No Routine Depositions of EEOC Investigators

Plaintiff Tracinda Frank sought to depose EEOC Investigator Ian Steele and obtain his interview notes pertaining to an EEOC charge. Ms. Frank had sued the school  district for alleged discrimination.  The EEOC was not a party and it successfully moved to quash the subpoena. Frank v. San Francisco Unified School District, 2026 WL 2032980 (N.D. Cal. Jul. 14, 2026).

This post focuses on the deposition, not the deliberative process privilege relating to documents. The EEOC asserted that a deposition of Steele would be unduly burdensome and disclose privileged information. “Plaintiff counters that she should be permitted to depose Investigator Steele to obtain factual information of which she has substantial need because Investigator Steele ‘is the only neutral, non-party witness who heard what the District’s managers said about Plaintiff’s accommodation requests before this litigation gave them a reason to shade their accounts.’”

Relying on  Leyh v. Modicon, Inc., 881 F. Supp. 420 (S.D. Ind. 1995), the Frank court wrote that parties in employment cases should not be able to depose EEOC investigators “as a matter of course.” Quoting Leyh, it wrote:

… [D]epositions [of EEOC investigators] should not become a routine method to find a short-cut to evidence or to being given pre-packaged cases. It is beyond the scope of this case to catalog the exceptional circumstances that might warrant such discovery, but there are no such exceptional circumstances here. While such depositions might save private litigants some time and money, there is a larger public interest here. The EEOC has plenty of work to do investigating new complaints, and its principal responsibility is to serve the public as a whole, not to work for the benefit of particular litigants. Accordingly, the court finds under Rule 26(b)(2) that plaintiff should not be permitted to depose Murdock on the facts that he turned up in his investigation of plaintiff’s claims. The underlying facts relating to her claims are matters that are obtainable from other sources that are more convenient and less burdensome to the public interests at stake here. The possibility that the investigator might testify about admissions by the opposing party would be present in any case and is not sufficient to outweigh the burden of subjecting the EEOC to depositions of its investigators as a matter of course. [emphasis added].

After citing a number of other authorities, the Frank court ruled:

The Court reaches the same result here. In particular, it finds that deposition of Investigator Steele is unlikely to turn up any information that is not already in Plaintiff’s possession or cannot be obtained through discovery from the witnesses themselves. Given the EEOC’s heavy caseload and the burden that will be imposed on it by requiring its investigators to undergo depositions (and potentially testify at trial) under circumstances such the ones here, Plaintiff has not demonstrated that her need to depose Investigator Steele outweighs the burden of complying with the Deposition Subpoena under Rule 26(b)(1). The Court further finds that the deposition of Investigator Steele is “unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive” under Rule 26(b)(2)(C)(i).

The court wrote that, “[a]ccording to the EEOC, ‘[i]n fiscal year 2025, the EEOC’s limited staff responded to nearly 270,000 inquiries, up almost 9% from fiscal year 2024; and processed 88,201 new discrimination charges.’”