help Dr. Bursztajn with computer issues and the off-camera presence in the room of thetranscriptionist listening to the audio feed to record the true/false answers constitutedtwo clear violations of the court's “unambiguous” order that “attendees at theexamination are limited to Mr. Lescault and Dr. Bursztajn.” Id. at *11. The EEOCcontended that the defendant should be sanctioned by exclusion of both theexamination report and all testimony based on the examination. Id. The court ruled thatDr. Bursztajn acted consistently with his reasonable interpretation of the court's order,as well as with his professional opinion regarding best practice for performing the courtordered examination, and particularly for ensuring the accuracy of the subject's testanswers. Id. at *12. The court noted that there could have been some confusion as toits order, and that any confusion could be addressed through testimony at trial. Forthese reasons, the court denied the EEOC’s motion for sanctions.EEOC v. Activision Blizzard, Inc., 2022 U.S. Dist. LEXIS 108166 (C.D. Cal. June 3,2022), represented in many ways the most unusual procedural decision of 2022. TheCommission filed an action alleging that the defendant subjected female employees todiscrimination on the basis of their gender in violation of Title VII. The parties ultimatelysettled the matter, and the court approved the settlement and granted entry of a consentdecree. The California Department of Fair Employment and Housing (DFEH)subsequently moved to intervene for the purposes of appeal. The court previouslydenied the DFEH’s motion to intervene in the case for broader purposes. The DFEHdid not argue that the standard for intervention on appeal is different from the standardfor intervention prior to judgment or that the DFEH somehow has a greater interest inthe case on appeal for Rule 24 purposes than it had prior to judgment. Id. at *1-2.Instead, the DFEH argued that it should be allowed to intervene on appeal because theEEOC “lacks authority over the claims in the case,” “failed to comply with mandatorypre-suit conditions” under Title VII, and “failed to defer to DFEH's statutory rights” underCalifornia law. Id. at *2. The court found that there were no new arguments regardingreasons to permit intervention. For these reasons, the court denied the DFEH’s motionto intervene.In EEOC v. George Washington University, 2022 U.S. Dist. LEXIS 157848 (D.D.C.Sept. 1, 2022), the Commission filed an action on behalf of charging party SaraWilliams, a former athletics department executive assistant, alleging that the defendantfailed to promote her and gave her only menial jobs due to her sex in violation of TitleVII. The EEOC filed a motion to compel the defendant to produce documents relating toan internal investigation of discrimination filed with the defendant’s equal employmentopportunity office. The court denied the motion to compel. The EEOC contended thatthe documents sought were related to the discrimination claims at issue. Defendantcontended that the documents were subject to attorney-client privilege because theywere prepared at the direction of the defendant’s counsel and were either prepared byor sent to attorneys. The EEOC argued that the documents did not seek, contain, orreflect legal advice, nor were they created in anticipation of litigation at the direction ofcounsel. The court found that the documents were privileged as an attorney-clientcommunication, as the evidence was clear that obtaining legal advice was a “primarypurpose of the internal investigation and the documents from that investigation reflectedon the January 2022 Privilege Log.” Id. at *42. The court concluded that in addition to30© Duane Morris LLP 2023The EEOC Litigation Review – 2023
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