. Express Corp., 558 F.3d 842, 845 (9th Cir. 2009). c. The district court entered its initial order enforcing the subpoena and ordering the parties to submit a proposed confidentiality order on September 30, 2011. I-ER-22.<1> The district court entered its final confidentiality order on December 8, 2011. I-ER-1. The EEOC filed a timely notice of appeal on February 3, 2012. II-ER-86. See Fed. R. App. P. 4(a)(1)(B). STATEMENT OF THE ISSUE Did the district court err in entering a broad confidentiality order in this case that goes far beyond the rules Congress set for EEOC investigations, particularly in light of its own conclusion after an evidentiary hearing that the EEOC had not engaged in any wrongdoing? (This issue was raised in the district court at R.102 and 107, and ruled on by the district court at R.104 (I-ER-84), R.109 (I-ER-11-21), and R.110 (I- ER-1-10).) STATEMENT REGARDING STATUTORY ADDENDUM Please see statutory addendum bound with this brief. STATEMENT OF THE CASE A. Course of Proceedings This is a subpoena enforcement action pursuant to Section 710 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-9, which incorporates by reference Section 11 of the National Labor Relations Act, 29 U.S.C. § 161. After an evidentiary hearing that spanned three days, the district court ordered the subpoena enforced as modified and ordered the parties to “file with the court, for its review and approval, a joint proposed confidentiality order.” I-ER-84. The parties were unable to agree on the terms of a confidentiality order, and accordingly submitted separate proposals to the district court. II-ER-89, 122. The district court entered Bashas’ proposed confidentiality order, with slight modifications, on December 8, 2011. I-ER-1, 11. The EEOC appeals from the entry of the confidentiality order in this case. B. Statement of the Facts 1. The Commissioner’s Charge This subpoena enforcement action involves the EEOC’s attempts to investigate a Commissioner’s Charge of national origin discrimination against the respondent, Bashas’ Inc. On May 9, 2007, then-Vice Chair Leslie E. Silverman issued a Commissioner’s Charge alleging that Bashas’ “has, since at least May 2004, violated Title VII by discriminating against Hispanics due to their national origin. This discriminatory activity includes, but is not limited to, failing to pay Hispanic employees comparable wages to non-Hispanic employees and failing to promote Hispanics into Management positions.” II-ER-200. As a part of its investigation of this charge, beginning in mid-May 2007, the EEOC requested relevant employee and payroll information from Bashas’, including “general information regarding the Respondent and its employees,” and asked Bashas’ to identify “computerized or machine readable files containing general information (for example, date of application, date of hire, educational history, employment history, reason for non-selection, pay rate, work assignments, test results, training, promotions, transfers, terminations, job status) for its employees or applicants.” II-ER-217-18. Bashas’ refused to respond in full to the EEOC’s request for information, and accordingly the EEOC issued a first set of subpoenas in July 2007. II-ER-132, 208. Between July 2007 and March 2008, the EEOC and Bashas’ went back and forth several times, with the EEOC requesting that Bashas’ provide the full information requested in the July 2007 subpoenas and Bashas’ providing some, but not all, of the information requested. II-ER-136, 213, 217-18 (summary), 221, 229, 260, 272. On May 28, 2008, the EEOC issued the subpoena at issue in this case, PHX-08-24, to Bashas’. II-ER-142. The subpoena requested (1) specific electronic employee data, with social security numbers redacted, from May 1, 2004, through the date of the subpoena, in an approved electronic format; (2) that the data be on clearly labeled CDs including a paper copy of the directory for each CD; (3) that Bashas’ provide a definition for each of the fields of information used in each of the files; and (4) at least two “hard copy” personnel files or print screens for employees or applicants who have files on the electronic records being provided. Id. Bashas’ responded to the subpoena by a letter dated June 13, 2008. II-ER-256. In its letter, Bashas’ essentially complained that the subpoena was simply a reiteration of the EEOC’s prior Request for Information (“RFI”) dated February 21, 2008. Id. Bashas’ maintained that the information requested by the EEOC in the RFI and in the subpoena was overbroad and that it required a confidentiality agreement. Bashas’ also maintained that it could not “examine let alone determine the relevancy of this or any other request for production because the Commission has not yet provided the Company with sufficient notice of the basis of this Charge or this request.” Id. The company refused to provide more than one hard copy employee file or any data pertaining to job applicants, and maintained that a number of the data fields in question were either empty or contained “inaccurate or inconsistent information.” II-ER-257. Finally, Bashas’ reiterated that it would not produce any of the subpoenaed material “unless and until the Commission responds to Bashas’ concerns.” II-ER-258. The company stated that it “will not produce any electronic data or hard copy files until an appropriate confidentiality agreement is executed” due to its “grave concerns about where any information shared with the EEOC will go.” Id. It wrote: [I]n Parra, et al v. Bashas, the attorney for the class, Jocelyn Larkin, demonstrated that she was aware of a charge of discrimination against Bashas’, then being investigated by the EEOC, during court proceedings for the Parra action, despite the fact that she was not representing the charging party nor seemingly had any involvement with that unrelated charge. Ms. Larkin’s co-counsel on the Parra case, Davis, Cowell and Bowe, represents the United Food and Commercial Worker’s [sic] Union. As you may know, the UFCW is involved in a vicious smear campaign against Bashas’. To the extent any information relating to this Charge is shared with either of these outside entities or any other outside entity, we have serious concerns and our prior requests for assurances have not been sufficiently addressed. In prior letters, we have discussed our concern that this charge is being used as a vehicle to relitigate the Parra case after an adverse ruling. In light of this, we continue to request assurances from your agency that the EEOC and this Subpoena will not be used as a tool to circumvent the Rules of Civil Procedure. Id. 2. Parra v. Bashas’ & the “Parra charges” Parra v. Bashas’ was a separate, private Title VII suit filed in 2002 alleging that Bashas’ pay policies and practices discriminated against Hispanic workers at Food City stores in violation of § 1981 and Title VII. See Parra et al. v. Bashas’ Inc., No. 2:02cv591 (D. Ariz. filed Apr. 4, 2002). The suit was based on charges of discrimination filed by charging parties Jose Parra, Gonzalo Estrada, and six others (the “Parra charges”). II-ER- 308-09. The Parra charges were all initially closed in 2002, when charging parties Parra and Estrada requested right-to-sue letters from the EEOC. II-ER-315. In October 2003, the district court entered a confidentiality order in Parra governing disclosure of certain materials to individuals not involved with the case and, apparently, restricting the plaintiffs’ access to certain documents in discovery. Id. After the district court in Parra denied the plaintiffs’ motion for class certification on their pay claims in March 2006, the record reflects that there was correspondence and conversation between Jocelyn Larkin, counsel for the Parra plaintiffs, Elizabeth Lawrence, counsel for the United Food and Commercial Workers’ Union, and Mary Jo O’Neill, the Regional Attorney at the EEOC’s Phoenix District Office, regarding the existence and the status of the Parra litigation. II-ER-284-85, 305-06. The correspondence reflects that Larkin and Lawrence forwarded publicly filed, non-confidential documents in Parra to the EEOC. Id. On April 14, 2006, the EEOC sent a notice to Bashas’ that it was reopening the investigation on the Parra charges, and on May 11, 2006, issued a subpoena to Bashas’ requesting wage information and personnel files pertaining to those charges. II-ER-311 (subpoena), III-ER-476. Bashas’ petitioned to revoke the subpoena, claiming that the EEOC lacked authority to issue the subpoena because the Parra and Estrada claims were already in litigation, the other cases were closed, and the subpoena was in any case an abuse of process. II-ER-314. On September 12, 2006, the EEOC sent Bashas’ a letter indicating that all eight Parra charges were being reopened for investigation, to which Bashas’ again objected on the same grounds. II-ER-320, 322. In June 2007, the EEOC notified Bashas’ that it was ceasing further processing of the Parra and Estrada charges. II-ER-328. 3. The Subpoena Enforcement Action On February 2, 2009, at 11:35 a.m., the EEOC filed this action in district court seeking to enforce subpoena PHX-08-24, issued on Commissioner Silverman’s charge. III-ER-635. Later that same day, at approximately 2:50 p.m., the district court in Parra denied the plaintiffs’ motion for discovery as to Bashas’ pay policy after April 2004. I-ER-75- 76. In April 2009, Bashas’ filed a motion to allow limited discovery for purposes of determining whether the Commissioner’s Charge had been brought for an improper purpose or whether confidential information had been disclosed to the Parra litigants, as Bashas’ alleged. III-ER-635. Argument on the motion was heard on September 21, 2009, and the district court granted it on September 30. III-ER-638. On December 24, 2009, the district court entered another order, in response to a motion by the EEOC, clarifying and limiting the discovery at issue, principally by temporal scope. Id. After the conclusion of discovery, on August 18, 2010, the EEOC renewed its original motion for an order to show cause as to why the subpoena should not be enforced. III-ER-640. Bashas’ opposed the motion, and the district court held a three-day evidentiary hearing on the matter from November 16-18, 2010. III-ER-642-43. At the hearing, the district court “heard the testimony of 20 witnesses and admitted 45 exhibits into evidence.” I-ER-23; R.97, 98, 99, 101 (hearing transcripts). C. District Court Decisions 1. Order enforcing subpoena On September 30, 2011, the district court entered an order granting the EEOC’s motion to enforce the subpoena, but narrowed the scope of the subpoena somewhat and also directed the parties to submit proposed confidentiality orders to govern the subpoena’s administration. I-ER-22. The court began by observing that, in deciding whether to enforce EEOC subpoenas, “the Ninth Circuit applies a composite of the Powell and Morton Salt factors.” I-ER-26 (Order at 5) (citing United States v. Powell, 397 U.S. 48 (1964), and United States v. Morton Salt Co., 338 U.S. 632 (1950)). The court explained: Viewing “[t]he scope of the judicial inquiry in an EEOC or any other subpoena enforcement proceeding” as “quite narrow[,]” EEOC v. Children’s Hosp. Med. Ctr., 719 F.2d 1426, 1428 (9th Cir. 1983) (en banc), … the Ninth Circuit deems three “questions” to be “critical” to that inquiry…. Those questions are: “(1) whether Congress has granted the authority to investigate; (2) whether procedural requirements have been followed; and (3) whether the evidence is relevant and material to the investigation.” EEOC v. Federal Express Corp., 558 F.3d 842, 848 (9th Cir. 2009) …. It is the agency’s burden to establish those three factors. Children’s Hospital, 719 F.2d at 1428 (citations omitted). Once it does, “the subpoena should be enforced unless the party being investigated proves the inquiry is unreasonable because it is overbroad or unduly burdensome.” … [T]he Ninth Circuit has explained that “courts must enforce administrative subpoenas unless ‘the evidence sought by the subpoena [is] ‘plainly incompetent or irrelevant’ to ‘any lawful purpose’ of the agency.’” [EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071, 1076 (9th Cir. 2001)] I-ER-26-27 (emphasis in district court opinion). Turning to its analysis of the Children’s Hospital factors, the district court found that the first two factors were not credibly at issue in this case. The court observed that the congressional mandate of Title VII gives the EEOC a “broad [statutory] right of access to relevant information” that “‘entitle[s] the EEOC to inspect and copy ‘any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by [Title VII] and is relevant to the charge under investigation.’’” I-ER-33 (Order at 12) (internal citations omitted). The court then noted that “[i]n issuing the May 28, 2008 subpoena, the EEOC followed the procedural requirements and Bashas’ does not contend otherwise.” I-ER-34 (Order at 13). The court then turned to the third Children’s Hospital factor: whether the information subpoenaed was “relevant and material” to the investigation. I-ER-35 (Order at 14). The court stated: Title VII gives the EEOC considerable leeway in accessing evidence as part of its statutory duty to investigate employment discrimination. The EEOC is entitled to “any evidence of any person being investigated … that relates to unlawful employment practices covered by [Title VII] and is relevant to the charge under investigation.” 42 U.S.C. § 2000e-8(a)…. [T]he Federal Express standards recited in Bashas’ II continue to guide the relevancy inquiry herein: [C]ourts must enforce administrative subpoenas unless the evidence sought by the subpoena is plainly incompetent or irrelevant to any lawful purpose of the agency…. Relevancy in this context is determined in terms of the investigation rather than in terms of evidentiary relevance…. Moreover, the relevancy requirement is not especially constraining…. The term relevant is generously construed to afford[ ] the Commission access to virtually any material that might cast light on the allegations against the employer. Bashas’ II, 2009 WL 3241763, at *16 (internal quotation marks and citations omitted). The “might cast light” formulation encompasses “an indication of a realistic expectation rather than an idle hope that something may be discovered.” David H. Tedder & Associates, Inc. v. U.S., 77 F.3d 1166, 1169 (9th Cir. 1996) (internal quotation marks and citation omitted) …. I-ER-36-37 (Order at 15-16). The court then found that, while nearly all of the subpoenaed data was relevant to the Commissioner’s Charge, the categories of employee gender and union affiliation details were not, and accordingly held that the subpoena was not enforceable as to those two categories only. I-ER-40 (Order at 19). With respect to overbreadth, the district court found that “[i]t is Bashas’ burden, not the EEOC’s, to prove that the subpoena is overbroad…. Bashas’ has not met its difficult burden of proving overbreadth.” I-ER-43 (Order at 22). The court also noted that Bashas’ offered “no justification, evidentiary or otherwise, for limiting the time frame of the subpoenaed data to one year prior to the date of the Charge, … as opposed to the roughly four years indicated in the subpoena.” I- ER-43-44 (Id. at 22-23). The court did find, however, that there was some merit to Bashas’ argument that the subpoena as originally written was unduly burdensome. It found that “Bashas’ has shown that the personnel and financial burden of full compliance would be ‘great compared to the resources [Bashas’] has at its disposal’ …. This proof by Bashas’ is unrefuted in every significant aspect ….” I-ER-56 (Opinion at 35). Turning to abuse of process, the court summarized Bashas’ argument as being that “the EEOC undertook this investigation in bad faith and with an improper motive, i.e., ‘to bolster the struggling Parra litigation.’” I-ER-58 (Opinion at 37). The court also noted that, in its closing brief, Bashas’ abandoned its earlier argument that “the EEOC had another ulterior motive for this investigation, i.e., that the EEOC was endeavoring to influence unionization efforts aimed at Bashas’[, r]eflective of the absence of any such proof during the hearing[.]” I-ER-58 (Opinion at 37 n.9). The court found that “on this record Bashas’ has not met its burden of showing abuse of process in any form.” I-ER-60 (Opinion at 39). Beginning with the legal framework, the court observed that while the “Ninth Circuit does not employ the four Powell criteria for enforcement to non-IRS summons [sic], it recognizes that such summonses are subject to Powell’s proscription against abuse of process.” I-ER-60 (Opinion at 39). The court explained that “[e]xamples of such abuse would be ‘if the summons had been issued for an improper purpose such as to harass the [respondent] or to put pressure on him to settle a collateral dispute, or for any other purpose reflecting on the good faith of the particular investigation.” Id. (quoting Powell, 379 U.S. at 58). Ultimately, the court observed, the Ninth Circuit has held that “‘the dispositive question in each case is whether the [agency] is pursuing the authorized purposes in good faith.’” I-ER-61 (Id. at 40) (quoting Crystal v. United States, 172 F.3d 1141, 1144-45 (9th Cir. 1999) (internal quotation marks and citations omitted)). The court noted that the Ninth Circuit’s case law has not provided much guidance on the respondent’s burden of proof as to abuse of process, except to “refer to that burden as ‘heavy,’” and that “in the Ninth Circuit and elsewhere, rarely does a court find that enforcement of an agency subpoena results in abuse of process.” Id. Accordingly, the court reasoned: The court will thus look to [FDIC v. Garner, 126 F.3d 1138 (9th Cir. 1997)]. There, after finding that the FDIC had satisfied the Children’s Hospital factors, the Ninth Circuit required the respondents to come forth with “specific evidence of improper intent[,] … bad faith or improper purpose[.]” See Garner, 126 F.3d at 1146 (citation omitted). “Absent such a showing,” the Court held that “no basis exist[ed] for refusing to enforce the subpoenas[,]” despite respondents’ complaint that the FDIC issued those subpoenas for the improper purpose of harassment. Id. What this court gleans from Garner is that specificity is an integral part of a respondent’s heavy burden to show abuse of process or institutionalized lack of good faith. Further, however a “heavy burden” is defined, surely it demands more than conjecture and innuendo. Finally, the need for specificity is especially acute here given that Bashas’ was permitted counter-discovery, and two evidentiary hearings were held — one prior to discovery and the other after. I-ER-62 (Opinion at 41). Viewed in light of this standard, the district court found there was no evidence, apart from one “selected snippet of testimony,” to support Bashas’ allegations that the EEOC was conducting an impermissible “compliance review” rather than a legitimate investigation pursuant to its statutory authority. I-ER-64 (Opinion at 43). The court also rejected Bashas’ attempt to portray Charles Rahill as “some sort of rogue EEOC investigator” whose bad faith could be imputed to the EEOC, as well as its argument that the research he conducted in drafting the Commissioner’s Charge was so deficient as to constitute bad faith. I-ER- 64-65 (Id. at 43-44). The court observed, “As an EEOC investigator, who had been assigned to draft the Commissioner’s Charge, Mr. Rahill cannot be faulted for the nature of that task. That is especially so given the administrative layers of review to which that draft Charge was subject.” I-ER-66 (Id. at 45). The court also pointed out the testimony in the record that Commissioner Silverman was the one responsible for initiating the charge against Bashas’, and that there was nothing about her involvement in the process, “and Bashas’ did not come forth with any evidence, demonstrating bad faith on the part of the Commissioner herself.” I-ER-67 (Id. at 46). The court also found that there was no support for Bashas’ argument that the Commissioner’s Charge was a product of the EEOC’s “‘efforts to use its power to force Bashas’ to produce wage information’ in this action … which this court had previously denied to the Parra plaintiffs.” I-ER-67-68 (Opinion at 46-47). The court observed: To prove what it vehemently maintains is the “true purpose of this investigation and subpoena[,] to bolster Parra[,]” Bashas’ again relies heavily upon timing…. More particularly, Bashas’ characterizes the EEOC as having “closed and reopened the underlying Parra charges in sync with the shortcomings in that litigation.” … Bashas’ also renews its argument that the time frame of the subpoena’s request for employee data evinces an improper motive by the EEOC. Despite discovery and two evidentiary hearings, Bashas’ has not come forth with any specific, direct evidence corroborating that view…. [T]he documentary evidence which Bashas’ acquired during discovery, and upon which it now focuses, is facially innocuous and Bashas’ has not directed the court to any additional proof convincing the court otherwise. I-ER-68 (Opinion at 47). The court noted that there was nothing improper about the conversations in the record between the EEOC and Ms. Larkin, observing that the communications were all about publicly available documents and that language in the correspondence “shows that in dealings with the EEOC, Parra’s counsel was aware of its confidentiality obligations under Parra.” I-ER-69-70 (Opinion at 48-49). The court stated that “it would be sheer speculation to attribute any improper motive to the EEOC on this basis.” I-ER-70 (Id. at 49). The court also found that there was nothing per se improper about the EEOC’s reopening and closing the Parra charges in connection with the subpoena of May 11, 2006, “including its timing.” Id. The court also rejected Bashas’ argument that there was a basis for a finding of bad faith in the EEOC’s handling of Bashas’ petition to revoke the May 2006 Parra subpoena. I-ER-71-72 (Id. at 50-51). It observed, “[w]ithout any further explanation, or other proof connecting Bashas’ petition to revoke to the issuance of the Commissioner’s Charge herein, the relationship between that petition and this Charge is simply too attenuated to support an inference of improper motive.” I-ER-72 (Id. at 51). The court found credible Ms. O’Neill’s testimony regarding Commissioner Silverman’s role in issuing the Commissioner’s Charge, and concluded that “[t]he record corroborates the view that this Charge was not attributable to any single factor, let alone the petition to revoke in Parra.” I-ER-73 (Id. at 52). The court then found that there was nothing about the present enforcement action or its timing that reflected bad faith. It noted that the original Order to Show Cause with respect to the Commissioner’s Charge was filed several hours before the district court issued its ruling in Parra denying further discovery. I-ER-75-76 (Id. at 54-55). The court observed: The foregoing undermines previous suggestions by Bashas’ that this OSC was filed as a direct response to the adverse ruling to the Parra plaintiffs. It would have been impossible for the EEOC to have known how this court would rule in Parra on plaintiffs’ motion to reopen discovery to include Bashas’ post-April 2004 wage data. Therefore, the court is now persuaded that although the time frame of this subpoena dovetails with that ruling, that is strictly coincidental. I-ER-76 (Id. at 55). The court also found credible Ms. Larkin’s testimony that she was unaware of the Commissioner’s Charge as of the time of her January 30, 2009, conference call with respondent’s counsel, and further observed that even if her testimony were not credible “Bashas’ has not come forth with specific proof showing improper motive based upon the timing of the filing of this enforcement action.” I-ER-76-77 (Id. at 55-56). Lastly, the court rejected Bashas’ arguments that the EEOC had engaged in illegal or bad faith conduct based on its investigator’s distribution of EEOC business cards in several of Bashas’ parking lots. The court found that “this record does not support a finding that the EEOC investigators’ distribution of business cards to Bashas’ employees in Bashas’ parking lots, is tantamount to acting in bad faith or with an improper motive.” I-ER-78-79 (Opinion at 57-58). The court further observed that “[n]one of [the interviewees] supported Bashas’ version of events. After hearing the testimony of all ten witnesses, and assessing their demeanor, it was readily apparent that from the employees’ standpoint these encounters were brief, five minutes at the outside, and fairly innocuous.” I-ER-80 (Id. at 59). The court concluded: Bashas’ did not meet its burden of proving abuse of process or lack of institutionalized good faith. This court cannot impute bad faith where it has not been substantiated with the requisite degree of proof. Nor, in the absence of any specific proof, will the court presume a direct causal connection between the EEOC’s actions herein and the Parra litigation, and, in turn, abuse of process or bad faith by the EEOC. I-ER-82-83 (Opinion at 61-62). Accordingly, the court ordered the subpoena enforced, but excluded all data related to employee sex and union status, and “shift[ed] to the EEOC the cost and labor associated with obtaining accurate requested data, as narrowed, from May 1, 2004 through December 31, 2007.” I-ER-83-84 (Id. at 62-63). At the end of the opinion, under the heading “Confidentiality Order,” the court stated: Lastly, given the unique situation which this subpoena enforcement action presents, the court will require the parties within ten (10) days of the date hereof to file with the court, for its review and approval, a joint proposed confidentiality order. I-ER-84 (Opinion at 63). In accordance with the court’s order, the parties negotiated but failed to agree on a proposed confidentiality order, instead submitting separate filings. The EEOC continued to maintain that “no confidentiality order is needed or appropriate in an investigation of a charge of discrimination,” but in compliance with the court’s order submitted a proposed confidentiality agreement that mirrored its existing obligations under the law. II-ER-122. Bashas’ submitted a much broader and more restrictive agreement, essentially the same as its original proposal. II-ER-89. 2. Order entering confidentiality order On December 8, 2011, the district court entered a confidentiality order closely mirroring Bashas’ proposal, along with an accompanying order explaining its reasoning. I-ER-1, 11. The court began by explaining what it believed was “the need for a confidentiality order here extending beyond the statutory and regulatory safeguards already in place.” I-ER-12. The court stated, “In the ordinary EEOC subpoena enforcement action, those safeguards would adequately protect a respondent/employer’s confidentiality concerns. This has been anything but an ordinary EEOC subpoena enforcement action though, as thoroughly discussed in prior court orders.” Id. The court summarized Bashas’ various accusations against the EEOC regarding abuse of process, and noted that, because “Bashas’ was unable to prove [its] theory with the requisite degree of proof,” “the court granted the EEOC’s renewed Order to Show Cause (‘OSC’)” to enforce the subpoena. I-ER-12-13. However, the court continued: Nonetheless, the hearing on that OSC heightened rather than allayed the court’s concerns as to the EEOC’s conduct herein. The court cannot turn a blind eye to the strong correlation between setbacks for the plaintiffs in the Parra litigation and the EEOC’s conduct herein. To be sure, Bashas’ did not establish that the initiation of the Commissioner’s Charge; the timing of the filing of this action; or the timing of other aspects of this investigation, such [sic] the EEOC’s requests for Bashas’ employee data, were tantamount to an abuse of process. The record as a whole, and especially the testimony of Ms. O’Neill, the Regional Attorney for the EEOC’s Phoenix District Office, leaves the court with grave concerns, however, regarding the close ties between the EEOC and counsel for the plaintiffs in Parra. That relationship gives the court even more pause at this juncture because to comply with the EEOC’s subpoena, Bashas’ must produce a fairly wide range of employee payroll and personnel data — data to which this court previously held that the Parra plaintiffs were not entitled. I-ER-13. In addressing the nature of the materials at issue in this case, the court acknowledged that “perhaps” the personnel and payroll data here was not as “‘exceptionally sensitive’” as the employment tests that courts had required to be kept confidential in other cases. I-ER-13 (quoting EEOC v. Aon Consulting, Inc., 149 F. Supp. 2d 601, 608 (S.D. Ind. 2001) (emphasis in district court decision)). “Likewise,” the court continued, “arguably the subpoenaed data herein is not as sensitive as the ‘personally identifiable medical information and records [of] other employees’ in EEOC v. Alabama Dep’t of Youth Services, 2006 WL 1766785, at *3 (M.D. Ala. 2006), which the EEOC was prohibited from disclosing to the charging party without prior court approval.” I-ER-14. However, the court reasoned, Partially due to the breadth of the subpoenaed employee data though, potentially it is quite sensitive. That data becomes even more sensitive taking into account the close nature of the relationship between the EEOC and counsel for the Parra plaintiffs, and the substantial similarity between the Commissioner’s Charge and the allegations in Parra. Indeed, the combination of those two factors renders a confidentiality order even more of a necessity here than in the foregoing cases. Bolstering this finding is the fact that a non-disclosure agreement under section 83 of the Compliance Manual, alluded to in the EEOC’s proposed order, would not sufficiently protect Bashas’ interests. See [EEOC v. C&P Telephone Co., 813 F. Supp. 874, 877 (D.D.C. 1993)] (EEOC did not adequately assure respondents that their interests would be protected by a section 83 non-disclosure agreement because it was “unclear how the EEOC effectively could enforce such an agreement[]”). In sum, the unique circumstances of this particular EEOC investigation mandate entry of a confidentiality order to safeguard Bashas’ interest in maintaining the confidentiality of its employee data. I-ER-14. With respect to the substance of the confidentiality order, the court began by observing that, while Bashas’ “explains how the parties arrived at an impasse,” “[r]ather than engaging in any meaningful dialogue with respect to the parties’ differences, the EEOC’s stance has continued to be one of intransigence.” I-ER-14-15. The court faulted the EEOC for “its ‘unwilling[ness] to enter into any order that goes beyond the requirements of … FOIA [Freedom of Information Act] or the confidentiality provided for in EEOC regulations.’” I-ER-15. According to the court, “[t]he EEOC’s response and proposed order is troubling, especially in the face of this court’s September 30, 2011, order. If this court were convinced that the existing statutory and regulatory protections were adequate, it would not have ordered the submission of a joint proposed confidentiality order.” I-ER-17. Thus, the court concluded, “a confidentiality order substantially in the form which Bashas’ proposes is necessary.” Id. The confidentiality order entered by the court covers virtually every aspect of the investigative process. I-ER-1-9. Among its key provisions are: ¶1(c): “‘Confidential Information’ means any document designated in good faith by counsel as confidential in accordance with the terms of this Order.” I-ER-2. ¶3: “Whenever a producing party provides any document to any party to this action which is entitled to confidential treatment pursuant to this Order, the producing party may designate the document as Confidential Information.” I-ER-2. ¶4: “Confidential Information shall be used solely for the purpose of the above referenced Charge and any resulting litigation and not in connection with any other action including any action arising out of the same underlying circumstances[.]” I-ER-2. ¶4(b): Confidential information may not be shown to “[a]ny other person whose testimony regarding the Confidential Information is noticed to be taken in this action, except that such a person may only be shown Confidential Information during his or her testimony and only after being advised by counsel of this Order, its meaning and purpose, and only after signing Exhibit A, the Agreement.” I-ER-3. ¶¶4(h), 9: If it receives an otherwise valid FOIA request with respect to Confidential Information, the EEOC must “provide[] Bashas’ with notice and opportunity to object to such disclosure and seek a protective order in this federal District Court.” “The EEOC shall not respond to any such FOIA request until Bashas’ has the opportunity to assert its objection(s) and seek a protective order from this federal District Court.” I-ER-3-4, 5-6. ¶8: “The EEOC agrees to hold such Confidential documents in a secure manner in that access to the Confidential Information is limited to EEOC employees actually working on this matter. The electronic Confidential Information shall be maintained in such a manner to reasonably protect it from dissemination, copying, or access by anyone not directly working on this matter.” I-ER-5. ¶13: “Any party at any time may object in writing to the designation of any material as Confidential Information. Within ten (10) days from such written objection the party to whom it is addressed must reply in writing. If the parties fail to reach an agreement, they shall meet and confer in good faith in an attempt to resolve the matter. If they are unable to do so, each party shall file simultaneous briefs, not to exceed two pages, with their respective positions regarding the designation. Pending Court order regarding the classification of the disputed documents, the proscription of this Order shall remain in effect.” I-ER-6-7. ¶14: “No person generally identified in paragraph 4 who received Confidential Information as a result of the investigation of this action shall copy or otherwise use the Confidential document or Information for any purpose whatsoever, except in connection with the investigation of this Charge or any litigation initiated by the EEOC arising from this investigation.” I-ER-7. STANDARD OF REVIEW This Court reviews a district court’s order enforcing an EEOC administrative subpoena de novo. Fed. Express, 558 F.3d at 846. It reviews a district court’s decision to grant, lift, or modify a protective order for abuse of discretion, although it “review[s] de novo [] whether the lower court used the correct legal standard in determining whether it should have granted a protective order.” Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002). “A court abuses its discretion when it fails to identify and apply the correct legal rule to the relief requested, or if its application of the correct legal standard was (1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record.” In the Matter of Roman Catholic Archbishop of Portland in Or., 661 F.3d 417, 424 (9th Cir. 2011) (internal citations and quotation marks omitted). SUMMARY OF ARGUMENT The district court erred in entering a confidentiality order in this case whose terms far exceed the bounds established by Congress in Title VII, FOIA, the Privacy Act, and the Trade Secrets Act. The authority of the courts with respect to EEOC subpoena enforcement actions is narrow and limited to examining the relevance of the information and whether it has been sought for a lawful purpose. There is nothing at all unusual about the information subpoenaed in this case, and the district court concluded after a three-day evidentiary hearing that there were no improprieties in the EEOC’s issuance of the Commissioner’s Charge. The confidentiality order entered by the district court, if allowed to stand, will present significant obstacles to the EEOC’s legitimate law enforcement activities in this and other cases. It also places the EEOC in the potential position of being court-ordered to violate other federal statutes, which is an untenable position for the agency. ARGUMENT The Confidentiality Order Entered by the District Court Is Contrary to Law and Would Significantly Obstruct and Interfere with the EEOC’s Legitimate Law Enforcement Activities. The district court abused its discretion in entering the confidentiality order in this case, especially after it expressly found in what was essentially a mini-trial that the EEOC had done nothing improper. The legal standard for enforcement of an EEOC subpoena in this Court is that originally articulated in Children’s Hospital and most recently reiterated in FedEx: The scope of the judicial inquiry in an EEOC or any other agency subpoena enforcement proceeding is quite narrow. The critical questions are: (1) whether Congress has granted the authority to investigate; (2) whether procedural requirements have been followed; and (3) whether the evidence is relevant and material to the investigation. FedEx, 558 F.3d at 848. “Put another way, courts must enforce administrative subpoenas unless the evidence sought by the subpoena is plainly incompetent or irrelevant to any lawful purpose of the agency.” Karuk Tribe, 260 F.3d at 1076 (internal citations and quotation marks omitted). See also EEOC v. Shell Oil, 466 U.S. 54, 72 n.26 (1984) (“The district court has a responsibility to satisfy itself that the charge is valid and that the material requested is ‘relevant’ to the charge, …and more generally to assess any contentions by the employer that the demand for information is too indefinite or has been made for an illegitimate purpose.”). A. Nothing about this case warrants judicial imposition of confidentiality requirements that exceed the extensive protections adopted by Congress in Title VII and other statutes. 1. The existing statutory and regulatory framework of confidentiality protections Title VII’s confidentiality provisions impose criminal penalties on any EEOC employee who discloses anything in an EEOC investigation to the “public.” 42 U.S.C. §§ 2000e-5(b), 2000e-8(e). This means that at all times during and after the EEOC’s investigation, the EEOC routinely denies any requests for charge file information made by persons other than the parties to the charge—for any reason, and whether under FOIA or not—because Title VII prohibits such disclosure.<2> 29 C.F.R. § 1601.22 (EEOC regulation on confidentiality of investigative files); EEOC FOIA Reference Guide § XI.<3> See also 5 U.S.C. § 552(b)(3) (FOIA exemption 3 exempting material from disclosure when prohibited by another statute). The Privacy Act of 1974 also protects EEOC charge files from public disclosure. 5 U.S.C. § 552a(b). And the Trade Secrets Act forbids government employees from disclosing trade secrets to anyone at any time, including aggrieved persons or charging parties, under threat of criminal penalties. 18 U.S.C. § 1905. For information in a charge file that is not covered by the Trade Secrets Act, the EEOC may make disclosures to aggrieved persons during the investigation to the extent deemed necessary to effectively enforce the law, as the parties to the charge are not considered members of the “public” within the meaning of Title VII’s confidentiality provisions. EEOC v. Associated Dry Goods, 449 U.S. 590, 599 (1981); 29 C.F.R. § 1601.22; EEOC Compliance Manual § 83.3(a).<4> After the conclusion of an investigation, EEOC invokes FOIA exemption 3 to deny requests for charge file information by persons other than the parties to the charge in the same way it does during the investigation. If the parties to the charge were to request charge file information pursuant to FOIA at the close of the investigation, those requests would be granted if the ninety-day notice of right to sue period had not expired, but disclosure would be made only after sanitizing the file to remove documents covered by a FOIA exemption. EEOC FOIA Reference Guide § XI. For example, any information impacting personal privacy would be removed pursuant to FOIA exemptions 6 and 7(C). Id. Documents Bashas’ designates in good faith as being trade secrets or confidential commercial information would be covered by exemptions 3 and 4, and any FOIA request for such documents would trigger the procedures the Commission promulgated pursuant to its rulemaking authority under Title VII and the FOIA. 42 U.S.C. § 2000e-12; 5 U.S.C. § 552; 29 C.F.R. § 1610.19. The EEOC would provide Bashas’ explicit notice of the request; Bashas’ would have the right to a minimum of five working days to object to disclosure; and, if the EEOC were to disagree with Bashas’s objection, the EEOC would provide Bashas’ an explanation of its reasons so that Bashas’ could seek an injunction against disclosure. 29 C.F.R. § 1610.19. See Chrysler Corp. v. Brown, 441 U.S. 281, 317-18 (1979) (recognizing that “reverse FOIA” suits seeking to prevent disclosures are cognizable under the Administrative Procedure Act); see also, e.g., McDonnell Douglas Corp. v. EEOC, 922 F. Supp. 235, 239-40, 243 (E.D. Mo. 1996) (after the EEOC notified the submitter of a FOIA request and the EEOC and the submitter could not agree on terms of disclosure, enjoining the EEOC from disclosing certain commercial or financial materials covered by FOIA Exemption 4). Accordingly, by statute, regulation, and Commission policy, the contents of the Commissioner’s Charge file, including all witness testimony and documents produced by Bashas’ pursuant to the subpoena, would be legally protected from disclosure to anyone during or after the investigation except according to well-defined FOIA procedures. Those procedures provide Bashas’ with ample opportunities to protect from disclosure any documents it believes in good faith are entitled to such protection. We recognize, as did the district court in this case, that several district courts have entered confidentiality orders in EEOC subpoena enforcement actions based on the apparent lack of an enforcement mechanism for Section 83’s nondisclosure provision. I-ER-14 (Order at 4) (citing C&P Telephone, 813 F. Supp. at 877). In this case, however, the district judge presiding over this matter is also presiding over Parra. Thus, the respondent has a ready and willing “enforcement mechanism” in place if anyone in Parra should attempt to make use of evidence to which the district court held s/he was not entitled. Moreover, Bashas’ allegations in this case have been that various EEOC employees, not aggrieved persons, are the ones responsible for improper dissemination of protected information. As already described above, Title VII separately mandates criminal penalties for such misconduct above and beyond the confidentiality obligations in Section 83. See 42 U.S.C. §§ 2000e-5(b), 2000e-8(e). Finally, we note that we are unaware of any circumstance where a witness or charging party has breached his/her nondisclosure obligations under Section 83, much less one where such a breach proved at all problematic. Accordingly, enforcement concerns with respect to third-party breaches under Section 83 should not serve as a basis for the district court’s (or this Court’s) overriding of the existing statutory and regulatory scheme. 2. The confidentiality scheme adopted by Congress in Title VII should be respected. As the Supreme Court observed in University of Pennsylvania v. EEOC, Congress’s choice of the degree and type of confidentiality protections conferred by Title VII is entitled to deference: Congress did address situations in which an employer may have an interest in the confidentiality of its records. The same § 2000e-8 which gives the Commission access to any evidence relevant to its investigation also makes it “unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding” under the Act. A violation of this provision subjects the employee to criminal penalties. Ibid. To be sure, the protection of confidentiality that § 2000e-8(e) provides is less than complete. But this, if anything, weakens petitioner's argument. Congress apparently considered the issue of confidentiality, and it provided a modicum of protection. Petitioner urges us to go further than Congress thought necessary to safeguard that value, that is, to strike the balance differently from the one Congress adopted. Petitioner, however, does not offer any persuasive justification for that suggestion. 493 U.S. 182, 192 (1990). See also FCC v. Schreiber, 381 U.S. 279, 296 (1965) (observing that “administrative agencies are entitled [to a presumption] that they will act properly and according to law”). Thus, although district courts may have the authority in accordance with Title VII or other statutes to order that certain subpoenaed information be held confidential, the circumstances under which that authority may be exercised “should be rare and limited to extraordinarily sensitive information.” Aon Consulting, 149 F. Supp. 2d at 608; see also EEOC v. Morgan Stanley & Co., 132 F. Supp. 2d 146, 156 (S.D.N.Y. 2000) (“[A]t a minimum, the logic of [EEOC v. Associated Dry Goods, 449 U.S 590 (1981)] makes plain that because disclosure to the charging party would ordinarily further the enforcement of the Act, disclosure should be the norm and [confidentiality] orders will be appropriate only in unusual circumstances.”). Consistent with these principles, the cases to date in which courts have entered non-stipulated confidentiality orders in connection with EEOC subpoenas fall into two categories: (1) cases involving employment tests or other trade secrets, where disclosure would destroy the inherent value of the test (see, e.g., Aon Consulting, supra; EEOC v. C&P Tel. Co., 813 F. Supp. 874 (D.D.C. 1993); EEOC v. Kronos, Inc., No. 09mc0079, 2011 WL 1085677 (W.D. Pa. Mar. 21, 2011) (unpublished) (currently on appeal to the Third Circuit); and (2) one case involving personal medical information of employees (Ala. Dep’t of Youth Servs., 2006 WL 1766785). On the other hand, in cases where the material at issue did not involve employment testing or other exceptionally sensitive material, the courts have rejected respondents’ attempts to obtain protective orders, finding that the statutory and regulatory protections were sufficient. See, e.g., Morgan Stanley, 132 F. Supp. 2d 146; EEOC v. City of Milwaukee, 54 F. Supp. 2d 885 (E.D. Wisc. 1999); cf. EEOC v. Kidder Peabody, Peabody & Co., Inc., No. M18-304, 1992 WL 73344, at *6 (S.D.N.Y. Apr. 2, 1992) (unpublished) (in enforcing subpoena issued under ADEA, observing that “[t]he EEOC is investigating Kidder Peabody, not litigating with it. If the EEOC sues Kidder Peabody, the parties may agree upon a confidentiality order pendente lite; if the suit is settled, a confidentiality order may be part of the settlement. All this lies in the future. In its present posture the case involves information to be developed during the agency’s investigation.… Kidder Peabody cannot, by engrafting a protective order upon an order enforcing the EEOC subpoena, obtain indirectly what it is not entitled to obtain directly.”). As the district court itself recognized, the information at issue in this case is materially different from that in the “confidentiality order” cases described above. I-ER-13-14 (Order at 3-4). The wage and employment data sought in this case is absolutely typical of the kind of information sought in virtually every EEOC investigation involving disparate pay claims, and there is nothing about the information here or its “breadth” that is at all unusual.<5> The district court’s speculation that this otherwise garden-variety information is “potentially … quite sensitive” does not put it in the same category with the kind of information that has been held to meet the standard for a confidentiality agreement: information whose value would be destroyed once the “cat is out of the bag” or information involving nonparty employees’ personal medical information. Rather, the district court based its entry of the confidentiality order at issue on what were essentially its continuing, unsubstantiated suspicions after the evidentiary hearing. Based on the court’s own findings of fact after the hearing, its conclusion in this regard was unwarranted. In its sixty-four-page decision enforcing the EEOC’s subpoena, the district court described at length each of the defendant’s allegations as to the EEOC’s conduct in this case, and in each instance found specifically that the allegations were unproven, unsubstantiated, and/or based on pure conjecture and speculation.<6> Indeed, its language in the second order that “the hearing on that OSC heightened rather than allayed the court’s concerns as to the EEOC’s conduct herein,” I-ER-13 (Order at 3), is puzzling and incongruous in light of its own contrary findings after that hearing. Mere continuing suspicion of potential harm, without substantiation, does not come close to the showings that were made in other cases where the courts have entered confidentiality orders. See, e.g., Ala. Dep’t of Youth Servs., 2006 WL 1766785, at *2 (“Undoubtedly, employees have a strong privacy interest in the contents of their medical records and employers have an interest in protecting those records.”); Aon Consulting, 149 F. Supp. 2d at 608-09 (“The Supreme Court’s decision in Detroit Edison recognizes that employment tests and validation studies present an extraordinarily compelling case for confidentiality. Disclosure can simply destroy the value of the tests.… Disclosure of a trade secret to a person who has no obligation to keep it secret destroys the trade secret[.]”); C&P Telephone, 813 F. Supp. at 876 (“If the CWA obtained the tests and disseminated them among its members, the test would, in effect, be destroyed.”). B. The confidentiality order is extremely broad and far-reaching and will impose significant obstacles on the EEOC’s enforcement efforts in this and other cases. The confidentiality order entered by the district court here, like the order rejected by the D.C. Circuit in FTC v. Texaco, Inc., 555 F.2d 862 (D.C. Cir. 1977), essentially would subject the entire course of the EEOC’s investigation to judicial review. In Texaco, the court stated: In essence, the order requires that any release or use of the documents beyond the investigation first be cleared with the court. Thus, the Commission apparently could not use the documents in an adjudicatory proceeding without gaining the court’s permission. Nor could the Commission exercise its discretion to determine what documents are exempt from public disclosure under the FTC Act or the Commission’s rules. Although the FTC’s argument that the order would prohibit even the Commissioners from viewing the documents seems somewhat strained, the order would unquestionably place the court in a position of supervision and control over the Commission in the exercise of its statutory duties. At least until the subpoenaed information has been made available to the agency and it has had an opportunity to rule on specific requests for confidential treatment, such a protective order is premature and improper. See FCC v. Schreiber, 381 U.S. 279, 290-1, 295-6 (1965).<7> 555 F.2d at 883-84. This Court has observed that the “very backbone of an administrative agency’s effectiveness in carrying out the congressionally mandated duties of industry regulation is the rapid exercise of the power to investigate ….” FMC v. Port of Seattle, 521 F.2d 431, 433 (9th Cir. 1975). See also FTC v. Std. Oil Co. of Cal., 449 U.S. 232, 242 (1980) (“Judicial intervention into the agency process denies the agency an opportunity to correct its own mistakes and to apply its expertise. Intervention also leads to piecemeal review which at the least is inefficient and upon completion of the agency process might prove to have been unnecessary.”) (internal citations omitted). If allowed to stand, the confidentiality order entered here would greatly hamper the agency’s enforcement efforts in a number of respects.<8> In recent years, the EEOC has received close to 100,000 charges of discrimination agency-wide per year. According to the 2013 budget justification submitted to Congress, the EEOC is continuing its ongoing struggle to manage its charge inventory: The EEOC’s charge inventory has been growing since fiscal year 2002. Compared with the inventory in fiscal year 2002, when it was at its lowest point in the last 15 years, the inventory in fiscal year 2009 had almost tripled – adding 56,727 charges. Additionally, in the third quarter of fiscal year 2010, the pending inventory reached 92,561, the highest level since fiscal year 1995. U.S. Equal Employment Opportunity Comm’n, FY 2013 Congressional Budget Justification Submitted to the Congress of the United States, at 17.<9> Per the same report, “[a]s an agency, we have seen charge receipts produce record levels in both fiscal year 2010 and fiscal year 2011, with more than 99,900 received each year.”<10> Id. at 18. Berta Echeveste, the Enforcement Manager responsible for overseeing the investigation of charges of employment discrimination at the Phoenix District Office, testified at the evidentiary hearing in this case that she oversaw the investigation of “approximately 2,000” cases at the time of the hearing, in November 2010. III-ER-616. Rayford Irvin, the District Director for the Phoenix District Office, testified that in that office alone there were about 5,000 charges of discrimination filed in fiscal year 2009, and that he had a staff of about “20 on a daily basis” to handle those charges. III-ER-621. He further testified that in 2008, the year the subpoena at issue in this case was issued, there were a total of 5,868 charges filed in the Phoenix District Office. III-ER-622. And Patricia Miner, the investigator in charge of the Bashas’ commissioner’s charge investigation, testified that she was personally responsible for “over 70 cases” at the time of the hearing. III-ER-617-18. Because of the utterly unremarkable nature of the information sought in this case, the practical consequence of allowing this confidentiality order to stand under these circumstances will be that respondents in any and every case will have a strong incentive to seek protective orders through the courts, for no other reason than that they can. Under the district court’s rationale, the mere assertion of suspicion would be sufficient to subject the subpoenaed materials to a broad and highly restrictive confidentiality order. In light of this Court’s repeated admonitions that subpoena enforcements are subject only to “limited” review, FedEx, 558 F.3d at 848, which is “quite narrow,” Karuk Tribe, 260 F.3d at 1076, such a rule would be contrary to precedent and would carry grave consequences both for judicial economy and for the EEOC’s internal processing of charges. See also EEOC v. Shell Oil, 466 U.S. 54, 69- 70, 81 (1984): [I]t is crucial that the Commission’s ability to investigate charges of systemic discrimination not be impaired. By 1972, Congress was aware that employment discrimination was a “complex and pervasive” problem that could be extirpated only with thoroughgoing remedies; “[u]nrelenting broad- scale action against patterns or practices of discrimination” was essential if the purposes of Title VII were to be achieved. The EEOC, because “[i]t has access to the most current statistical computations and analyses regarding employment patterns” was thought to be in the best position “to determine where ‘pattern or practice’ litigation is warranted” and to pursue it. Accordingly, in its amendments to § 707, Congress made clear that Commissioners could file and the Commission could investigate such charges. Our interpretation of the EEOC's regulations should not undercut the exercise of those powers. * * * To construe the notice requirement as respondent suggests would place a potent weapon in the hands of employers who have no interest in complying voluntarily with the Act, who wish instead to delay as long as possible investigations by the EEOC. It would always be open to such an employer to challenge the adequacy of the Commission’s disclosure of the data on which a charge is founded. If the employer then refused to comply with the Commission's subpoena, a district court would be required to assess the employer's contention before the subpoena could be enforced. The difficulties of making such an assessment responsibly and the opportunities for appeals of district court judgments would substantially slow the process by which the EEOC obtains judicial authorization to proceed with its inquiries. A number of the specific provisions entered by the district court in this case are particularly troubling from an enforcement perspective. First and foremost, there is no constraint on the type of material that may be deemed confidential. See I-ER-2 (stating that “confidential information means any document designated in good faith by counsel as confidential in accordance with the terms of this order”). Disputes over what is or is not a confidential document, whether the document was designated in “good faith,” and whether the designation is “in accordance with the terms of this order” would all require extensive involvement by the district court, significantly burdening the court and delaying the EEOC’s investigation. Equally if not more troubling is the provision that confidential information “shall be used solely for the purpose of the above referenced Charge and any resulting litigation and not in connection with any other action including any action arising out of the same underlying circumstances[.]” These restrictions are unwarranted and inconsistent with the EEOC’s fundamental law enforcement activities. See Associated Dry Goods, 449 U.S. at 604-05 (holding that, although EEOC may not disclose to charging parties other individuals’ charges or the contents of their charge files per se, when information is relevant to more than one charge, EEOC may “fully comply with the statute” by placing that relevant information—in full or in summary form—in multiple charge files). See also Univ. of Med. & Dentistry of N.J. v. Corrigan, 347 F.3d 57, 64 (3d Cir. 2003) (“In the ordinary course, judicial proceedings are appropriate only after the investigation has led to enforcement, because [j]udicial supervision of agency decisions to investigate might hopelessly entangle the courts in areas that would prove to be unmanageable and would certainly throw great amounts of sand into the gears of the administrative process.”) (internal citations and quotation marks omitted) (alteration in original). Next, the requirement that witnesses sign confidentiality agreements would have a chilling effect on investigations in various respects. This requirement would make it more difficult to convince witnesses, who are frequently already hesitant, to speak with EEOC investigators, and make them fearful of retaliation by the employer because their identities will be known. The requirement would also completely close off legitimate areas of investigation where witnesses are not willing to sign agreements. As a result, investigations would suffer significantly from a lack of relevant evidence—including evidence that could well turn out to be favorable to the respondent. Finally, the confidentiality order imposes a number of administrative burdens on the EEOC that are completely unnecessary and would be cumbersome to enforce. The agency manages tens of thousands of case files at a time, and there are extensive security provisions already in place for the hard copy and electronic documents in those files. See EEOC Order No. 201.001, Records Management (Dec. 3, 2003).<11> A requirement that separate storage and other restrictions be put in place for “special” documents in this or any other case would quickly become unmanageable and costly. Also, FOIA and section 83 already require the EEOC to inform the submitter of information whenever it intends to grant a request to disclose confidential commercial information. No legitimate purpose is served by requiring the EEOC to inform the submitter whenever it receives such a request but intends to deny it. Moreover, to the extent the confidentiality order requires that non-exempt or excepted material be withheld from a requester, it may well put the EEOC in the position of being ordered by a court to violate FOIA. Because the order is so broad-ranging and intrusive, and a significant deviation from the EEOC’s regular internal procedures, it also raises the potential of inadvertent violation of the order, which would then expose the EEOC to contempt of court allegations. None of this was contemplated in the statutes and regulations conferring investigative authority on the EEOC, and these burdens would greatly interfere with the agency’s ongoing duties to investigate charges of discrimination. Accordingly, contrary to the district court’s impression that “the EEOC’s stance has continued to be one of intransigence,” I-ER-15, it was never the EEOC’s intention to thwart the district court’s order, to be obstructionist, or to adhere to its position for strategic purposes. Rather, the EEOC did not negotiate a more restrictive confidentiality order because such an order would have immediate, grave consequences for the EEOC’s enforcement actions. This is an extremely important issue to the agency, and one it firmly believes Congress has already resolved. CONCLUSION For the foregoing reasons, the EEOC respectfully requests that the district court’s orders mandating the entry of a confidentiality order in this case, and the confidentiality order itself, be vacated and that the EEOC’s subpoena be enforced. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel s/Elizabeth E. Theran ELIZABETH E. THERAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov STATEMENT OF RELATED CASES Pursuant to Ninth Circuit Rule 28.2-6, Petitioner/Appellant EEOC hereby states that it is not aware of any cases related to this appeal pending before this Court. CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 10,459 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief 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 2007 in Palatino Linotype 14 point. s/Elizabeth E. Theran ELIZABETH E. THERAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov Dated: May 29, 2012 CERTIFICATE OF SERVICE I, Elizabeth E. Theran, hereby certify that I electronically filed the foregoing brief with the Court via the appellate CM/ECF system this 29th day of May, 2012. I also certify that the following counsel of record, who have consented to electronic service, will be served the foregoing brief via the appellate CM/ECF system: Counsel for Respondent/Appellee: Bennett Evan Cooper Stephanie J. Quincy Douglas D. Janicik Elizabeth A. Schallop Call Steptoe & Johnson LLP Collier Center 201 East Washington St., Suite 1600 Phoenix, AZ 85004-2382 (602) 257-5200 phcourtnotices@steptoe.com s/Elizabeth E. Theran ELIZABETH E. THERAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4720 elizabeth.theran@eeoc.gov ********************************************************************************** <> <1> “[#]-ER-[#]” refers to material in the Excerpts of Record, cited by volume and page number. “R.[#]” refers to the district court docket entry. <2> In the context of a Commissioner’s Charge, the “aggrieved persons” who are treated as parties to the charge are members of a class of specifically named individuals. See EEOC Compliance Manual § 83.5(b). “A charging party or other aggrieved person covered by an individual charge may not gain access to a Commissioner charge file on the same respondent, unless s/he is also a member of that Commissioner charge class or the file consolidation procedures, such as in (a) above, had occurred.” Id. In this case, none of the parties to the Parra litigation are members of the class of aggrieved persons encompassed by the Commissioner’s Charge, and the files have not been consolidated. <3> Available at http://www.eeoc.gov/eeoc/foia/hb-11.cfm. <4> Available at http://www.eeoc.gov/eeoc/foia/section83.cfm. <5> Indeed, this Court has ordered broader subpoenas enforced without imposing confidentiality or other restrictions, so long as the subpoenaed material was relevant. See, e.g., FedEx, 558 F.3d at 855 (enforcing subpoena where “the EEOC is investigating a charge that alleges systemic discrimination affecting African American and Latino employees in FedEx's eleven-state Western region”; noting that “EEOC plainly has jurisdiction to seek company-wide data”); EEOC v. Sears, Roebuck & Co., 885 F.2d 875, 1989 WL 107831, at *1 (9th Cir. 1989) (unpublished) (regarding Title VII national origin discrimination charge, enforcing subpoena as to nationwide data regarding hiring of Hispanic workers). See also, e.g., EEOC v. Technocrest Sys., 448 F.3d 1035, 1040 (8th Cir. 2006) (in Title VII/national origin context, enforcing subpoena as to personnel files, DOL and INS data, and other information for all employees similarly situated to the charging parties). <6> Among these allegations was Bashas’ argument it was somehow improper, or illustrated bad faith, for the EEOC to continue to investigate the Parra charges after notices of right to sue were issued to the charging parties. The EEOC’s investigation of the Parra charges is not at issue in this case, but, in any case, we note that this Court has already rejected this argument as a matter of law. See FedEx, 558 F.3d at 854 (“[W]e hold that the EEOC retains the authority to issue an administrative subpoena against an employer even after the charging party has been issued a right-to-sue notice and instituted a private action based upon that charge.”). <7> In this case, the contention that the EEOC’s own Commissioners could not view the documents under subpoena is far from “strained.” See paragraph 8: “The EEOC agrees to hold such Confidential documents in a secure manner in that access to the Confidential Information is limited to EEOC employees actually working on this matter. The electronic Confidential Information shall be maintained in such a manner to reasonably protect it from dissemination, copying, or access by anyone not directly working on this matter.” <8> Although the order in question obviously applies only to this case, if this Court upholds it, respondents (in the Ninth Circuit at least) will routinely seek such orders requiring the ongoing supervision of the courts. Such rulings do not go unnoticed by practitioners. <9> Available at http://www.eeoc.gov/eeoc/plan/2013budget.cfm. <10> According to the EEOC’s 2011 Performance Report, “[t]he EEOC has made progress but continues to face major challenges in adequately addressing the large backlog of private-sector discrimination charges. According to preliminary data, the charge inventory at the end of FY 2011 was decreased by 8,785 charges. Total receipts for 2011 were 99,947. Total resolutions were 112,499 and total pending at the end of FY 2011 was 86,921.” U.S. Equal Employment Opportunity Comm’n, Fiscal Year 2011 Performance & Accountability Report, at 30 (available at http://www.eeoc.gov/eeoc/plan/2011par.cfm). <11> Available at http://www.eeoc.gov/eeoc/internal/records_management.cfm.