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M.D.Ga.: DOL Properly Invoked the “Government Informer Privilege” Where Defendants Sought Identities of Witnesses Who Cooperated in Pre-Suit DOL Investigation
Solis v. New China Buffet No. 8, Inc.
This case was before the court on defendants’ motion to compel the DOL (“DOL” or “Plaintiff”) to provide complete answers to discovery requests. Specifically, Defendants sought information relating to the DOL’s investigation (prior to the filing of the lawsuit) of this Fair Labor Standards Act (“FLSA”) case, particularly the identities of any employees that gave statements to the DOL, the contents of those statements, and the contents of the investigative file. The DOL refused to provide that information based on the informer’s privilege. The court upheld the DOL’s refusal based on the investigation privilege. However, the court ordered the DOL to provide the full contact information for all witnesses disclosed by the DOL in their Rule 26 disclosures.
The court boiled Defendants’ arguments down as follows:
“Defendants mount two arguments against Plaintiff’s refusal to disclose the requested information and documents. First, they argue that Plaintiff has not properly invoked the informer’s privilege. Second, they argue that the informer’s privilege should not protect the information they are seeking.”
Rejecting the Defendants’ first contention, that the DOL had not properly invoked the privilege, the court explained:
“Plaintiff properly invoked the informer’s privilege in this case. In response to Defendants’ Motion to Compel, Plaintiff produced a declaration from Acting Wage and Hour Administrator Nancy J. Leppink . In her declaration, Administrator Leppink stated that she had personally reviewed the relevant parts of the investigation file, including information withheld or redacted. [Doc. 34–1 ¶ 8]. She went on to the state that the Secretary of Labor objected to the production of the requested documents and identifying information because it was protected from disclosure pursuant to the informant’s privilege. [Id. ¶ 11]. She then “invoke[d] the informant’s privilege to protect from disclosure the identities, and any statements and other documents, or portions thereof, which could reveal the identifies, of persons who have provided information to the U.S. Department of Labor in the instant case.” [Id. ¶ 12].”
Turning to the applicability of the informer privilege to the case at bar, the court held that the discovery sought was properly the subject of the privilege. Describing the nature and purpose of the informer privilege, the court explained:
“What courts have termed the “informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.” Rovario v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957). The privilege protects “employees with legitimate complaints, exercising their constitutional and statutory right to present their grievances to the government.” Brennan v. Engineered Prods. Inc., 506 F.2d 299, 302 (8th Cir.1974). “The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement.” Rovario, 353 U.S. at 59, 77 S.Ct. at 627. The government may invoke the privilege “to conceal the names of employees who precipitated the suit by filing complaints with the Department of Labor.” Does I thru XXIII v. Advanced Textile Corp. ., 214 F.3d 1058, 1072 (9th Cir.2000). The privilege “applies whether the [Department of Labor] solicited statements from an employee or the employee made a complaint to the [ Department of Labor].” Martin v. New York City Transit Auth., 148 F.R.D. 56, 63 (E.D.N.Y.1993) (citing Dole v. Local 1942, International Bhd. of Elec. Workers, AFL–CIO, 870 F.2d 368, 370–71 (7th Cir.1989)). The privilege applies to both current and former employees of a company whose workers have communicated with the Department of Labor. Hodgson v. Charles Martin Inspectors of Petroleum, Inc., 459 F.2d 303, 305–06 (5th Cir.1972).
The informer’s privilege is not absolute. Its scope is “limited by the underlying purpose of the privilege as balanced against the fundamental requirements of fairness and disclosure in the litigation process.” Charles Martin, 459 F.2d at 305. If the “disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged.” Rovario, 353 U.S. at 60, 77 S.Ct. at 627. Generally, in questions involving the privilege, “the interests to be balanced … are the public’s interest in efficient enforcement of the Act, the informer’s right to be protected against possible retaliation, and the defendant’s need to prepare for trial.” Charles Martin, 459 F.2d at 305. The defendant’s need for certain information is generally less weighty during the discovery phase, as opposed to the pre-trial stage of the proceedings. See id. at 307, Brennan, 506 F.2d at 303.”
The court then held that the privilege was indeed applicable here. In so doing, the court rejected Defendants’ argument that it would be inefficient to depose all 48 witnesses disclosed by the DOL, and questioned Defendants’ base assertion that they needed to know who participated investigation:
“The Defendants’ need to depose all forty-eight former employees listed in Appendix A, or even only those who provided statements, in order to adequately prepare a defense appears far from pressing. The relevance of the identity of informers in a FLSA case is often questionable. See Chao v. Westside Drywall, Inc., 254 F.R.D. 651, 660 (D.Or.2009) (noting that “the names of informers are [often] irrelevant to whether the employer properly paid its employees and otherwise complied with the Act’s requirements”). Defendants have failed to make any showing that this case is outside the normal situation wherein a defendant has access to information and its own witnesses regarding its wage and record keeping practices, and the identity of informers is largely irrelevant. In any event, courts have generally found that the cost and inconvenience that Defendants seek to avoid does not tip the balance in favor of disclosure. See Charles Martin, 459 F.2d at 307 (“[T]hat depositions would be expensive show that the statements would facilitate defendant’s investigation but such facilitation is not a requirement for fundamental fairness to the defendant.”); Brennan, 506 F.2d at 303 & n. 3 (noting that at the discovery stage defendant was entitled to know “the charges, dates, names of underpaid employees, and names of those persons known to the plaintiff who had information concerning the issues” and that defendant had the ability to depose nineteen workers listed as possessing such information).”
For these reasons, the court upheld the application of the informer privilege. However, because the DOL had disclosed the names of the witnesses at issue, among the 48 witnesses on their Rule 26 disclosures, the court held Defendants were entitled to their contact information, notwithstanding the fact that the DOL did not have to identify whom of the 48 witnesses had given statements in the pre-suit investigation.
While this case is of limited usefulness to private practitioners, it does give an interesting analysis into a privilege that seems to be litigated more and more, with the DOL getting more active in litigating cases.
Click Solis v. New China Buffet No. 8, Inc. to read the entire Order on Defendants’ Motion to Compel.