U.S. Equal Employment Opportunity Commission v. Enterprise Leasing Company of Florida, LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 0:23-CV-61744-DAMIAN/AUGUSTIN-BIRCH

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

Plaintiff,

v.

ENTERPRISE LEASING

COMPANY OF FLORIDA, LLC,

Defendant.

________________________________________/

ORDER DENYING DEFENDANT’S MOTIONS TO COMPEL AND GRANTING IN

PART, DENYING IN PART, AND RESERVING IN PART PLAINTIFF’S MOTION

TO COMPEL COMPLETE RESPONSES TO FIRST REQUEST FOR PRODUCTION

This cause comes before the Court on four Motions to Compel. Defendant Enterprise

Leasing Company of Florida, LLC’s (“Enterprise”) Motion to Compel Plaintiff Equal

Employment Opportunity Commission’s (“EEOC”) Statistical Analysis is briefed at docket entries

45, 54, and 57. Enterprise’s Motion to Compel Conciliation-Related Documents is briefed at

docket entries 46, 56, and 58. Enterprise’s Motion to Compel Claimant Information is briefed at

docket entries 51, 55, and 59. The EEOC’s Motion to Compel Complete Responses to First

Request for Production is briefed at docket entries 65, 73, and 74. In addition, the EEOC filed a

Declaration of EEOC Chair Charlotte A. Burrows at docket entry 60-1 and filed exhibits under

seal for in camera review at docket entry 71. Enterprise filed a Notice of Clarification at docket

entry 82. The Court held a hearing on Enterprise’s three Motions to Compel on February 28 and

held a hearing on the EEOC’s Motion to Compel on March 15. The Court held both hearings via

video teleconference. The Court has carefully considered the parties’ submissions, the arguments

that counsel made during the hearings, and the record and is otherwise fully advised in the

premises. For the reasons set forth below, Enterprise’s Motions to Compel [DE 45, 46, and 51]

are denied, and the EEOC’s Motion to Compel [DE 65] is granted in part, denied in part, and

reserved in part.

I. Background

The EEOC brings this case under the Age Discrimination in Employment Act of 1967

(“ADEA”), contending that Enterprise intentionally fails to hire individuals for management

trainee positions based on an individual’s age. DE 1 ¶ 1. The EEOC alleges that Enterprise

“intentionally under-hires applicants protected by the ADEA for management trainee positions

based on their age” and that “[a]pplicants age 40 and older are selected at a much lower rate than

applicants under 40 and the difference is statistically significant.” Id. ¶ 17. As two examples of

statistically significant under-hiring, the EEOC alleges that (1) in August 2019, only 2.3% of

Enterprise’s management trainees were age 40 or older; and (2) in October 2020, only 1.8% of

Enterprise’s management trainees were age 40 or older. Id. ¶¶ 18–19. Among the relief that the

EEOC seeks are a permanent injunction precluding Enterprise from discriminating in any

employment practice on the basis of age and an award of wages and liquidated damages for the

individuals Enterprise purportedly discriminated against. Id. at 5–6.

II. Enterprise’s Motion to Compel Statistical Analysis [DE 45]

Through several interrogatories and requests for production of documents, Enterprise seeks

information about the statistical analysis that the EEOC performed using Enterprise’s applicant

data that resulted in the EEOC concluding that Enterprise discriminates in hiring based on age.

The EEOC objects to producing that information based on the deliberative process privilege, and

the EEOC logged the relevant documents in a privilege log. See DE 45-2. Enterprise asks the

Court to overrule the EEOC’s objections and to compel the EEOC to produce the information.

As an initial matter, Enterprise maintains that the EEOC waived its assertions of privilege

by failing to timely serve a privilege log. DE 45 at 3.

When a party withholds information otherwise discoverable by claiming

that the information is privileged or subject to protection as trial-preparation

material, the party must . . . describe the nature of the documents, communications,

or tangible things not produced or disclosed—and do so in a manner that, without

revealing information itself privileged or protected, will enable other parties to

assess the claim.

Fed. R. Civ. P. 26(b)(5)(A). “Unless the parties agree on a different time or the Court orders

otherwise, the privilege log . . . shall be served no later than fourteen (14) days following service

of . . . any interrogatory response or document production from which some information or

documents are withheld on the basis of such privilege or protection . . . .” Southern District of

Florida Local Rule 26.1(e)(2)(D). While a court may deem an assertion of privilege waived if a

party fails to timely serve a privilege log, a finding of waiver is a “harsh sanction.” Henderson v.

Holiday CVS, L.L.C., No. 09-80909-CIV, 2010 WL 11505169, at *1 (S.D. Fla. Sept. 24, 2010)

(refusing to find waiver when the defendants submitted their privilege log late, but the plaintiffs

suffered no prejudice).

The EEOC served its responses that asserted privilege on January 12 and served its

privilege log on February 1, meaning that the privilege log was six days (four business days) late.

See DE 45-1 and -2. The privilege log is substantial insofar as it contains 678 item numbers.

DE 45-2. Further, Enterprise does not contend that it suffered any prejudice due to the privilege

log being a few days late. Under these facts, the Court will not deem the EEOC’s assertions of

privilege waived.

The Court now turns to the merits of the EEOC’s assertions of the deliberative process

privilege. “To protect agencies from being forced to operate in a fishbowl, the deliberative process

privilege shields from disclosure documents reflecting advisory opinions, recommendations and

deliberations comprising part of a process by which governmental decisions and policies are

formulated.” U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., 592 U.S. 261, 267 (2021) (citation

and quotation marks omitted) (“To encourage candor, which improves agency decisionmaking,

the privilege blunts the chilling effect that accompanies the prospect of disclosure.”). “The purpose

of this privilege is to allow agencies to freely explore possibilities, engage in internal debates, or

play devil’s advocate without fear of public scrutiny.” Moye, O’Brien, O’Rourke, Hogan, &

Pickert v. Nat’l R.R. Passenger Corp., 376 F.3d 1270, 1277 (11th Cir. 2004).

The deliberative process privilege “distinguishes between predecisional, deliberative

documents, which are exempt from disclosure, and documents reflecting a final agency decision

and the reasons supporting it, which are not.” U.S. Fish & Wildlife Serv., 592 U.S. at 268. “A

‘predecisional’ document is one prepared in order to assist an agency decision-maker in arriving

at his decision and may include recommendations, draft documents, proposals, suggestions, and

other subjective documents which reflect the personal opinions of the writer rather than the policy

of the agency.” Moye, 376 F.3d at 1277; see also U.S. Fish & Wildlife Serv., 592 U.S. at 269

(stating that documents “are ‘predecisional’ if they were generated before the agency’s final

decision on the matter”). “A document is ‘deliberative’ if the disclosure of the materials would

expose an agency’s decision-making process in such a way as to discourage candid discussion

within the agency and, thereby, undermine the agency’s ability to perform its functions.” Moye,

376 F.3d at 1278; see also U.S. Fish & Wildlife Serv., 592 U.S. at 269 (stating that documents “are

‘deliberative’ if they were prepared to help the agency formulate its position”).

Enterprise argues that the statistical analysis is no longer “predecisional” because the

EEOC adopted the statistical analysis as its policy or position by charging Enterprise with

discrimination and filing this lawsuit. DE 45 at 2. Enterprise cites no authority for a proposition

that information a government agency considers in deciding to file a lawsuit is no longer

privileged. Caselaw in fact supports the opposite proposition: that information a government

agency considers in deciding to file a lawsuit can be privileged. E.g., United States v. Farley,

11 F.3d 1385, 1389 (7th Cir. 1993) (concluding that documents clearly were part of the

deliberative process that led the Department of Justice to sue and were privileged). Enterprise’s

unsupported argument does not persuade the Court that the EEOC’s statistical analysis is not

predecisional.

The deliberative process privilege “requires different treatment for material reflecting

deliberative or policy-making processes on the one hand, and purely factual, investigative matters

on the other.” Fla. House of Representatives v. U.S. Dep’t of Com., 961 F.2d 941, 947 (11th Cir.

1992) (quotation marks omitted) (stating that the privilege focuses on documents reflecting

advisory opinions and acknowledging that “the task of drawing a line between what is fact and

what is opinion can at times be frustrating and perplexing”). Enterprise asserts that the EEOC

already conceded when briefing a motion to dismiss, and that the Honorable William P.

Dimitrouleas, United States District Court Judge, already held when ruling on the motion to

dismiss, that the statistical analysis is factual rather than opinion. DE 45 at 2. Enterprise misstates

the record. The EEOC stated when briefing the motion to dismiss that the Complaint contains “the

factual allegation that applicants 40 and older are selected at a lower rate than applicants under

40,” and this factual allegation is based on statistical analysis. DE 22 at 13 & n.11 (emphasis

omitted). The EEOC did not contend that the statistical analysis itself is factual. Judge

Dimitrouleas stated that the Complaint’s factual allegations include “that applicants age 40 and

older are selected at a much lower rate than applicants under 40 and the difference is statistically

significant.” DE 26 at 7–8. Judge Dimitrouleas did not rule that the statistical analysis itself is

factual.

In order to evaluate the EEOC’s privilege assertions, the Court ordered the EEOC to file

under seal the purportedly privileged documents, and the EEOC complied. DE 63; DE 71. The

Court has conducted a careful and thorough in camera review of those documents. The Court

concludes that all of the documents are privileged. Without revealing the content of the

documents, they consist of internal emails and email chains (rows 2–3, 5–9, 16–33, and 65–69),

internal memoranda (rows 4, 104, 106–08, and 129–31), internally created spreadsheets and other

documents that reflect the individuals that the EEOC chose to include to conduct its analysis (rows

10–13, 34–57, 110–11, 115–16, 119–20, and 122–28), and miscellaneous other documents that

reflect the EEOC’s analysis and opinions (rows 109 and 112–13).1 All of these documents reflect

the EEOC’s deliberations, decisions, opinions, and recommendations in the context of evaluating

whether to initiate this lawsuit.

“The deliberative process privilege may be overcome where there is a sufficient showing

of a particularized need to outweigh the reasons for confidentiality.” Farley, 11 F.3d at 1389;

see also In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) (“The deliberative process privilege

is a qualified privilege and can be overcome by a sufficient showing of need.”). A determination

as to need is made flexibly on a case-by-case basis, balancing the competing interests and taking

into account factors such as the relevance of the evidence, the availability of other evidence, the

seriousness of the litigation, the role of the government, and the possibility of future timidity by

government employees. In re Sealed Case, 121 F.3d at 737–38.

Enterprise contends that it “has a substantial interest in understanding the analysis and

assumptions underpinning the ADEA claim” the EEOC raised against it. DE 45 at 3. The EEOC

states that “it will not rely on the in-house statistical analysis from its consulting expert in proving

1 These row numbers correspond with those in the version of the privilege log filed at docket entry 60-2, which contains

cross-references to the item numbers appearing in the version of the privilege log filed at docket entry 45-2.

its claims; rather, EEOC’s testifying expert will conduct a new analysis with new data produced

by Enterprise during litigation.” DE 54 at 4. Given the EEOC’s representation that it will not use

the pre-suit statistical analysis to prove its case, the Court concludes that Enterprise does not have

a particularized need for the documents at issue that outweighs the EEOC’s need for

confidentiality. However, should the EEOC rely on the pre-suit statistical analysis despite its

representation that it will not do so, Enterprise may move the Court to reevaluate its ruling and

compel a greater production of information. Enterprise’s Motion to Compel the EEOC’s Statistical

Analysis is denied.

III. Enterprise’s Motion to Compel Conciliation-Related Documents [DE 46]

Before instituting an action under the ADEA, the EEOC “shall attempt to eliminate the

discriminatory practice or practices alleged, and to effect voluntary compliance with the

requirements of [the ADEA] through informal methods of conciliation, conference, and

persuasion.” 29 U.S.C. § 626(b). Through an interrogatory and several requests for production of

documents, Enterprise seeks information about the parties’ pre-suit conciliation process. The

EEOC objects to producing the conciliation information on the basis that it contains confidential

settlement discussions.2 Enterprise asks the Court to overrule the EEOC’s objections and to

compel the EEOC to produce the conciliation information.

The EEOC relies on Federal Rule of Evidence 408 to support its objections. Under

Rule 408, evidence of “furnishing, promising, or offering--or accepting, promising to accept, or

offering to accept--a valuable consideration in compromising or attempting to compromise the

claim” and “conduct or a statement made during compromise negotiations about the claim” is

2 The EEOC also objects to producing certain conciliation information on the bases of the deliberative process

privilege and the attorney-client privilege. Enterprise does not address those privileges in the Motion to Compel.

inadmissible “either to prove or disprove the validity or amount of a disputed claim or to impeach

by a prior inconsistent statement or a contradiction.” Fed. R. Evid. 408(a). Rule 408 speaks of

the admissibility of evidence. Enterprise correctly points out that information may be discoverable

even if it is not admissible. See Fed. R. Civ. P. 26(b)(1) (“Information within [the] scope of

discovery need not be admissible in evidence to be discoverable.”).

However, evidence must be relevant to be discoverable.3 Id. (“Parties may obtain

discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and

proportional to the needs of the case . . . .”). Enterprise maintains that the conciliation information

is relevant to its affirmative defenses that challenges the sufficiency of the parties’ conciliation

process. DE 46 at 3 (“Enterprise has asserted a defense that EEOC’s conciliation efforts were

insufficient.”); DE 58 at 2 (“Enterprise asserts that EEOC inadequately conciliated in this case,

and it is entitled to discover documents that bear on that defense.”); see DE 43 at 7 (pleading an

affirmative defense that the “EEOC failed to comply with the statutory prerequisites to suit,

including its duty to conciliate”).

To meet the statutory requirement to conciliate, the EEOC “must tell the employer about

the claim—essentially, what practice has harmed which person or class—and must provide the

employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance.”

Mach Mining, LLC v. E.E.O.C., 575 U.S. 480, 488 (2015). “Judicial review of those requirements

(and nothing else) ensures that the [EEOC] complies with the statute.” Id. at 494 (describing

judicial review of whether the EEOC met the conciliation requirement as being “relatively

barebones”); see also id. at 483 (“We hold that a court may review whether the EEOC satisfied its

3 Enterprise asserts that the EEOC has not objected to producing the conciliation information on the basis of relevance.

DE 46 at 3. But the EEOC has objected that the conciliation information contains confidential settlement discussions.

Rule 408 limits the ability to use settlement-related evidence, and thus the EEOC’s objections put the relevance of

such evidence at issue.

statutory obligation to attempt conciliation before filing suit. But we find that the scope of that

review is narrow, thus recognizing the EEOC’s extensive discretion to determine the kind and

amount of communication with an employer appropriate in any given case.”).

The Court cannot comprehend how Enterprise, being the party with whom the EEOC

conciliated, would not already have in its own possession the information showing whether the

EEOC met the basic requirements of conciliation. Thus, the Court sees no need to compel the

EEOC to produce any conciliation information. See E.E.O.C. v. Tex. Roadhouse, Inc., No. CIV.A.

11-11732, 2014 WL 4471521, at *5 (D. Mass. Sept. 9, 2014) (“As to the topic of conciliation, the

Court assumes that defendants, since they were participants in any attempt to conciliate the charge,

have all the factual documents and information to which they are entitled.”); E.E.O.C. v. Evans

Fruit Co., No. CV-10-3033, 2012 WL 442025, at *3 (E.D. Wash. Feb. 10, 2012) (“It is also noted

that Defendant, as the focus of the investigation and a participant in the conciliation process, must

be largely aware of what the EEOC did and did not do in these respects.”).

Enterprise maintains that the conciliation information may be relevant for some purpose

other than to show the sufficiency of the conciliation process, such as to show “the factual basis

for EEOC’s belief that Enterprise engaged in age discrimination and what relief [the EEOC] may

pursue.” DE 46 at 3. Enterprise may obtain that information through other means such as

discovery requests and deposition questions that directly ask for the factual basis for the EEOC’s

discrimination claim and for the relief it is pursuing. See Evans Fruit Co., 2012 WL 442025, at

*3 (“Defendant has had, and still has, sufficient opportunity to discover the facts underlying the

EEOC’s Title VII claims by conducting its own investigation and deposing the individual charging

parties and class members. The details of the EEOC’s investigative and conciliation efforts are

not essential to Defendant’s understanding and defense of the Title VII claims.”). Enterprise’s

Motion to Compel Conciliation-Related Documents is denied.

IV. Enterprise’s Motion to Compel Claimant Information [DE 51]

Through an interrogatory and several requests for production of documents, Enterprise

seeks information concerning the EEOC’s communications with the claimants and potential

claimants in this case—the job applicants Enterprise purportedly did not hire based on their age.

The EEOC objects to producing that information based on the attorney-client privilege and work

product protection. Enterprise asks the Court to overrule the EEOC’s objections and to compel

the EEOC to produce the information. The parties’ primary disagreement is over whether an

attorney-client relationship exists between the EEOC and the claimants and potential claimants.

“Any person aggrieved may bring a civil action in any court of competent jurisdiction for

such legal or equitable relief as will effectuate the purposes of [the ADEA].” 29 U.S.C.

§ 626(c)(1). However, “the right of any person to bring such action shall terminate upon the

commencement of an action by the Equal Employment Opportunity Commission to enforce the

right of such employee under [the ADEA].” Id.

“The distinctive enforcement scheme of the ADEA shows unmistakenly that the EEOC has

representative responsibilities when it initiates litigation to enforce an employee’s rights.”

E.E.O.C. v. U.S. Steel Corp., 921 F.2d 489, 494 (3d Cir. 1990) (evaluating for the purpose of

applying res judicata whether the EEOC represents individuals in an ADEA lawsuit).

Congress would not have crafted this enforcement scheme—on the one hand,

creating an individual cause of action and, on the other, cutting off the individual’s

right to sue once the EEOC begins its action—unless Congress intended for the

EEOC to serve as the individual’s representative when it seeks to enforce that

individual’s rights.

Id. at 494–95 (“If Congress did not believe that the individual’s claim would be adequately pressed

by the EEOC, it would surely have preserved the individual’s right to bring suit either during or

after the EEOC suit.”).

Several courts have held that, when the EEOC brings an ADEA enforcement action, the

relationship between the EEOC and the claimants is akin to an attorney-client relationship.

See E.E.O.C. v. Johnson & Higgins, Inc., No. 93 CIV. 5481, 1998 WL 778369, at *4–5 (S.D.N.Y.

Nov. 6, 1998) (stating that “[t]he attorney-client privilege can cover communications between

EEOC counsel and the employees upon whose behalf it sues” and holding that the attorney-client

privilege applied to certain documents and communications between the EEOC and ADEA

claimants); E.E.O.C. v. Nebco Evans Distrib., Inc., No. 8:CV96-00644, 1997 WL 416423, at *4

(D. Neb. June 9, 1997) (“[T]he Court is satisfied that the EEOC is serving as the applicants’

representative because it has filed suit for individual relief on their behalf and thereby cut off the

applicants’ private right of action for that relief. Because of the representative relationship,

informal interviews by the defendant with an applicant without the prior consent of counsel for the

EEOC would violate Nebraska’s ethical rules [prohibiting communication with a represented

party].”); Bauman v. Jacobs Suchard, Inc., 136 F.R.D. 460, 461–62 (N.D. Ill. 1990) (“While there

does not appear to be any formal attorney-client relationship, the EEOC, through its attorneys, are

essentially acting as de facto counsel for the employees. There is no sound reason why employers

in such cases should have available the protection of the attorney-client privilege whereas

employees would not. Communications between the EEOC attorneys and the employees

represented in ADEA cases brought by the EEOC are privileged.” (citation omitted)). The Court

finds the reasoning of these cases persuasive.

Enterprise cites caselaw to support its position that there is no attorney-client relationship

between the EEOC and the claimants and potential claimants. The cases on which Enterprise relies

are distinguishable or are otherwise unpersuasive.

Enterprise cites various cases brought under laws other than the ADEA, such as

discrimination cases brought under Title VII of the Civil Rights Act of 1964. See Serrano v. Cintas

Corp., No. 04-40132, 2010 WL 746430 (E.D. Mich. Mar. 2, 2010) (Title VII case); U.S. E.E.O.C.

v. ABM Indus. Inc., 261 F.R.D. 503 (E.D. Cal. 2009) (Title VII case); E.E.O.C. v. CRST Van

Expedited, Inc., No. C07-0095, 2009 WL 136025 (N.D. Iowa Jan. 20, 2009) (Title VII case);

E.E.O.C. v. Collegeville/Imagineering Ent., No. CV-05-3033, 2007 WL 158735 (D. Ariz. Jan. 17,

2007) (Title VII case); E.E.O.C. v. Albertson’s Inc., No. 06-CV-01273, 2006 WL 8460350 (D.

Colo. Oct. 4, 2006) (Title VII case). Cases brought under laws other than the ADEA are

distinguishable because those other laws do not have the same “distinctive enforcement scheme”

as does the ADEA—the termination of an individual’s right to sue once the EEOC brings an ADEA

enforcement action. See U.S. Steel Corp., 921 F.2d at 494 & n.4 (explaining that “[t]he

enforcement scheme of Title VII of the Civil Rights Act of 1964, from which the framers of the

ADEA consciously departed, has no similar feature” (citation omitted)); Nebco, 1997 WL 416423,

at *4 (“Unlike the Title VII enforcement provisions, under the ADEA, the right of an individual

to bring a private action ‘shall terminate upon the commencement of an action by the Equal

Employment Opportunity Commission to enforce the right of such employee under this chapter.’”

(quoting 29 U.S.C. § 626(c)(1))); see also E.E.O.C. v. SVT, LLC, 297 F.R.D. 336, 341–42 (N.D.

Ind. 2014) (case brought under Title VII contrasting ADEA caselaw because, “in a Title VII case

brought under § 2000e–5(f), the right of the individual to bring a private action does not terminate

with an EEOC lawsuit, and, thus, the relationship between the EEOC and potential class members

is not the same as in an ADEA case”). It is this termination of an individual’s right to sue under

the ADEA that shows that the EEOC serves as the individual’s representative. U.S. Steel Corp.,

921 F.2d at 494–95; Bauman, 136 F.R.D. at 461–62. The cases brought under laws other than the

ADEA are not persuasive to show that no attorney-client relationship exists.

Enterprise also cites to Gorman v. Brown-Forman Corp., an ADEA case in which a court

ruled that the EEOC did not have an attorney-client relationship with claimants. 133 F.R.D. 50,

52–53 (M.D. Fla. 1990) (leaving open the possibility that an attorney-client relationship could

exist if a particular claimant expressly asserted a desire to have the EEOC’s counsel render

confidential legal advice). In so ruling, the court relied on Title VII cases, stating that “the only

cases found which touch on the issue hold that with regard to individuals named in the complaint,

the EEOC is not in an attorney-client relationship with the aggrieved employee.” Id. at 52 (citing

two Title VII cases). The court found “no reason to treat enforcement actions brought by the

EEOC under the Age Discrimination in Employment Act (ADEA) any differently than the sex

discrimination actions cited above with regard to whether the EEOC acts as legal counsel for

aggrieved individuals in an enforcement action.” Id. at 53 (reasoning that “[b]oth Title VII and

the ADEA provide for EEOC enforcement actions in addition to individual suits brought in the

employee’s own behalf or for others similarly situated”). The court did not address the fact that

the EEOC’s initiation of an ADEA enforcement action terminates an individual’s right to sue, a

distinctive feature not found under Title VII. As already stated, it is this feature that demonstrates

the existence of an attorney-client relationship. The caselaw that supports the existence of an

attorney-client relationship is better reasoned than Gorman.

Enterprise also cites two additional ADEA cases that could support a proposition that no

attorney-client relationship exists, however both cases also relied on non-ADEA caselaw to reach

their rulings. See U.S. E.E.O.C. v. Republic Servs., Inc., No. 204CV-01352, 2007 WL 465446,

at *2 (D. Nev. Feb. 8, 2007) (citing cases brought under Title VII and the Americans with

Disabilities Act to support a proposition that individuals must take an affirmative step to enter into

a relationship with the EEOC for an attorney-client relationship to exist); E.E.O.C. v. McDonnell

Douglas Corp., 948 F. Supp. 54, 55 (E.D. Mo. 1996) (citing a Title VII case for the proposition

that the EEOC does not sue in a representative capacity). As these cases likewise did not address

the fact that the EEOC’s initiation of an ADEA enforcement action terminates an individual’s right

to sue, the Court does not find them persuasive.

Enterprise argues that, even if an attorney-client relationship can exist between the EEOC

and an ADEA claimant, it does not exist before the claimant agrees to EEOC representation.

DE 51 at 1. However, an ADEA claimant does not agree, consent, or otherwise opt-in to EEOC

representation. E.E.O.C. v. City of Chi., No. 85 C 8327, 1987 WL 15388, at *2 (N.D. Ill. Aug. 3,

1987) (“In a suit brought by the EEOC to enforce the ADEA, the individual claimants need not

consent to be joined as party plaintiffs or to be represented by the EEOC.”); E.E.O.C. v. Chrysler

Corp., No. 81-72347, 1982 WL 406, at *3 (E.D. Mich. Sept. 3, 1982) (holding that, “in a suit

brought by the EEOC to enforce the ADEA, the individual claimants need not consent to be joined

as party plaintiffs in this suit or to be represented by the EEOC”). The existence of an

attorney-client relationship does not depend on whether an ADEA claimant agrees to

representation.

Enterprise also argues that, even if an attorney-client relationship can exist between the

EEOC and an ADEA claimant, it ceases to exist if the claimant “decline[s] to participate” in the

ADEA enforcement action. DE 51 at 2. In E.E.O.C. v. Johnson & Higgins, Inc., ADEA claimants

initially opposed an EEOC enforcement action before switching sides to support the EEOC. 1998

WL 778369, at *1. In evaluating whether certain documents and communications were privileged,

the court ruled that the attorney-client privilege did not apply while the claimants opposed the

EEOC, but the privilege did apply after the claimants joined the side of the EEOC. Id. at *5–6

(reviewing affidavits from the claimants that reflected when each claimant considered EEOC

counsel to be his attorney).

Here, neither party has presented the Court with any claimant who “declined to participate”

in this lawsuit, if such a claimant exists. The Court is uncertain whether Enterprise’s use of the

phrase “declined to participate” refers to merely failing to respond to an EEOC communication,

outright opposition to the EEOC’s lawsuit such as in Johnson, or something in between. Absent

knowledge of specific facts relating to a particular claimant, the Court will not compel the EEOC

to produce its communications with claimants who may have “declined to participate.”

The Court concludes that the attorney-client privilege applies to the EEOC’s

communications with the claimants and potential claimants in this lawsuit. Neither party has

presented the Court with facts from which to conclude that the attorney-client relationship ended

or that the attorney-client privilege was waived with respect to a particular claimant.

Finally, Enterprise asks the Court to compel the EEOC to produce facts it gathered from

the claimants, as the attorney-client privilege does not protect facts. DE 51 at 3; see Slep-Tone

Ent. Corp. v. Johnson, 518 F. App’x 815, 821 (11th Cir. 2013) (“The attorney-client privilege,

however, protects only disclosure of communications; it does not protect disclosure of the

underlying facts by those who communicated with the attorney.” (quotation marks omitted)).

However, Enterprise has not identified the “facts” it would have the EEOC produce short of the

entire content of communications with claimants. The Court notes that the interrogatory that

Enterprise cites as being at issue, Interrogatory No. 11, asked the EEOC to provide the “substance”

of its communications with claimants. DE 51-1 at 9. Further, the EEOC has agreed to identify all

claimants and to provide a brief description of their knowledge relevant to this case. DE 61-1 at

1–2. The Court will not compel a greater production of information. Enterprise’s Motion to

Compel Claimant Information is denied.

V. The EEOC’s Motion to Compel Complete Responses [DE 65]

The EEOC breaks its Motion to Compel into five topics, and the Court addresses each topic

in turn.

A. Documents Within Enterprise’s Control Regarding Enterprise Holdings

Under the first topic in the EEOC’s Motion to Compel, the EEOC seeks to compel

Enterprise to fully respond to Request for Production Nos. 6—7, 9, 11, 20-21, 28, and 36-39. The

parties’ primary dispute under this topic is Enterprise’s discovery obligation to produce documents

within its possession, custody, and control. This dispute arises through Enterprise’s objection to

the following definitional paragraph in the EEOC’s Requests for Production:

B. “You”, “your” or “Defendant” means Enterprise Leasing Company of Florida, LLC

(“Enterprise”), its past and present employees, supervisors, and managers, as well as its agents,

admuustrators, subsidiaries, affiliates, corporate parents, successors, officers, directors,

consultants, representatives, attorneys, and any other person acting or purporting to act on its

behalf or under its control.

DE 65-1 at 3. Enterprise objected to this definition as follows:

1. Enterprise objects to the definition of “You,” “your,” and “Defendant” to the extent

it purports to include any corporate entity other than Enterprise Leasing Company of Florida, LLC

or its employees. Enterprise will produce documents only in its own possession, custody, or

control. Enterprise further objects to the definition of “You,” “your,” and “Defendant” to the

extent it purports to seek documents, including attorney work product, in the possession, custody,

or control of outside counsel.

DE 65-2 at 2.

A party may serve on another party a request “to produce and permit the requesting party

or its representative to inspect, copy, test, or sample [certain] items in the responding party’s

possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). “Whether documents are in a [party’s]

control under Rule 34 is broadly construed.” Costa v. Kerzner Int’l Resorts, Inc., 277 F.R.D. 468,

16

470 (S.D. Fla. 2011). Control includes “the legal right to obtain the documents requested upon

demand.” Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984); see also Costa, 227 F.R.D. at

471 (explaining that control “does not require that a party have legal ownership or actual physical

possession of the documents at issue; indeed, documents have been considered to be under a

party’s control (for discovery purposes) when that party has the right, authority, or practical ability

to obtain the materials sought on demand” (quotation marks omitted)).

Enterprise Holdings, Inc. (“EHI”) is Enterprise’s parent company and is not a party to this

lawsuit. However, if the EEOC’s Requests for Production seek documents from EHI or any other

individual or entity and those documents are within Enterprise’s possession, custody, or control as

those terms are defined under the law, Enterprise must produce them unless it raised a valid

objection.4 To the extent that Enterprise objects to producing documents that are outside of its

possession, custody, or control as those terms are defined under the law, Enterprise’s objections

are sustained.

In its response to the EEOC’s Motion to Compel, Enterprise objects to producing certain

EHI documents on the bases of relevancy and disproportionality. DE 73 at 1. But Enterprise did

not object on those bases in its responses to the EEOC’s Requests for Production. Consequently,

Enterprise waived those objections. See Fed. R. Civ. P. 34(b)(2)(B) (“For each item or category,

the response must either state that inspection and related activities will be permitted as requested

or state with specificity the grounds for objecting to the request, including the reasons.”); Southern

District of Florida Local Rule 26.1(e)(2)(A) (“Any ground not stated in an objection within the

time provided by the Federal Rules of Civil Procedure, or any extensions thereof, shall be

waived.”).

4 Enterprise does not argue that EHI documents are not within Enterprise’s possession, custody, or control as those

terms are defined under the law.

For completeness, the Court will address Enterprise’s remaining objections in its responses

to the Requests for Production that are at issue (Request for Production Nos. 6–7, 9, 11, 20–21,

28, and 36–39). Enterprise does not object to Request for Production Nos. 6–7 and 9. DE 65-2 at

8–9.

Enterprise objects to Request for Production Nos. 11, 20–21, and 38–39 based on

overbreadth and/or disproportionality because the requests “seek[] ‘all’ responsive documents.”

Id. at 10, 14–15, 22–23. These objections are overruled because they lack any specificity. See Fed.

R. Civ. P. 34(b)(2)(B) (requiring the grounds for objections to be stated with specificity); Southern

District of Florida Local Rule 26.1(e)(2)(A) (same). Similarly, Enterprise’s objection that Request

for Production No. 21 is “potentially overbroad” is overruled for lacking any specificity. DE 65-2

at 15.

Enterprise makes vagueness and ambiguity objections to Request for Production Nos. 20–

21 and 36–37. Id. at 14–15, 21–22. During the March 15 hearing, Enterprise admitted that it did

not comply with the Order Setting Discovery Procedures before it made these objections.

See DE 38 at 4 (Order Setting Discovery Procedures requiring, “If a party believes that a request

or a term is vague, that party shall attempt to obtain clarification from opposing counsel prior to

objecting on the ground of vagueness.”). Further, Enterprise stated during the hearing that it is not

withholding any documents on the bases of vagueness and ambiguity. Enterprise’s vagueness and

ambiguity objections are overruled.

Enterprise objects to Request for Production No. 20 based on the attorney-client privilege

and work product protection. DE 65-2 at 14. Responsive documents for which Enterprise claims

a privilege or work product protection must be logged in a privilege log that complies with the

Federal Rules of Civil Procedure and the Local Rules. See Fed. R. Civ. P. 26(b)(5)(A); Southern

District of Florida Local Rule 26.1(e)(2)(B). The Court will not rule on these objections at this

juncture, as the Court has not reviewed the purportedly privileged and protected documents.

Enterprise objects to Request for Production Nos. 28 and 38–39 based on relevance,

overbreadth, and disproportionality because they seek recruiting and hiring documentation that is

not limited to recruiting and hiring management trainees. DE 65-2 at 17, 22–23. These objections

are sustained insofar as the Court narrows Request for Production No. 28 to seek “All

documentation related to recruiting management trainees according to the university recruitment

strategy . . . .” The Court narrows Request for Production No. 38 to seek “All documents . . .

regarding recruiting, hiring, maintaining, or supervising athletes for management trainee

positions.” The Court narrows Request for Production No. 39 to seek “All documents . . . regarding

recruiting, hiring, maintaining, or supervising Baby Boomers, Millennials, Generation Y or Gen

Y, Generation Z, or Gen Alpha for management trainee positions.”

Finally, Enterprise objects to Request for Production Nos. 36–37 based on relevance,

overbreadth, and disproportionality because they seek “training materials not reasonably related

to the claim of age discrimination.” Id. at 21–22. As Request for Production Nos. 36–37 are

tailored to training management trainees, Enterprise’s objections are overruled.

B. Applicant Data for Individuals who Self-Selected Out

Under the second topic in its Motion to Compel, the EEOC seeks to compel Enterprise to

respond to Request for Production Nos. 1–3. Enterprise did not object to Request for Production

No. 2, and therefore Enterprise must fully respond to that request. Id. at 5–6.

Request for Production Nos. 1 and 3 respectively seek “An electronic database (i.e., Excel

file) identifying all individuals who submitted an application, either directly or indirectly, to

Defendant for the position of Management Trainee for the time period January 1, 2019, to

December 31, 2023 . . .” and “All data/documents submitted by any person who applied for the

Management Trainee position throughout all of Enterprise’s divisions from January 1, 2019 to

December 31, 2023 . . . .” Id. at 4, 6. Enterprise objects to Request for Production Nos. 1 and 3

to the extent they seek production of data concerning applicants who did not meet minimum

objective screening criteria such as possession of a valid driver’s license and applicants “who

self-selected out of consideration,” meaning that they did not report for a scheduled interview or

otherwise withdrew themselves from the application process. Id. at 4–6.

The EEOC does not ask the Court to compel Enterprise to produce data concerning

applicants who did not meet minimum objective screening criteria. Enterprise’s objection to

producing data concerning applicants who did not meet minimum objective screening criteria is

sustained.

Enterprise’s objection to producing data concerning applicants “who self-selected out of

consideration” is overruled. It is entirely plausible that applicants who encountered age

discrimination during the hiring process failed to report for an interview or otherwise withdrew

themselves from the application process, and those applicants are relevant and directly at issue in

this litigation.

C. Talent Acquisition Personnel Orientation Materials

Under the third topic in its Motion to Compel, the EEOC seeks to compel Enterprise to

fully respond to Request for Production No. 17, which asks for “All talent acquisition orientation

materials from 2018 to present.” Id. at 12. In the briefing and during the March 15 hearing, the

parties indicated that they are continuing to confer regarding this request. See DE 73 at 2–3; DE 74

at 2–3. Consequently, the Court reserves ruling on Enterprise’s objections to Request for

Production No. 17 at this time. The Court expects the parties to continue to confer in good faith

and will discuss Request for Production No. 17 with the parties during the upcoming discovery

hearing on April 10.

D. Complaints of Age Discrimination

Under the fourth topic in its Motion to Compel, the EEOC seeks to compel Enterprise to

fully respond to Request for Production No. 42. That request and Enterprise’s response state:

REQUEST NO. 42: All documents memorializing or describing any employee

complaints of age discrimination and any investigation into such complaints, including but not

limited to communications between the complainant and Enterprise, internal communications

regarding the complaint, investigation notes and documents, documents regarding the outcome of

the complaint and investigation, and all other documentation memorializing the complaint

process.

RESPONSE: Enterprise objects that this request is irrelevant, overbroad, and out of

proportion to the needs of the case to the extent it relates to complaints of age discrimination

unrelated to the Management Trainee program. Enterprise further objects to the extent this

request seeks documents covered by the attorney-client privilege or work product doctrine.

Enterprise will produce nonprivileged documents memorializing or describing complaints

of age discrimination in the Management Trainee program that are found in its possession,

custody, and control following a reasonably diligent search.

DE 65-2 at 24-25.

Enterprise’s objections based on relevance, overbreadth, and disproportionality are

overruled. Documentation relating to age discrimination complaints even outside of the

management trainee program is relevant to proving or disproving Enterprise’s affirmative defense

that it “did not engage in any form of intentional or willful discrimination, nor did it act with a

discriminatory purpose, but rather acted in good faith to comply with the ADEA,” and the

documentation is proportional to the needs of this case. DE 43 at 7; see 29 U.S.C. § 626(b)

(providing for liquidated damages “only in cases of willful violations” of the ADEA).

21

As for Enterprise’s objections based on the attorney-client privilege and work product

protection, responsive documents for which Enterprise claims a privilege or work product

protection must be logged in a privilege log that complies with the Federal Rules of Civil Procedure

and the Local Rules. See Fed. R. Civ. P. 26(b)(5)(A); Southern District of Florida Local Rule

26.1(e)(2)(B). The Court will not rule on these objections at this juncture, as the Court has not

reviewed the purportedly privileged and protected documents.

E. Dates for Production

Under the fifth and final topic in its Motion to Compel, the EEOC requests that Enterprise

complete its rolling production of documents by April 28, 2024. As Enterprise did not propose a

deadline to complete its production in the briefing, the Court questioned Enterprise on this topic

during the March 15 hearing. Enterprise was unwilling to propose any deadline to complete its

production. The Court understands that the parties intended to confer about custodians and

additional discovery matters during the week of March 18, and the Court expects the parties to

continue to confer in good faith. The Court reserves ruling on a deadline for Enterprise to complete

production at this time. The Court will discuss this matter with the parties during the upcoming

discovery hearing on April 10, when they will have had the benefit of additional conferral and the

rulings in this Order. The Court intends to set a deadline for Enterprise to complete its production

if the parties cannot agree on the matter.

VI. Conclusion

Based on the foregoing, Enterprise’s Motion to Compel EEOC Statistical Analysis

[DE 45], Motion to Compel Conciliation-Related Documents [DE 46], and Motion to Compel

Claimant Information [DE 51] are DENIED. The EEOC’s Motion to Compel Complete

Responses to First Request for Production [DE 65] is GRANTED IN PART, DENIED IN PART,

AND RESERVED IN PART. The Court will discuss the issues on which it has reserved ruling—

Enterprise’s response to Request for Production No. 17 and a deadline for Enterprise to complete

its production of documents—during the upcoming discovery hearing on April 10.

DONE AND ORDERED in Chambers at Fort Lauderdale, Florida, this 21st day of March,

2024.

6 TA AUGUSTIN-BIRCH

UNITED STATES MAGISTRATE JUDGE

23