United States District Court, D. Arizona
Honorable G. Murray Snow United States District Judge
before the Court is Respondent's motion to deny
Petitioner's subpoena as unduly burdensome, (Doc. 64),
and Petitioner's motion to strike, (Doc.
For the reasons stated below, the Court denies the motion.
Ochoa worked for eight years at Petitioner McLane Co., a
grocery supply-chain services company. Because jobs like Ms.
Ochoa's are physically demanding, McLane requires new and
returning employees to undergo a physical examination (called
the Physical Capability Exam, or “PCE”) that
tests range of motion and strength. A third party contractor
named Industrial Physical Capability Services, Inc.
(“IPCS”) administers the PCE. Ms. Ochoa left work
for pregnancy leave, and when she returned three months
later, she failed the PCE three times. McLane terminated her
employment. Ms. Ochoa then filed a complaint with the EEOC,
and the EEOC initiated an investigation of McLane for
of its investigation, the EEOC issued a subpoena requiring
McLane to provide information about the administration of the
IPCS PCE. The requested information included pedigree
information, such as the name, gender, date of birth, social
security number and contact information for every person who
took the test, along with the reason the person took the
test, the person's score on the test, and any adverse
action that McLane took based on the person's performance
on the test. McLane objected to the request as overly broad,
unduly burdensome, and irrelevant to the underlying charge.
Court previously required McLane to provide information about
test takers' gender, test score, test date, position,
required score for position, and whether the applicant
suffered an adverse employment action with ninety days of the
test. The Court did not require McLane to provide pedigree
information, ruling that such information was not relevant to
the charge of discrimination. After a series of appeals, the
Ninth Circuit reversed the Court's decision and held that
the pedigree information is relevant to the EEOC's
investigation. EEOC v. McLane Co., Inc., 857 F.3d
813, 816-17 (9th Cir. 2017). The Ninth Circuit directed that
“[o]n remand, McLane is free to renew its argument that
the EEOC's request for pedigree information is unduly
burdensome[, ]” and “the district court should
also resolve whether producing a second category of evidence-
the reasons test takers were terminated-would be unduly
burdensome to McLane.” Id. at 817.
scope of judicial review over an EEOC request for information
is narrow. EEOC v. McLane Co., Inc., 857 F.3d 813,
816-17 (9th Cir. 2017). As this Court has previously noted,
reviewing the validity of an administrative subpoena requires
a three-part inquiry: “(1) whether Congress has granted
the authority to investigate; (2) whether procedural
requirements have been followed; and (3) whether the evidence
is relevant and material to the investigation.”
Id. (quoting E.E.O.C. v. Children's Hosp.
Med. Ctr., 719 F.2d 1426, 1430 (9th Cir.1983)). When the
EEOC has demonstrated that those conditions are met (as it
has here), a court must enforce the subpoena unless the
respondent “shows that the subpoena is overbroad or
that compliance would be unduly burdensome.”
Id. The “investigatory powers of the EEOC
should be interpreted broadly, ” but an administrative
subpoena “cannot be so broadly stated as to constitute
a ‘fishing expedition.'” E.E.O.C. v.
K-Mart Corp., 694 F.2d 1055, 1066 (6th Cir.1982).
However, the respondent's burden of proving that an
administrative subpoena is overbroad or unduly burdensome
“is difficult to meet.” E.E.O.C. v. Aaron
Bros. Inc., 620 F.Supp.2d 1102, 1106 (C.D. Cal. 2009)
(citing E.E.O.C. v. Maryland Cup Corp., 785 F.2d
471, 479 (4th Cir.1986); E.E.O.C. v. United Air Lines,
Inc., 287 F.3d 643, 654 (7th Cir. 2002)).
the Ninth Circuit nor the Supreme Court has defined
“unduly burdensome” in the context of an EEOC
subpoena enforcement request. In line with other districts in
the Ninth Circuit, this Court has previously adopted the
approach of the Fourth and Seventh Circuits that a subpoena
may be unduly burdensome if the cost to the respondent is
significant compared to its resources. E.E.O.C. v. McLane
Co., Inc., 2012 WL 5868959 (D. Ariz. Nov. 19, 2012);
see also E.E.O.C. v. Bashas', Inc., 828
F.Supp.2d 1056, 1070-1071 (D. Ariz. 2011). More specifically,
a subpoena is unduly burdensome if either “the cost of
gathering this information is unduly burdensome in the light
of the company's normal operating costs, ” or
“gathering the information would threaten [a
respondent's] normal business operations.”
E.E.O.C. v. Maryland Cup Corp., 785 F.2d 471, 479
(4th Cir.1986). Moreover, “[i]f the personnel or
financial burden on the employer is great compared to the
resources the employer has at its disposal, the district
court should attempt to alleviate this burden.”
E.E.O.C. v. United Air Lines, Inc., 287 F.3d 643,
654 (7th Cir.2002).
the administrative subpoena may not be used to threaten a
company's normal business operations, the EEOC does not
have free reign to impose significant costs for information
of minor significance as long as the targeted company's
operating budget is large enough. See E.E.O.C. v. VF
Jeanswear, LP, 2017 WL 2861182 at *6 (D. Ariz. July 5,
2017) (citing E.E.O.C. v. Royal Caribbean Cruises,
Ltd., 771 F.3d 757, 763 (11th Cir. 2014); E.E.O.C.
v. Ford Motor Credit Co., 26 F.3d 44, 47 (6th Cir.
1994)). “[T]he decision whether a subpoena is overly
burdensome turns on the nature of the materials sought and
the difficulty the employer will face in producing
them.” McLane Co., Inc. v. E.E.O.C., 137 S.Ct.
1159, 1168 (2017). The Eleventh Circuit's approach
considers multiple factors, including balancing hardships and
benefits of administrative subpoenas. E.E.O.C. v. Royal
Caribbean Cruises, Ltd., 771 F.3d 757, 763 (11th Cir.
2014). The Sixth Circuit “weigh[s] the likely relevance
of the requested material to the investigation against the
burden to [respondent] of producing the material.”
E.E.O.C. v. Ford Motor Credit Co., 26 F.3d 44, 47
(6th Cir. 1994).
inquiries are not amenable to a rigid rule, but
“rather, they are the kind of ‘fact-intensive,
close calls' better suited to resolution by the district
court . . . .” McLane Co., Inc. v. E.E.O.C.,
137 S.Ct. 1159, 1168 (2017) (quoting Cooter & Gell v.
Hartmax Corp., 496 U.S. 384, 404 (1990)); see also
E.E.O.C. v. United Air Lines, Inc., 287 F.3d 643, 654
(7th Cir.2002) (“What is unduly burdensome depends on
the particular facts of each case and no hard and fast rule
can be applied to resolve the question”) (citation
omitted). The Fourth and Seventh Circuit's approach of
balancing the cost of production against the resources of the
company is not mutually exclusive of the Sixth and Eleventh
Circuit's approach of balancing the cost of production
against the relevance of the requested materials, and the
Court will consider all applicable facts in its query.
Notwithstanding respondent's ability to defeat the
subpoena as unduly burdensome, under any approach, the scope
of the Court's review remains narrow, and the
respondent's burden remains “difficult to
meet.” E.E.O.C. v. McLane Co., Inc., 857 F.3d
813, 816-17 (9th Cir. 2017); E.E.O.C. v. Aaron Bros.
Inc., 620 F.Supp.2d 1102, 1106 (C.D. Cal. 2009)
parties argue whether production of two separate
requests-pedigree information, and the reason why PCE test
takers were terminated-would be unduly ...