No. 09-3219 _______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Applicant–Appellant, v. KRONOS INCORPORATED, Respondent–Appellee. _______________________________________________________ On Appeal from the United States District Court for the Western District of Pennsylvania _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _______________________________________________________ JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel CORBETT L. ANDERSON Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, DC 20507 (202) 663-4579 corbett.anderson@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . iv STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . .1 STATEMENT OF RELATED CASES AND PROCEEDINGS . . . . . . . . . .2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . .3 A. Course of Proceedings . . . . . . . . . . . . . . .3 B. Statement of Facts . . . . . . . . . . . . . . . . .3 C. District Court's Decisions . . . . . . . . . . . . 10 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . 13 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 13 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 16 I. THE MATERIALS SOUGHT BY THE COMMISSION'S SUBPOENA ARE RELEVANT TO A REASONABLE INVESTIGATION OF THE SANDY CHARGE . . . . . . . . . . .16 A. The Information Sought by the Subpoena is Relevant Because It "Might Cast Light" on the Allegations in Sandy's Charge . . . . . . . . . . . . . . . . 17 B. The Commission Reasonably Expanded the Investigation Beyond the Literal Terms of the Sandy Charge . . . 24 C. The Commission Reasonably Expanded the Investigation to Include Race in Light of Evidence That a "Root Source" May Have an Unlawful Adverse Impact Based on Both Disability and Race . . . . . . . . . . . . . . . . . . . . . 28 II. THE CONFIDENTIALITY ORDER ADOPTED BY THE DISTRICT COURT IS CONTRARY TO LAW AND PLACES UNTENABLE RESTRICTIONS ON THE COMMISSION'S LEGITIMATE LAW ENFORCEMENT ACITIVITIES . . . . . . . . . . . . . . . . 35 A. Strong Legal Protections of Confidentiality Exist Without the Confidentiality Order . . . . . . . . . . . . . . 35 B. The Confidentiality Order's Definition of Confidential Material is Overbroad and Its Treatment of FOIA Requests is Contrary to FOIA . . . . . . . . . . . . . . . . . . . . . 38 C. The Limitations on the Commission's Use of Subpoenaed Material Impermissibly Undermine and Interfere with the Commission's Law Enforcement Activities . . . . . 41 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 45 CERTIFICATE OF BAR MEMBERSHIP . . . . . . . . . . . . . . . 46 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . 46 CERTIFICATE OF IDENTICALLY FILED BRIEFS . . . . . . . . . . 46 CERTIFICATE OF VIRUS CHECK . . . . . . . . . . . . . . . . . 47 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . 47 JOINT APPENDIX, VOL. I TABLE OF AUTHORITIES Cases EEOC v. Associated Dry Goods, 449 U.S. 590 (1981). . 41, 42, 43 EEOC v. Bailey Co., 563 F.2d 439 (6th Cir. 1977) . . . . . . 31 EEOC v. Cambridge Tile Mfg. Co., 590 F2d 205 (6th Cir. 1979).20 EEOC v. Citicorp Diners Club, Inc., 985 F.2d 1036 (10th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . 31 EEOC v. E.I. DuPont de Nemours & Co., 373 F. Supp. 1321 (D. Del. 1974). . . . . . . . . . . . . 27 EEOC v. Franklin & Marshall Coll., 775 F.2d 110 (3d Cir. 1985). . . . . . . . . . . . . . . . . . . . . 19, 44 EEOC v. Gen. Elec. Co., 532 F.2d 359 (4th Cir. 1976). . . . . . . . . . . . . . . . .26, 29, 32, 33 EEOC v. Hearst Corp., 553 F.2d 579 (9th Cir. 1977) . . . . . 26 EEOC v. Maryland Cup Corp., 785 F.2d 471 (4th Cir. 1986) 20, 35 EEOC v. Packard Elec. Div., 569 F.2d 315 (5th Cir. 1978) . . 21 EEOC v. Recruit USA, Inc., 939 F.2d 746 (9th Cir. 1991). .20-21 EEOC v. Roadway Express Inc., 261 F.3d 634 (6th Cir. 2001) . 20 EEOC v. Shell Oil Co., 466 U.S. 54 (1984). . . . 14, 17, 24, 33 EEOC v. Southern Farm Bureau Cas. Ins. Co., 271 F.3d 209 (5th Cir. 2001). . . . . . . . . . . . . . . . . . . . .30, 31 EEOC v. United Air Lines, Inc., 287 F.3d 643 (7th Cir. 2002). . . . . . . . . . . . . . . . . . . . .21, 24 EEOC v. Univ. of Pittsburgh, 643 F.2d 983 (3d Cir. 1981) 16, 19 EEOC v. Westinghouse Elec. Corp., 869 F.2d 696 (3d Cir. 1989)20 FCC v. Schreiber, 381 U.S. 279 (1965). . . . . . . . . . . . 40 Gen. Tel. v. EEOC, 446 U.S. 318 (1980) . . . . . . . . . 25, 26 Joslin Dry Goods v. EEOC, 483 F.2d 178 (10th Cir. 1973). . . 21 NLRB v. Frazier, 966 F.2d 812 (3d Cir. 1992) . . . . . . . . 13 U.S. v. Rockwell, 897 F.2d 1255 (3d Cir. 1990). . . . . . . 16 Univ. of Med. and Dentistry of N.J. v. Corrigan, 347 F.3d 57 (3d Cir. 2003). . . . . . . . . . . . . . . . . . . . . 16, 41 Univ. of Pa. v. EEOC, 493 U.S. 182 (1990). . . . . . . . 36, 44 Statutes 18 U.S.C. § 1905 . . . . . . . . . . . . . . . . . . . . 37, 42 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1337 . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . . . .1 29 U.S.C. § 161(1) . . . . . . . . . . . . . . . . . . . . . 17 29 U.S.C. § 161(2) . . . . . . . . . . . . . . . . . . . . . .1 29 U.S.C. § 621. . . . . . . . . . . . . . . . . . . . . . . 33 42 U.S.C. § 12112(6) . . . . . . . . . . . . . . . . . . . . 18 42 U.S.C. § 12112(7) . . . . . . . . . . . . . . . . . . . . 18 42 U.S.C. § 12117(a) . . . . . . . . . . . . . . . . .1, 17, 33 42 U.S.C. § 2000e-5(b) . . . . . . . . . . . . . . . 31, 36, 42 42 U.S.C. § 2000e-6(e) . . . . . . . . . . . . . . . . . . . 31 42 U.S.C. § 2000e-8(a) . . . . . . . . . . . . . . . . . .1, 17 42 U.S.C. § 2000e-8(e) . . . . . . . . . . . . . . . 35, 36, 42 42 U.S.C. § 2000e-9. . . . . . . . . . . . . . . . . . . .1, 17 44 U.S.C. § 3314 . . . . . . . . . . . . . . . . . . . . . . 43 5 U.S.C. § 552a(b) . . . . . . . . . . . . . . . . . . . 37, 40 5 U.S.C. § 552a(b)(1). . . . . . . . . . . . . . . . . . . . 42 5 U.S.C. § 552(b)(4) . . . . . . . . . . . . . . . . . . . . 37 Regulations 29 C.F.R. § 1601.16(b)(2). . . . . . . . . . . . . . . . . . 32 29 C.F.R. § 1601.22. . . . . . . . . . . . . . . . . . . 36, 41 29 C.F.R. § 1607.7A-B. . . . . . . . . . . . . . . . . . . . 23 29 C.F.R. § 1610.19(a) . . . . . . . . . . . . . . . . . . . 37 29 C.F.R. § 1610.19(e) . . . . . . . . . . . . . . . . . . . 40 29 C.F.R. § 1626.22(a) . . . . . . . . . . . . . . . . . . . 34 29 C.F.R. § 1626.22(b) . . . . . . . . . . . . . . . . . . . 34 29 C.F.R. § 1626.22(c) . . . . . . . . . . . . . . . . . . . 34 Rules Fed. R. App. P. 32(a)(5) . . . . . . . . . . . . . . . . . . 46 Fed. R. App. P. 32(a)(6) . . . . . . . . . . . . . . . . . . 46 Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . 46 Fed. R. App. P. 32(a)(7)(B)(iii) . . . . . . . . . . . . . . 46 L.A.R. 28.1(a)(1). . . . . . . . . . . . . . . . . . . . . . .2 L.A.R. 28.1(a)(2). . . . . . . . . . . . . . . . . . . . . . .2 L.A.R. 31.1(c) . . . . . . . . . . . . . . . . . . . . . 46, 47 L.A.R. 28.3. . . . . . . . . . . . . . . . . . . . . . . . . 46 Other Authorities 1 EEOC Compl. Man. § 22.3. . . . . . . . . . . . . . . . . . 27 1 EEOC Compl. Man. § 25.7 . . . . . . . . . . . . . . . . . 28 1 EEOC Compl. Man. § 26.3. . . . . . . . . . . . . . . . . . 28 1 EEOC Compl. Man. § 83.4(e) . . . . . . . . . . . . . . . . 37 Attorney General FOIA Guidelines . . . . . . . . . . . . . . 39 EEOC Directive No. 6 Adopted at Commission Meeting of April 4, 2006 to Consider Recommendations of Systemic Task Force Report . . . . . . . . . . . . . . . . . . . . . . . . 27 EEOC FOIA Handbook § XI. . . . . . . . . . . . . . . . . . . 36 STATEMENT OF JURISDICTION The U.S. Equal Employment Opportunity Commission ("EEOC" or "Commission") filed an Application for an Order to Show Cause Why a Subpoena Should Not be Enforced ("Subpoena Enforcement Application") under the authority granted in Sections 709 and 710 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-8(a) and 2000e-9, and Section 107 of Title I of the Americans with Disabilities Act, 42 U.S.C. § 12117(a). II-JA-Tab 6 at 17 (Subpoena Enforcement Application ¶1).<1> The district court had jurisdiction pursuant to 29 U.S.C. § 161(2) and 28 U.S.C. §§ 1331, 1337, and 1345. This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Did the district court abuse its discretion in failing to enforce the Commission's subpoena seeking a range of information regarding the implementation, impact, and validity of the assessment test(s) purchased by an employer where the Commission's inquiries into the Sandy disability charge revealed that the test, which was used to deny her employment, was also used by the employer nationwide for all retail job categories, and other evidence suggests the test has an adverse impact on another protected basis? This issue was raised and argued below in the EEOC's Subpoena Enforcement Application (I-JA-Tab 6 at 17-19) and Memorandum in Support (Doc. No. 2), as well as the EEOC's Reply Memorandum (Doc. No. 12). The district court ruled on this issue in its Order of Court re: Application to Enforce Administrative Subpoena Directed to Non-Party Kronos (I-JA-Tab 2 at 3-6). See 3d Cir. L.A.R. 28.1(a)(1). 2. Did the district court abuse its discretion by issuing a broad confidentiality order that could require the EEOC to violate federal information disclosure rules and placed untenable restrictions on the EEOC's legitimate law enforcement activities? This issue was raised and argued below in the EEOC's Motion to Adopt EEOC's Proposed Confidentiality Order and Memorandum in Support (Doc. 19), and EEOC's Response to Kronos Motion for Entry of Confidentiality Order (Doc. No. 26). The district court ruled on this issue in its Order of Court re: Doc. Nos. 19 and 20 (I-JA-Tab 3 at 7) and its Confidentiality Order (I-JA-Tab 4 at 8-10). See 3d Cir. L.A.R. 28.1(a)(1). STATEMENT OF RELATED CASES AND PROCEEDINGS This case has not previously been before this Court. The EEOC is unaware of any other case or proceeding that is in any way related, completed, pending or about to be presented before this Court or any other court or agency, state or federal. See 3d Cir. L.A.R. 28.1(a)(2). STATEMENT OF THE CASE A. Course of Proceedings On March 18, 2009, the EEOC filed its Subpoena Enforcement Application in the U.S. District Court for the Western District of Pennsylvania, seeking enforcement of a third-party administrative subpoena the EEOC issued to Kronos Incorporated ("Kronos"), which possesses information related to the EEOC's investigation of a charge of discrimination filed against Kroger Food Stores ("Kroger"). II-JA-Tab 6 at 17. On June 1, 2009, the district court granted in part and denied in part the EEOC's Subpoena Enforcement Application and ordered the parties to negotiate an appropriate confidentiality order. I-JA-Tab 2 at 3-6. On July 22, 2009, the district court denied the EEOC's motion for adoption of the EEOC's confidentiality order, granted Kronos's motion for adoption of its order, and entered Kronos's proposed order as its own, with slight modifications. I-JA- Tab 3 at 7 (order on parties' motions); I-JA-Tab 4 at 8-10 (court's confidentiality order). The EEOC appeals from these orders. B. Statement of Facts Kroger is a respondent to a charge of discrimination currently being investigated by the Commission. Vicky Sandy ("Charging Party" or "Sandy"), who is deaf and speech impaired, filed the charge on or about July 3, 2007, alleging that in May 2007 she applied to work as a cashier, bagger, and/or stocker at a Kroger store in Clarksburg, West Virginia, but that Kroger did not hire her because of her disability, in violation of the Americans with Disabilities Act of 1990 ("ADA"). II-JA-Tab 6 at 23. The exact wording of her charge is as follows: 1. In May, 2007, I applied for and was not hired for any open position (Bagger, Cashier, and Stocker) at Kroger. 2. In May, 2007, a management official (name unknown) told me that I would not be a good fit for any openings because of the way that I speak. After denying me employment, they continued to advertise for openings. 3. I believe that the respondent discriminated against me because of my medical conditions, and/or my perceived disabilities, in violation of the Americans with Disabilities Act of 1990, as amended, in that, the respondent refused to hire me because of my disabilities and then continued to advertise for openings. II-JA-Tab 6 at 23. According to Kroger's position statement, dated August 16, 2007, Sandy interviewed with the Kroger store manager, Bob Bowers. II-JA-Tab 6 at 38. Kroger stated as follows: Bowers also discussed with Charging Party her low score on the Customer Service Assessment<2> that she had completed as part of the application process. Bowers noted from the Customer Service Assessment that Charging Party potentially might be less inclined to deliver great customer service . . . . During the interview, Bowers had difficulty understanding Charging Party's verbal responses to questions. Bowers found Charging Party's responses to be garbled and at times inaudible and unintelligible. . . . Bowers ended the interview by informing Charging Party that he was concerned about her qualifications, including low Customer Service Assessment and her difficulty in communicating . . . . II-JA-Tab 6 at 38-39. The Customer Service Assessment purportedly "measure[s] the human traits that underlie strong service orientation and interpersonal skills." II-JA-Tab 6 at 25. Kroger provided a copy of Sandy's application summary with its position statement, and the portion summarizing the results of the Customer Service Assessment stated, inter alia, that Sandy was "less likely to … [l]isten carefully, understand and remember[.]" II-JA-Tab 6 at 33. In addition, the application summary listed several follow-up questions that the interviewer should ask the applicant based on the applicant's performance on the assessment test, such as, "Describe the hardest time you've had understanding what someone was talking about," as well as observations the interviewer should make, such as, "How does the applicant speak during the interview[?] Listen for: Correct language, clear enunciation, appropriate volume/tone/expression/smile/eye contact." II-JA-Tab 6 at 33. Kroger's admitted reliance (at least in part) on the Customer Service Assessment test, and the impact the test may have had on Sandy due to her hearing and speech impairments, led the EEOC, on January 16, 2008, to send a request for information (RFI) to Kroger seeking several categories of documents regarding the test and its use, including a request for copies of any validity studies. II-JA-Tab 6 at 42-43. The EEOC's RFI sought information pertaining to the position of "Cashier Bagger" going back only to "January 1, 2007," and was implicitly limited to Kroger's Clarksburg, West Virginia, store. See II-JA-Tab 6 at 42-43. The RFI asked that all the information be provided on or before February 12, 2008, as on that date the investigator would be conducting an on-site investigation of the store to which Sandy applied. Id. at 43. The investigator conducted the onsite visit as planned, and learned that the computer kiosks on which Kroger applicants take the Customer Service Assessment test are maintained by Kronos,<3> and that Kroger uses the Kronos assessment test nationwide and for all retail-level positions (not just for cashiers, baggers and stockers).<4> Kroger responded to the EEOC's RFI on February 14, 2008, but did not provide all the information requested. II-JA-Tab 6 at 45-46. Notably, Kroger refused to provide validity studies for the assessment tests. Id. at 45 ¶5. At this point, given Kronos's key role in the application process, it was unclear to the EEOC whether Kroger even possessed much of the information regarding the Kronos Customer Service Assessment test. II-JA-Tab 6 at 103 n.5. Thus, on March 11, 2008, the EEOC issued a third-party administrative subpoena to Kronos under the ADA, seeking validation studies, job analyses and related documents regarding Kronos assessment tests purchased by Kroger for "any or all jobs at Kroger"; the user's manual for the Kronos assessment tests purchased by Kroger; and all documents discussing, analyzing or measuring adverse impact on people with disabilities. II-JA-Tab 6 at 48-49. Two days later, on or about March 13, 2008, the EEOC notified Kroger of its decision to expand the scope of its ADA investigation to include all stores nationwide, going back to August 1, 2006. The EEOC's letter stated, in relevant part, that "the charge [investigation] has been expanded to include the issue of disability with respect to the use of assessment tests in hiring (class) during the period August 1, 2006 to the present and for all facilities in the United States and its territories." II-JA-Tab 6 at 54, 104. Around this same time, the EEOC discovered an article, co-written by a Kronos employee, containing several statements that minorities performed significantly worse than Whites on the Kronos assessment test when used by a large, unnamed retailer: "Consistent with a large body of work, we find that minority applicants performed significantly worse than majority applicants on the employment test"; "there [were] marked differences in the distribution of standardized . . . test scores among White, Black and Hispanic applicants"; and the "race gaps in test scores . . . [were] highly significant." II-JA-Tab 6 at 135, 140. The EEOC's charge database also revealed that there were three hiring charges against Kroger pending in various EEOC and Fair Employment Practices offices at the time alleging failure to hire based on disability and/or race, black. II-JA-Tab 6 at 104, 108. In light of this information, the EEOC rescinded its subpoena to Kronos in March 2008, and on May 30, 2008, sent Kroger a letter informing it that the EEOC's investigation was being expanded a second time to include an investigation of whether Kroger discriminates against African Americans in hiring, and removing the August 1, 2006, date and instead dating the investigation to when Kroger implemented the employment test. II-JA-Tab 6 at 56, 104. The second expansion letter stated in relevant part that "the above referenced charge [investigation] has been expanded to include the basis of disability and race (black) with respect to the issues of the use of assessment tests including but not limited to the Kronos Dependability – Customer Service Combo Assessment in hiring (class) for the period beginning from the date that such test(s) were implemented by the Respondent through the present and for all facilities in the United States and its territories." Id. at 56. Accordingly, on October 7, 2008, the EEOC issued a new subpoena to Kronos reflecting the investigation's expanded scope. II-JA-Tab 6 at 51. The subpoena requested that Kronos: 1. Produce any and all documents and data constituting or related to validation studies or validation evidence pertaining to Unicru [Kronos' predecessor] and/or Kronos assessment tests purchased by The Kroger Company, including but not limited to such studies or evidence as they relate to the use of the tests as personnel selection or screening instruments. 2. Produce the user's manual and instructions for the use of the Assessment Tests used by The Kroger Company. 3. Produce any and all documents and data, including but not limited to correspondence, notes, and data files, relating to the Kroger Company; its use of the Assessment Tests; results, ratings, or scores of individual test-takers; and any validation efforts made thereto. 4. Produce any and all documents discussing, analyzing or measuring potential adverse impact on individuals with disabilities and/or an individual's race. 5. Produce any and all documents related to any and all job analyses created or drafted by any person or entity relating to any and all positions at The Kroger Company. 6. Furnish a catalogue which includes each and every assessment offered by Unicru/Kronos. Additionally provide descriptions of each assessment. II-JA-Tab 6 at 51-52. Kronos filed a Petition to Revoke the Subpoena, objecting on grounds of relevance and confidentiality of commercial information. II-JA-Tab 6 at 58-96. In a detailed determination decision addressing Kronos's arguments, the Commission denied the petition to revoke on January 7, 2009, and ordered Kronos to comply with the subpoena. II-JA-Tab 6 at 98-112. When Kronos failed to do so, the EEOC filed its Subpoena Enforcement Application. II-JA-Tab 6 at 17. The district court permitted a full briefing of the issues. See Doc. Nos. 2, 11, 12, 15. C. District Court's Decisions The district court granted in part and denied in part the EEOC's Subpoena Enforcement Application. I-JA-Tab 2 at 6. In the view of the district court, the scope of EEOC's subpoena was "breathtaking—potentially including most of Kronos' business documents, covering its entire client base, with no time, geographic, or job description limitations." I-JA-Tab 2 at 3. The district court further stated, "To the extent that the EEOC Subpoena seeks materials from a third-party that are unrelated to the Sandy discriminatory treatment investigation, this Court deems the request to be far beyond, and not relevant to, the legitimate purpose of that investigation and that charge." I-JA-Tab 2 at 3. Thus, the court decided to narrow the subpoena and "re-draft" it to read as follows: 1. Produce any user's manual and instructions for the use of the Assessment Tests provided to The Kroger Company. 2. Produce any and all documents and data, including but not limited to correspondence, notes, and data files, relating to The Kroger Company; The Kroger Company's use of the Assessment Tests; results, ratings, or scores of individual test- takers at The Kroger Company; and any validation efforts performed specific[ally] for and only for The Kroger Company. 3. Produce any and all documents discussing, analyzing or measuring potential adverse impact on individuals with disabilities, relating specifically to and only to The Kroger Company. 4. Produce any and all documents related to any and all job analyses created or drafted by Kronos relating to the bagger, stocker, and/or cashier/checker positions at The Kroger Company. 5. Furnish any catalogue provided to The Kroger Company. 6. Items 1 through 5 are limited to the time period of January 1, 2006 through May 31, 2007, in the state of West Virginia, for the positions of bagger, stocker, and/or cashier/checker. I-JA-Tab 2 at 5-6. The court instructed the EEOC and Kronos to negotiate the logistics of production, including a confidentiality order "to protect any trade secret/confidential information of Kronos and the personal information of persons taking the Assessment tests." I-JA-Tab 2 at 6. The court ordered Kronos to produce items covered by the re-drafted subpoena by August 31, 2009, unless the parties agreed or the court ordered otherwise. Id. After several weeks of negotiations, the parties agreed to the provisions contained in the EEOC's proposed confidentiality order, excerpted below: Definition of Confidential Material – "The term ‘Confidential Material' means any documents or information in any form produced by Kronos pursuant to [the Subpoena] or any information or documents that refer to or reflect information obtained from the documents or refer to or reflect information provided by Kronos pursuant to the Subpoena, including copies, notes made by EEOC during the Commission's investigation into the allegations made by Vicky Sandy and any subsequent charge she may file." Limitations on Use of Confidential Material – "Confidential Material may be disclosed to individuals outside the Commission (including but not limited to expert witnesses) when mutually agreed upon in writing by Kronos and the Commission. The Commission will not disclose the documents provided by Kronos or the information contained therein to the Charging Party or her agents." Reservation of Rights – "In the event that the Commission should file a complaint against Kroger Food Stores, or any other Kronos client, Kronos has not waived any objections it might assert to the discovery and/or the disclosure of Confidential Material in litigation or any right it may have to seek a protective order governing Confidential Material that has been previously disclosed to the Commission. Similarly, the Commission has not waived the right to seek production of such material." Treatment of Requests Under FOIA – "If any party or third party seeks . . . Confidential Material . . . under the Freedom of Information Act, the Commission will . . . assert that all Confidential Material is exempt from disclosure due to pending official investigation so long as that applies pursuant to 29 C.F.R. § 1610.10. If a FOIA request or any other request for the contents of the file is received after EEOC has closed [the Sandy charge] the Commission agrees to notify Kronos . . . . If Kronos objects [to the disclosure], EEOC agrees not to disclose the Confidential Material to the requesting party or parties." II-JA-Tab 9 at 279-80. In addition to the above provisions, Kronos insisted on a number of additional provisions in the "Limitations on Use" section to which the EEOC would not agree, specifically: (1) a limitation that any confidential material may be used solely for the Sandy v. Kroger charge or any subsequent charge filed by Sandy; (2) a limitation that, during the investigation, the confidential material may be disclosed only to Commission employees with a "need to know;" and (3) a requirement that the EEOC return confidential material within ten business days after concluding the investigation, and destroy any EEOC-generated notes or memoranda that reflect or refer to the confidential material within ten business days after a notice of right to sue. II-JA-Tab 9 at 285-86. On July 22, 2009, the district court granted Kronos's motion for entry of its proposed confidentiality order including the additional provisions. The court also inserted an additional restriction in the "Limitations on Use" subsection: "Said confidential material shall not be entered into a centralized database." I-JA-Tab 4 at 9. STANDARD OF REVIEW This Court reviews a district court's subpoena enforcement decision for abuse of discretion. See NLRB v. Frazier, 966 F.2d 812, 815 (3d Cir. 1992). "An abuse of discretion arises when the district court's decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact." Id SUMMARY OF ARGUMENT It was entirely reasonable and appropriate for the scope of the Commission's subpoena to correspond to the scope of Kroger's potentially unlawful employment practice, in terms of geography, job categories, and time. This scope satisfied the broad standard of relevance set forth in EEOC v. Shell Oil Co., 466 U.S. 54, 68-69 (1984) (stating relevance standard is "not especially constraining" and "virtually any material that might cast light on the allegations against the employer" is relevant, though it should not be construed so broadly as to be a "nullity"). Without providing any reasoning, the district court narrowed the Commission's subpoena to require Kronos to provide only information limited "to the time period of January 1, 2006 through May 31, 2007, in the state of West Virginia, for the positions of bagger, stocker, and/or cashier/checker." I-JA-Tab 2 at 6. These limits were an abuse of discretion because the redrafted subpoena denies the Commission access to information relevant to whether Kroger's use of the Kronos assessment test discriminated against Sandy not only individually, but also as part of a class of persons with disabilities. For similar reasons, the district court abused its discretion by requiring that disparate impact and validity evidence be produced only if it relates "specifically and only to Kroger," and by requiring production of the user's manual for the Kronos assessment test only if it was actually provided to Kroger. Moreover, even if the information sought in the Commission's subpoena exceeded the literal scope of the Sandy charge, the Commission was still entitled to its production as part of a properly expanded investigation of the charge. The Commission also reasonably expanded its investigation to determine whether Kroger's use of the Kronos assessment test has a disparate impact on African Americans. An article the Commission found in the public domain clearly suggests that the Kronos assessment test has an adverse impact on African Americans. The Commission has both the authority and the responsibility to investigate the full scope of any discriminatory impact the Kronos assessment test is having on employment actions taken by Kroger. Removing the Commission's request for race-related adverse impact information was an abuse of discretion because this information was relevant to the Commission's reasonably expanded investigation into a "root source" of discrimination on the basis of race and disability. The district court also abused its discretion by adopting the confidentiality order proposed by Kronos. Title VII, the ADA, and the Privacy Act, already provide strong protections of confidentiality, and the Trade Secrets Act provides even greater protection for Kronos's trade secrets and confidential commercial information. Moreover, the district court's confidentiality order is inconsistent with the Freedom of Information Act ("FOIA") because it defines confidential material in a manner that will likely lead the Commission to withhold information that the FOIA would require or permit the Commission to disclose, and because the order provides a blanket predetermined exemption from disclosure not contemplated by the FOIA notice/objection procedures. Finally, the confidentiality order imposes restrictions on the Commission's internal use of subpoenaed information that are unnecessary and fundamentally at odds with the Commission's law enforcement responsibilities. ARGUMENT I. THE MATERIALS SOUGHT BY THE COMMISSION'S SUBPOENA ARE RELEVANT TO A REASONABLE INVESTIGATION OF THE SANDY CHARGE Under well-settled legal principles governing the enforcement of the Commission's administrative subpoenas, the district court should have enforced items 1-5 of the Commission's subpoena in this case.<5> The district court was required to determine: (1) whether the investigation has a legitimate purpose and the information requested in the subpoena is relevant to that purpose; (2) whether the agency already has the information; (3) whether the agency has followed the required administrative steps; and (4) whether the demand is unreasonably broad or unduly burdensome. See Univ. of Med. and Dentistry of N.J. v. Corrigan, 347 F.3d 57, 64 (3d Cir. 2003); EEOC v. Univ. of Pittsburgh, 643 F.2d 983, 985 (3d Cir. 1981). See also U.S. v. Rockwell, 897 F.2d 1255, 1262 & n.4, 1263 (3d Cir. 1990) (noting that the evidence related to these elements tends to overlap). In holding the documents sought by EEOC's subpoena "to be far beyond, and not relevant to, the legitimate purpose of" EEOC's investigation of the charge filed by Sandy, I-JA-Tab 2 at 3, and by drastically narrowing the scope of the EEOC's subpoena, the district court failed to apply these standards properly and abused its discretion. A. The Information Sought by the Subpoena is Relevant Because It "Might Cast Light" on the Allegations in Sandy's Charge The Commission has broad statutory authority to obtain information that "relates to" an unlawful employment practice under the ADA and "is relevant to the charge under investigation." 42 U.S.C. § 2000e-8-- (EEOC's powers under Title VII shall be its powers under ADA). Relevance is "not especially constraining," and "virtually any material that might cast light on the allegations against the employer" is relevant. EEOC v. Shell Oil Co., 466 U.S. 54, 68-69 (1984). See also 42 U.S.C. § 2000e-9-244 (holding, in investigation of a charge alleging discriminatory denial of tenure, peer review materials for others considered for tenure during a similar time frame were "relevant and not overbroad" because they would yield comparative evidence and help determine whether a "pattern of discrimination appears"); Univ. of Pittsburgh, 643 F.2d at 985-86 (stating "investigatory powers of the EEOC should be interpreted broadly," and holding in investigation of charge alleging pay discrimination in School of Nursing the EEOC could subpoena faculty employment records of four related schools because they "may provide a useful context for evaluating the practices under investigation"); cf. EEOC v. Westinghouse Elec. Corp., 869 F.2d 696, 704 (3d Cir. 1989) (stating under Federal Rules of Civil Procedure that EEOC could amend complaint to nationwide scope "[b]ecause the employment practices complained of . . . were in effect at all of Westinghouse's facilities nationwide," and the company thus knew the EEOC's lawsuit would encompass "any employee adversely affected by its severance pay policies"), vacated on other grounds, 439 U.S. 801 (1989). Other circuit courts have similarly held that the EEOC's subpoena authority is broad and not narrowly limited to the time period or particular allegations in the charge. See, e.g., EEOC v. Roadway Express Inc., 261 F.3d 634, 642 (6th Cir. 2001) (noting it is not uncommon for EEOC to obtain several years of pre-charge information to provide context, and holding same for post-charge information); EEOC v. Maryland Cup Corp., 785 F.2d 471, 476 (4th Cir. 1986) (documents covering three years prior to charge relevant to determine whether there is a pattern of discrimination); EEOC v. Cambridge Tile Mfg. Co., 590 F2d 205, 205- 06 (6th Cir. 1979) (enforcing EEOC subpoena seeking statistical information related to sex discrimination in job classifications after uncovering evidence of such discrimination during investigation of two charges alleging sex/discharge and race/discharge, stating "we decline to hold that the EEOC is powerless to investigate a broader picture of discrimination which unfolds in the course of a reasonable investigation of a specific charge"); cf. EEOC v. Recruit USA, Inc., 939 F.2d 746, 755 (9th Cir. 1991) (holding that preliminary injunction against destruction of records that contained no time limit was not overbroad because the natural time limitation was when "the discriminatory acts complained of could have occurred," and also holding district court did not err by not confining injunction against records destruction to specific clients, job positions, and offices, stating, "the EEOC must be permitted to investigate the full picture" of the respondents' recruiting and hiring practices—the court would not "straitjacket the EEOC into an artificially narrow survey" of the respondents' records). The fact that the subpoena's scope corresponds – in terms of time, geography, and jobs – to Kroger's actual use of the Kronos Customer Service Assessment test distinguishes it from subpoenas that circuit courts have found to be unreasonably broad. See, e.g., EEOC v. United Air Lines, Inc., 287 F.3d 643, 655 (7th Cir. 2002) (where policy at issue was employer's failure to pay into French social security system, holding that EEOC could not subpoena information regarding employer's policy with respect to other benefits); EEOC v. Packard Elec. Div., 569 F.2d 315, 318 (5th Cir. 1978) (holding EEOC could subpoena information regarding the "work unit from which came the decision of which the individual complainant complains," but not facility-wide workforce breakouts because it was not evident that broader data set was relevant to individual complaint); Joslin Dry Goods v. EEOC, 483 F.2d 178, 183 (10th Cir. 1973) (affirming district court decision to limit the EEOC's subpoena to one store because "[i]t was not shown that there were any hiring or firing practices and procedures applicable to all of the stores"). The district court provided no legal reasoning for narrowing the Commission's subpoena to require Kronos to provide only information limited "to the time period of January 1, 2006 through May 31, 2007, in the state of West Virginia, for the positions of bagger, stocker, and/or cashier/checker." I-JA-Tab 2 at 6. The district court erred not only in narrowing the subpoena's scope as described above, but also in denying the EEOC access to particular materials unless they relate only to Kroger. In doing so, the court denied the Commission the broad access to relevant materials to which it is entitled under the law. The district court limited production of "documents discussing, analyzing, or measuring potential adverse impact on individuals with disabilities" to those "relating specifically to and only to The Kroger Company." I-JA-Tab 2 at 6. Similarly, the district court limited production of validation study information related to the assessment tests to only such validation efforts "performed specific[ally] for and only for Kroger." I-JA-Tab 2 at 5-6. However, at this point there is no reason to believe Kronos compiled such evidence "specifically and only" as to Kroger. Moreover, even general adverse impact analyses and validity studies that pertain to other employers certainly may cast light on the impact and validity of the test as applied at Kroger. Cf. 29 C.F.R. § 1607.7A-B (validity studies of "other [employers] or conducted by test publishers or distributors and described in test manuals" can be used when the jobs involve substantially the same work behaviors).<6> Indeed, "[w]ithout the materials subpoenaed by EEOC in this matter, . . . no adequate professional review of the test is possible." II-JA-Tab 7 at 196 ¶8 (Declaration of EEOC's Chief Psychologist). The district court also limited Kronos's production of the user's manual and instructions for the assessment test only if it was actually provided to Kroger. I-JA-Tab 2 at 5. However, regardless of whether Kroger was actually provided with the manual and instructions, these materials will assist the EEOC in understanding the test and help the EEOC to determine whether Kroger has used the assessment test correctly, and may even reveal flaws in the test itself. It is clear that the district court interpreted the Commission's subpoena authority narrowly, instead of broadly as required, and thus abused its discretion. B. The Commission Reasonably Expanded the Investigation Beyond the Literal Terms of the Sandy Charge Even if this Court believes the geographic, temporal, and job parameters of the information sought in the subpoena exceeded the scope of the Sandy charge, the Commission was nonetheless entitled to its production as part of a properly expanded investigation of the charge. The EEOC's investigation in this case is not a "fishing expedition," or so broad as to render the relevance standard a "nullity." See Shell Oil, 466 U.S. at 68-69 (stating that while relevance standard is "not especially constraining" and "virtually any material that might cast light on the allegations against the employer" is relevant, it should not be construed as so broad as to be a "nullity"); United Air Lines, 287 F.3d at 653 (stating relevance is not so broad as to permit "fishing expeditions"). The EEOC has not launched an investigation on an unfounded "hope" that doing so will yield something useful. Rather, the EEOC has simply followed the logical progression of the evidence and its implications, and expanded its investigation accordingly. The EEOC's expansion of the investigation was reasonable in light of the circumstances. It is a well-recognized principle that the EEOC acts on behalf of the public, and not merely on behalf of the narrow interests of a charging party. This principle has been most heartily endorsed by the Supreme Court and other courts in the context of Commission enforcement actions raising claims broader than the allegations in a charge. Although a case is in a different procedural posture when a court determines whether an EEOC lawsuit is permissibly broader than the original charge than when a court determines whether an EEOC subpoena is enforceable in the first place, the substantive inquiry in both situations is essentially the same. Permitting the Commission to ferret out discrimination fully when information comes to light that suggests a broader swath of discriminatory conduct not only makes sense but is consistent with the Commission's statutory purpose of eradicating discrimination from the nation's workplaces. In General Telephone v. EEOC, 446 U.S. 318 (1980), the Supreme Court held that the EEOC could bring a class pattern or practice suit alleging discrimination against women in a four-state region with respect to access to maternity leave, craft positions, and promotion to managerial positions based upon only a handful of individual charges filed by women. See Gen. Tel., 446 U.S. at 326-31. The EEOC's independent, public- interest role was key to the Court's ruling: When 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. . . . If Rule 23 were applicable to EEOC enforcement actions, it would seem that the Title VII counterpart to the Rule 23 named plaintiff would be the charging party, with the EEOC serving in the charging party's stead as the representative of the class. Yet the Courts of Appeals have held that EEOC enforcement actions are not limited to the claims presented by the charging parties. Any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party's complaint are actionable. Id. at 326, 331 (emphasis added). The Supreme Court in General Telephone cited with approval the portion of EEOC v. General Electric Co., 532 F.2d 359 (4th Cir. 1976), in which the Fourth Circuit endorsed EEOC's authority to investigate, conciliate and, if need be, litigate beyond the four corners of a particular charge: [T]he original charge is sufficient to support action by the EEOC as well as a civil suit under the Act for any discrimination stated in the charge itself or developed in the course of a reasonable investigation of that charge, provided such discrimination was included in the reasonable cause determination of the EEOC and was followed by compliance with the conciliation procedures fixed in the Act. Gen. Elec., 532 F.2d at 366 (emphasis added) (cited with approval in Gen. Tel., 446 U.S. at 331). Moreover, the Fourth Circuit explained that a "charge is not to be treated as a common-law pleading that strictly cabins the investigation," but rather it is a "jurisdictional springboard" for an investigation of the allegations in the charge and any other discrimination uncovered while investigating the allegations in the original charge. Id. at 364-65. Other courts have also endorsed the view that EEOC lawsuits are not limited to the charging party's allegations or particular circumstances raised in a charge. See, e.g., EEOC v. Hearst Corp., 553 F.2d 579, 580 (9th Cir. 1977) (holding EEOC could maintain lawsuit alleging discrimination against women and minority groups based upon charge filed by a White male alleging discrimination against himself because the additional claims were "discovered in the course of a reasonable investigation of that charge[, were] included in the EEOC ‘reasonable cause' determination and [were] followed by compliance with the conciliation procedures of the Act"); EEOC v. E.I. DuPont de Nemours & Co., 373 F. Supp. 1321, 1335 (D. Del. 1974) (Stapleton, J.) (explaining that "an individual charge operates not so much as a formal accusatory instrument like an indictment but, rather, as the first step in an investigatory process that must be free to define relevant areas of inquiry as it unfolds," and holding that "the Commission's power to redress individual grievances . . . implies the power to correct the underlying conditions responsible for those grievances, as well as the power to seek relief for other members of the grievant's class"), aff'd on other grounds, 516 F.2d 1297 (3d Cir. 1975). Expanding investigations when appropriate to facilitate a systemic investigation is one the EEOC's core investigatory tools, and is critically important to the Commission's systemic enforcement program. See Directive No. 6 Adopted at Commission Meeting of April 4, 2006 to Consider Recommendations of Systemic Task Force Report ("Possible systemic discrimination should be pursued through expanded charge investigations, through Commissioner Charges and Directed Investigations where appropriate."), available at http://www.eeoc.gov/abouteeoc/meetings/4-4-06/motions.html; 1 EEOC Compl. Man. (BNA) 22:0001 § 22.3 (6/01) (advising investigators that "the scope [of an investigation] may be expanded or limited based on information received during the investigation;" and bases and issues which are "like and related" may be included in the investigation "if, during the investigation, evidence is uncovered pointing to possible violations;" and "an investigation of a branch establishment may be expanded to include other respondent facilities whenever violations appear to exist in these other facilities"); 25:0002 § 25.7 (6/01) ("If an onsite investigation under any statute discloses apparent violations involving Title VII/ADA bases beyond those already being investigated . . . [c]onsideration can then be given to expanding the scope of investigation of an existing Title VII/ADA charge . . . ."); 26:0001 § 26.3 (6/01) (instructing investigators to "[i]nform the parties that the scope of an investigation may be broadened consistent with EEOC's enforcement responsibilities under the applicable statutes"). C. The Commission Reasonably Expanded the Investigation to Include Race in Light of Evidence That a "Root Source" May Have an Unlawful Adverse Impact Based on Both Disability and Race The Commission's request from Kronos for documents "discussing, analyzing or measuring potential adverse impact [on the basis of] race" was reasonable under the circumstances of this case. The EEOC expanded the investigation to include race discrimination because the EEOC discovered a scholarly article, co-written by a Kronos employee, suggesting that the same personality test used by Kroger to deny Sandy a job also may have a disparate impact based on race. II-JA-Tab 6 at 135, 140. Moreover, at the time, there were other charges against Kroger in the Commission's inventory alleging race discrimination in hiring. II-JA-Tab 6 at 104, 108. The article is particularly important, as it is evidence that Kronos's assessment test is a potential root source of discrimination. Thus, it is entirely reasonable for the EEOC to evaluate and investigate fully whether the test has broader discriminatory consequences. The Fourth Circuit's decision in EEOC v. General Electric Co., 532 F.2d 359 (4th Cir. 1976), is again instructive. In that case, the EEOC received two charges filed by Black men who only alleged discrimination based on race. The EEOC's investigation looked into both race and sex discrimination resulting from the company's testing procedures and included both bases in its reasonable cause determination and conciliation efforts. The Fourth Circuit held that the EEOC's lawsuit could include both race and sex claims because the tests "represented a ‘root source of discrimination' that were both racial and sexual," 532 F.2d at 368, and thus the sex claim reasonably grew out of the investigation of the original charges. Similarly, in the instant case, the EEOC's investigation of the race-related impact of Kroger's use of the Kronos Customer Service Assessment test reasonably grew out of the EEOC's investigation of Sandy's charge. The EEOC did not immediately expand the investigation to include race; rather, it did so only after determining that the Kronos Customer Service Assessment test may be a "root source of discrimination" against persons with disabilities and African Americans. The instant case is distinguishable from the case Kronos relied on below, EEOC v. Southern Farm Bureau Cas. Ins. Co., 271 F.3d 209 (5th Cir. 2001), in which the Fifth Circuit affirmed a denial of a subpoena enforcement application that included a basis of discrimination not alleged in the charge. In Southern Farm, the EEOC expanded an investigation of a class race hiring charge to include sex based upon receiving a list from the respondent showing a dearth of female employees. In affirming the district court's denial of enforcement of the EEOC's subpoena, the Fifth Circuit was careful to qualify its opinion to make clear that its decision was based on the "particular facts of the case." 271 F.3d at 210. Specifically, the following combined facts led the Court to its decision: (1) the request related to sex discrimination came nineteen months into the investigation; (2) the EEOC could have filed a Commissioner's charge "thereby freeing the EEOC to demand information relevant to Southern Farm's employment of women"; and (3) the Court saw no relevance between the race discrimination charged and the sex discrimination the EEOC sought to investigate as well. Id. at 211-12. Although the Commission believes the Southern Farm investigation was reasonable, this case presents a stronger rationale for expansion than was present in Southern Farm. In Southern Farm, the expansion of the Commission's investigation was premised on evidence of low numbers of female employees without identification of a specific, objective employer practice that was the common cause. Here, by contrast, the Commission has identified specific evidence that the Kronos assessment test used by Kroger has an adverse impact on African Americans. In other words, unlike in Southern Farm, in this case there is evidence of a root source of discrimination on the basis of race and disability.<7> Cf. EEOC v. Bailey Co., 563 F.2d 439, 449-51 (6th Cir. 1977) (narrowly interpreting the EEOC's authority to investigate and sue on bases not in charge, but endorsing the view that EEOC has broader authority when multiple bases have a "common source of discrimination"). Moreover, while the Court in Southern Farm faulted the EEOC for not obtaining a Commissioner's charge in light of what it saw as a less-than-clear connection between race and sex discrimination in that case, see 42 U.S.C. §§ 2000e-5(b), 2000e-6(e), the Court failed to recognize that requiring the issuance of a Commissioner's charge to obtain the information during an active investigation would be counterproductive and wasteful. As the Fourth Circuit aptly stated, when the EEOC uncovers discrimination in the course of a reasonable investigation other than the discrimination alleged in the charge, the EEOC is "neither obliged to cast a blind eye over such discrimination nor to sever those facts and the discrimination so shown from the investigation in process and file a Commissioner's charge thereon, thereby beginning again a repetitive investigation of the same facts already developed in the ongoing investigation." Gen. Elec., 532 F.2d at 365. A Commissioner's charge would be particularly redundant in this case given its procedural history. Commissioner's charges are best suited for cases, unlike here, in which no pending investigation reasonably can be expanded. In addition, Commissioner's charges make little sense in a situation where, as here, the full Commission has carefully considered a petition seeking a revocation of a subpoena and responded with a detailed explanation of the reasons for denying it. See 29 C.F.R. § 1601.16(b)(2) (stating Commissioners review and make final determination on petitions to revoke subpoenas). The Commissioners' review and determination on petitions to revoke provides far more protection of the interests, both procedural and substantive, of subpoena targets than do the minimal requirements for a single Commissioner to file a Commissioner's charge. See Shell Oil, 466 U.S. at 62 (Commissioner's charge may be filed when Commissioner has "reason to think" an employer has engaged in a pattern or practice of discrimination); id. at 73 (Commissioner's charge need only state groups believed to have been discriminated against, categories of positions from which they have been excluded, method by which the discrimination may have been effected, and period of time discrimination is suspected). Requiring the EEOC to obtain a Commissioner's charge in order to make the same demand for documents already approved by the Commissioners "would be simply a useless exercise in technical nicety." Gen. Elec., 532 F.2d at 365-66. Nor does it matter that the Kronos assessment test implicates discriminatory bases in two different statutes – the ADA and Title VII. The ADA provides the Commission the same "powers, remedies and procedures" as those set forth in Title VII, see 42 U.S.C. § 12117(a), and thus, for procedural purposes, as long as the expansion is otherwise reasonable, there is no compelling reason to distinguish a disability charge being expanded to include race from, for example, a sex charge being expanded to include race. Indeed, the Commission has been faced with the possibility that multiple EEOC-enforced statutes might be implicated by a single charge filing ever since 1979 when the Commission received from the Department of Labor enforcement authority for the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. In 1983, shortly after receiving such authority, the Commission promulgated procedural regulations explicitly contemplating that an investigation of a charge under one statute might uncover evidence relevant to a violation of another statute: "Whenever the Commission receives a charge or obtains information relating to possible violations of one of the statutes which it administers and the charge or information reveals possible violations of one or more of the other statutes which it administers, the Commission will treat such charges or information in accordance with all such relevant statutes." 29 C.F.R. § 1626.22(b). This regulation most directly applies when it appears that the charging party has been discriminated against on more than one basis. See 29 C.F.R. § 1626.22(c) (charge may be amended and relation-back rule applies). However, the regulation also permits the interpretation that the EEOC has authority to expand an investigation to include discrimination prohibited by a statute within its jurisdiction, including, as in this case, expanding an ADA investigation to include Title VII when the evidence suggests both statutes are implicated by the same root source of discrimination. Cf. 29 C.F.R. § 1626.22(a) ("These rules and regulations shall be liberally construed to effectuate the purposes and provisions of this Act and any other acts administered by the Commission.") (emphasis added). In sum, the EEOC's expansion of this investigation was reasonable, and the documents sought were relevant. The district court abused its discretion in failing to enforce the EEOC's subpoena and in implicitly crediting Kronos's arguments for an overly restrictive interpretation of the Commission's investigative authority.<8> II. THE CONFIDENTIALITY ORDER ADOPTED BY THE DISTRICT COURT IS CONTRARY TO LAW AND PLACES UNTENABLE RESTRICTIONS ON THE COMMISSION'S LEGITIMATE LAW ENFORCEMENT ACTIVITIES A. Strong Legal Protections of Confidentiality Exist Without the Confidentiality Order As a general matter, several legal protections of the confidentiality of information contained in charge files already exist. First and foremost, Title VII and the ADA prohibit any EEOC employee from making charges public or making public "in any manner whatever any information" acquired pursuant to an investigation prior to a "proceeding . . . involving such information,"<9> under penalty of a $1000 fine and/or imprisonment of up to one year. See 42 U.S.C. § 2000e-8(e) (applying to "any officer or employee"); 29 C.F.R. § 1601.22. Title VII and the ADA provide analogous confidentiality protections for information related to the period in which the EEOC attempts to conciliate a resolution of a charge. See 42 U.S.C. § 2000e-5(b). These confidentiality provisions represent the balance Congress struck between the need for confidentiality and the need for the EEOC to be free to ferret out discrimination. See Univ. of Pa. v. EEOC, 493 U.S. 182, 192-94 (1990) (holding peer review materials not privileged from disclosure). Pursuant to these provisions, the EEOC routinely denies requests for charge file information made by third parties, and denies requests even made by the parties themselves when unconnected to an actual or potential lawsuit between them. See EEOC FOIA Handbook § XI (stating that pursuant to exemption 3 of the FOIA, the EEOC will withhold "[a]ny Title VII or ADA charge file information requested by anyone other than the Charging Party or the Respondent to the charge, such as the charge file or information concerning the existence of charge files," and will withhold "Title VII or ADA information requested by the Charging Party or the Respondent after the time limitation for filing a lawsuit has expired and no lawsuit has been filed"), available at http://www.eeoc.gov/foia/hb- 11.html (available at http://www.eeoc.gov/eeoc/foia/hb-11.cfm after November 6, 2009, due to revision of EEOC web site). Other confidentiality protections supplement those in Title VII and the ADA. Under the Privacy Act of 1974, in order to protect the privacy of charging parties, EEOC charge files and the information contained in them generally cannot be disclosed. See 5 U.S.C. § 552a(b). More directly to Kronos's concerns, the Trade Secrets Act forbids the EEOC and its employees from disclosing trade secrets or other confidential commercial information. See 18 U.S.C. § 1905 (forbidding government officers and employees from disclosing information that concerns or relates to "trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses or expenditures of any person, firm, partnership, corporation, or association," under penalty of $1000 fine and/or imprisonment of up to one year, and removal from office). By statute and policy, the EEOC and its employees may not disclose any information covered by the Trade Secrets Act during or after an investigation of a charge. See 5 U.S.C. § 552(b)(4) (stating the FOIA disclosure not required for "trade secrets and commercial or financial information obtained from a person and privileged or confidential"); 29 C.F.R. § 1610.19(a) (stating confidential commercial information "shall not be disclosed," and setting forth EEOC notice and objection procedures pursuant to FOIA); 1 EEOC Compl. Man. § 83.4(e) (requiring EEOC employees to withhold from the charging party "information . . . in good faith identified by the submitter as trade secrets or confidential commercial information barred from disclosure by the Trade Secrets Act") (Rev. 9/09), available at http://www.eeoc.gov/foia/section-83.html (available at http://www.eeoc/foia/section83.cfm after November 6, 2009, due to revision to EEOC web site). Thus, to the extent the EEOC's subpoena calls for Kronos to produce documents containing or referring to trade secret and confidential commercial information, Kronos's interest in the secrecy of this information is fully protected by the Title VII/ADA confidentiality provisions, the Privacy Act, and the Trade Secrets Act. Against this legal backdrop, it is even clearer that the district court's confidentiality order was an abuse of discretion, as explained below. B. The Confidentiality Order's Definition of Confidential Material is Overbroad and Its Treatment of FOIA Requests is Contrary to FOIA The district court's confidentiality order should be vacated because the scope of material deemed confidential is over-inclusive and the order contravenes statutory obligations placed on the Commission by the FOIA.<10> Due to the confidentiality order's broad definition of "Confidential Material," the order is not limited to items protected by the Trade Secrets Act or to "confidential commercial information" exempted from disclosure under the FOIA. See I-JA-Tab 4 at 8. Instead, the order covers all documents or information produced by Kronos pursuant to the subpoena, all documents or information referring to or reflecting information obtained from Kronos's production, and all EEOC notes or memoranda made by the EEOC during the investigation. See id. The breadth of the definition of "Confidential Material" runs afoul of the EEOC's FOIA obligations in several respects. First, it may include documents which in whole or in part are not covered by a FOIA exemption. Moreover, even if a FOIA exemption does apply, to the extent withholding all or part of a document pursuant to the exemption would be discretionary, the government's policy is to lean toward disclosure. See Attorney General Holder's FOIA Guidelines, 1, 2 ("encourag[ing] agencies to make discretionary disclosures of information;" advising agencies not to withhold information which there is discretion to disclose "merely because [the agency] can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption;" and stating DOJ will defend denial of a FOIA request only if an agency reasonably foresees that disclosure would harm an interest protected by a FOIA exemption or if disclosure is prohibited by law), available at http://www.usdoj.gov/ag/foia-memo- march2009.pdf. The district court's order, however, by defining confidential material so broadly as to include information not protected by the FOIA exemption for trade secrets or confidential commercial information, may lead the EEOC to keep secret from a proper FOIA requester (e.g., parties to the charge in connection with contemplated or actual litigation on the charge) information from the file that the EEOC should disclose. In addition, the FOIA does not contemplate the EEOC predetermining in blanket fashion that all material produced pursuant to a subpoena is covered by a FOIA exemption. Rather, the EEOC should make an actual determination on such a claim by reviewing the documents in question, and notify Kronos of any EEOC determination that material Kronos labeled confidential commercial information is non-exempt, so Kronos could then "seek a court injunction to prevent release of the records if it so chooses." 29 C.F.R. § 1610.19(e); see also FCC v. Schreiber, 381 U.S. 279, 295-96 (1965) (holding district court erred in rejecting FCC's refusal to agree in advance that information pursuant to subpoena should not be produced in a public hearing: "The Presiding Officer [conducting the investigation] did not know what information would actually be sought, what questions asked. Indeed, he could only speculate as to whether the Commission would seek to elicit any data which, if disclosed to MCA's competitors, would work competitive harm. . . . If and when information was demanded which if disclosed might in fact injure MCA competitively, there would be ample opportunity to request that it be received in confidence, and to seek judicial protection if the request were denied."). The district court's confidentiality order thus could conflict with the EEOC's legal obligations pursuant to the FOIA. C. The Limitations on the Commission's Use of Subpoenaed Material Impermissibly Undermine and Interfere with the Commission's Law Enforcement Activities Many of the limitations the district court placed on the EEOC's use of the information provided by Kronos would tie the agency's hands and unnecessarily interfere with the agency's investigation of, and potential litigation based on, this charge and other charges to which the material might be relevant.<11> Cf. Corrigan, 347 F.3d at 65 (stating that courts should not use occasion of review of administrative subpoenas to "entangle" themselves in agency investigations so as to "throw great amounts of sand into the gears of the administrative process"). Specifically, the "need to know" restriction on who within the EEOC may see the information is unnecessary given that the all Commission employees are covered by the Title VII/ADA confidentiality provisions, see 42 U.S.C. §§ 2000e-5(b)-- (same). Thus, there is no reason to limit access to this information by EEOC personnel who routinely use subpoenaed information in the performance of their jobs. Notably, the Privacy Act, which prevents the EEOC from disclosing information contained in charge files except in accordance with its provisions, already contains a "need to know" exception, see 5 U.S.C. § 552a(b)(1), but this provision has never hamstrung the EEOC's intra-agency sharing of information for law enforcement purposes in the way contemplated by the confidentiality order adopted by the court. Similarly, the restrictions on using subpoenaed information in other investigations, on placing relevant information in the charge files of those investigations, and on putting the material in a centralized database, are inconsistent with the EEOC's fundamental law enforcement activities. In EEOC v. Associated Dry Goods, 449 U.S. 590 (1981), the Supreme Court held that placing relevant information in multiple charge files is fully compliant with the statute. See id. 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). Although Associated Dry Goods addressed the EEOC's more common practice of placing relevant information in multiple charge files involving the same employer – and not, as in this case, the EEOC's authority to place information in multiple charge files involving Kroger or other employers if the information is relevant to them—the principles that animated the Supreme Court's decision support the same conclusion here. An absurdity otherwise would result—the EEOC would be forced to re-subpoena Kronos for documents already in the EEOC's possession. Likewise, the provision in the confidentiality order requiring the EEOC to return materials obtained pursuant to the subpoena and to destroy any related EEOC-generated notes or memoranda conflicts with the EEOC's right to use Kronos-provided materials in conjunction with other charges to which it is relevant. Moreover, documents that make their way into EEOC charge files become government records subject to the Federal Records Act, which prohibits destruction of government records except according to its requirements. See 44 U.S.C. § 3314 (no records may be "alienated or destroyed" except in accordance with the Act's provisions). In addition, a key flaw of this aspect of the court's order is that it does not contemplate the potential that reasonable cause will be found or that, if conciliation fails, the EEOC may file a civil suit. If the Commission decides to litigate this case, its decision to do so will be based on the charge file, including any EEOC-generated notes therein. "Clearly, an alleged perpetrator of discrimination cannot be allowed to pick and choose the evidence which may be necessary for an agency investigation." Univ. of Pa., 493 U.S. at 193 (quoting Franklin & Marshall Coll., 775 F.3d at 116). A necessary corollary to this proposition is that Kronos, the holder of relevant evidence, should not be permitted essentially to dictate the terms under which it will produce evidence to the EEOC, based on an over-inflated assertion of concern for secrecy above the strong existing legal framework for protecting confidentiality, such that the agency's reasonable exercise of its law enforcement authority is impeded. This Court should reject Kronos's attempt to do so. Cf. id. at 194 (declining to endorse litigation-producing tactics designed to delay and frustrate EEOC's efforts to investigate and remedy discrimination). CONCLUSION For the foregoing reasons, the Commission respectfully requests that the district court's orders be vacated, and that the EEOC's subpoena be enforced. Respectfully submitted, JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ________________________ CORBETT L. ANDERSON Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4579 CERTIFICATE OF BAR MEMBERSHIP Under Third Circuit L.A.R. 28.3(d), I certify that, as an attorney representing an agency of the United States, I am not required to be admitted to the bar of this Court. I also certify that all other attorneys whose names appear on this brief likewise represent an agency of the United States and are also not required to be admitted to the bar of this Court. See 3d Cir. L.A.R. 28.3, comm.. comt. November 3, 2009 ________________________ Corbett L. Anderson Counsel for Appellant EEOC CERTIFICATE OF COMPLIANCE (1) This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 10,809 words, excluding the parts of the brief excepted by Fed. R. App. P. 32(a)(7)(B)(iii). (2) 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 this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in 14-point Times New Roman font. November 3, 2009 ________________________ Corbett L. Anderson Counsel for Appellant EEOC CERTIFICATE OF IDENTICALLY FILED BRIEFS Pursuant to L.A.R. 31.1(c), I certify that the text of the electronically filed version of this brief is identical to the text of the hard copies of the brief filed with the Court. November 3, 2009 ________________________ Corbett L. Anderson Counsel for Appellant EEOC CERTIFICATE OF VIRUS CHECK Pursuant to L.A.R. 31.1(c), I certify that a virus check using Symantec AntiVirus, program 10.1.6.6000, was performed on the electronic version of this brief on November 3, 2009, prior to electronic filing with the Court. November 3, 2009 ________________________ Corbett L. Anderson Counsel for Appellant EEOC CERTIFICATE OF SERVICE I, Corbett L. Anderson, certify that on November 3, 2009, the same day that I transmitted to the court an electronic version of the brief for Appellant EEOC, I caused ten (10) printed and bound copies of the brief to be sent to the Clerk of the United States Court of Appeals for the Third Circuit, by first-class mail, postage prepaid. I also certify that the following counsel, who have agreed to accept electronic service, will be served by the appellate CM/ECF system and that one paper copy of the brief bound with Volume I of the Joint Appendix will be served by first-class mail, postage prepaid, to: Counsel for Respondent-Appellee R. Lawrence Ashe, Jr. Ashe, Rafuse & Hill LLP 1355 Peachtree Street, N.E., Suite 500 Atlanta, Georgia 30309-3232 (404) 253-6001 lawrenceashe@asherafuse.com Terrence H. Murphy Buchanan Ingersoll & Rooney PC 301 One Oxford Centre, 20th Fl. Pittsburgh, PA 15219-1410 (412) 392-2044 terrence.murphy@bipc.com November 3, 2009 ________________________ Corbett L. Anderson Counsel for Appellant EEOC *********************************************************************** <> <1> "[#]-JA-Tab [#] at [#]" refers to material in the Joint Appendix, cited by volume, tab, and page number. "Doc. No. [#]" refers to the district court docket entry. <2> Sandy's score on the Customer Service Assessment was 40%. II-JA-Tab 6 at 33. On a second section of the test - the Dependability Assessment - Sandy scored well, 84%. Id. <3> Application summaries submitted to the EEOC by Kroger have a header at the top reading "Powered by Kronos." II-JA-Tab 6 at 30-33. <4> It has not been disputed that Kroger uses the Kronos assessment test nationwide for all retail positions. <5> The EEOC's subpoena contained six items, but the EEOC informed the district court in its reply brief that, "[i]n the interest of addressing Kronos's concern with releasing information about the assessments not utilized by Kroger, EEOC will not seek enforcement of Paragraph 6 of the Subpoena, . . . ." Doc. No. 12 at 5. <6> The Uniform Guidelines on Employee Selection Procedures (UGESP) apply most directly to Title VII. See subsection I.C., infra, regarding the Title VII component of the EEOC's investigation. However, even though UGESP does not apply directly to the ADA, the ADA requires that if a test screens out or tends to screen out an individual with a disability or a class of individuals with a disability, it must be shown to be job related for the position(s) in question and consistent with business necessity. 42 U.S.C. § 12112(b)(6). Validity evidence regarding Kroger and others who use the Kronos assessment test "might cast light" on job relatedness and business necessity. <7> To be sure, the Commission believes Southern Farm was wrongly decided because the court there failed properly to consider the Commission's broader responsibility to eradicate employment discrimination that comes to light in the course of a reasonable investigation. See EEOC v. Citicorp Diners Club, Inc., 985 F.2d 1036, 1039-40 (10th Cir. 1993) (enforcing EEOC subpoena for documents relating to national origin discrimination in investigation of charge alleging race and sex discrimination, stating "[t]he EEOC seeks to vindicate the public interest, which is broader than the interest of the charging parties"). <8> While Kronos has at times used the phrase "undue burden" in its briefing below, the substance of its arguments focused instead on relevance and confidentiality. Kronos has made no record of any burden sufficient to satisfy this element. See, e.g., Maryland Cup, 758 F.2d at 477 ("The burden of proving that an administrative subpoena is unduly burdensome is not easily met. The party subject to the subpoena must show that producing the documents would seriously disrupt its normal business operations. Maryland Cup has not made the required showing of serious disruption. The company merely makes . . . conclusory allegations . . . .") (citations omitted). <9> When a court proceeding "involv[es] such information," 42 U.S.C. § 2000e-8(e), the EEOC will make disclosures in a limited way. In this case, for instance, in the briefs and exhibits in this court and below, the EEOC has made limited disclosures of the existence and nature of other race/hiring charges pending against Kroger because this is a proceeding "involving such information" in the sense that their existence and nature were one of the reasons for the Commission's second expansion of its investigation. <10> Notwithstanding that the Commission contributed to the district court's error in part by agreeing not to disclose under the FOIA any information Kronos objects to having disclosed, the district court's order should be vacated as contrary to the FOIA. The Commission's mistake cannot be a basis for affirming an order which could require the agency to violate federal law. <11> In view of the EEOC's agreement below not to disclose subpoenaed material to Sandy or her agents during the investigation, see II-JA-Tab 9 at 280, the EEOC does not challenge this aspect of the confidentiality order. Similarly, the EEOC would honor the portion of the confidentiality order stating that the EEOC would disclose material covered by the subpoena to individuals outside the Commission (including but not limited to expert witnesses) when mutually agreed upon in writing. Id. at 279. Normally, if not otherwise prohibited by law, during an investigation the EEOC is not prohibited by the Title VII/ADA confidentiality provisions to make disclosures of charge file information to a charging party, her agents, and witnesses when necessary to facilitate effective law enforcement. See EEOC v. Associated Dry Goods, 449 U.S. 590, 596-604 (1981); 29 C.F.R. § 1601.22. In light of its prior agreement, however, the Commission agrees in this instance to be held to its bargain to waive this authority, as such waiver does not contravene federal law.