Things should be interesting in St. Paul on Wednesday when my former partner, Magistrate Judge Janie Mayeron, hears a discovery motion in a sex discrimination case brought against frozen-food company Schwan’s by a former employee, Kim Milliren. 

Milliren was accepted into a Schwan’s manager training program intended to prepare her for a position overseeing one of the company’s 500 depots — one of only two women at the time to fill such positions.  Unhappy with how she was treated,  she complained to senior managers about inappropriate e-mails sent by a senior vice president, sexually derogatory comments and a manager’s assessment that it would be inappropriate to hire a woman if it meant she left three children at home.  (Note to self:  never justify failing to hire a woman by suggesting that it would be unfair to her young children!)

Milliren filed a complaint with the EEOC in June 2007 alleging that she had been harassed by managers and then demoted for complaining about it.   As part of its investigative process, the EEOC has subpoenaed additional information, including a list of all 600 company general managers, along with their gender and date of hire, as well as a listing of all employees who have completed the general manager training program since January 2006.  The company has refused to turn over this information, arguing that it was irrelevant, overly burdensome, and “an impermissible abuse of [the EEOC's] investigative authority.”

The EEOC’s response was clever, if not exactly legally on point: “As the ‘largest home delivery frozen food company in the United States,’ [Schwan's] has clearly mastered the logistical challenge of millions of customer orders and delivering a cornucopia of frozen food products to America’s doorstep. It is therefore inconceivable that [Schwan's] cannot respond to the EEOC’s three simple requests in subpoena.”  The question is so much whether the company can respond, as whether the information sought is relevant.

This appears to be a routine discovery dispute between two parties, except that the EEOC has been granted very broad subpoena power by Congress, and almost always wins subpoena battles.  If I were a betting man, I would wager that Judge Mayeron will give the EEOC most of what its looking for here, albeit under the protection of a protective order to ensure that personal information about other Schwan’s employees does not become public.

discovery disputes, EEOC, Schwan's