Hunton Employment & Labor Perspectives

The United States Supreme Court recently resolved a Circuit Court split on the appropriate standard of review of a District Court’s decision whether to enforce a subpoena issued by the Equal Employment Opportunity Commission (“EEOC”).  In McLane Co., Inc. v. Equal Employment Opportunity Commission, No. 15-1248, 581 U.S. __ (April 3, 2017), the Court held that such a decision should be reviewed only to determine whether the District Court abused its discretion – a deferential standard of review.  This conclusion was fairly uncontroversial.  Indeed, the abuse of discretion standard has long been used for review of decisions whether to enforce administrative subpoenas (such as those issued by the National Labor Relations Board). Historically, however, the Ninth Circuit alone has used a de novo standard of review in these circumstances, while the seven other U.S. Courts of Appeal to have addressed this issue all applied the more deferential standard.  The Ninth Circuit panel itself questioned why de novo review applied, in light of the substantial authority to the contrary, and the Supreme Court took the case to resolve this circuit split.

At issue in the case were subpoenas issued by the EEOC which instructed McLane Co. to produce, among other things, the names, Social Security numbers, addresses and telephone numbers (referred to in the case as “pedigree information”) of all McLane employees in one of the Company’s divisions nationwide, who, like the Charging Party, were required to undergo physical capability evaluations.  McLane voluntarily had produced general information about the evaluation and the individuals who were required to take it.  It identified test-takers by a unique number, but refused to provide the “pedigree information.”

The EEOC asked the U.S. District Court for the District of Arizona to enforce its subpoenas. The District Court sided with McLane Co. in part, ruling that the Company need not divulge the “pedigree information.”  The EEOC appealed to the Ninth Circuit on the issue of the “pedigree information.”  The Circuit Court, applying a de novo standard of review, essentially substituted its own interpretation of the record and the issues for that of the District Court, and concluded that the “pedigree information” should be produced.

The Supreme Court upheld the widely-used “abuse of discretion” standard in this context, assigning to the District Courts the responsibility for defining the overall parameters of relevance, while at the same time keeping in mind the “generous” goal of providing the EEOC access to material that might cast light on the allegations against the employer.  The District Courts, it noted, are in the best position to evaluate these “fact-intensive,” sometimes “close call” decisions, in which they must assess the relationship between the materials sought and the particular matter under investigation.  District Courts have considerable experience in such assessments, including their reviews of administrative subpoenas issued by the NLRB.

Now that reviewing courts uniformly will apply a deferential review standard to District Court decisions on enforcement of administrative subpoenas, companies faced with EEOC subpoenas may want to tailor their responses to the relevance-related rulings of the particular federal district court before which a subpoena enforcement action might be brought.  The recent changes to the federal discovery rules, with their emphasis on discovery that is proportionate to the issues in the case, should be helpful in crafting arguments which seek to limit the scope of such subpoenas in response to overly broad agency discovery requests.