Equal Employment Opportunity Commission v. Local 580

133 F.R.D. 445, 1990 U.S. Dist. LEXIS 16099, 55 Empl. Prac. Dec. (CCH) 40,553
CourtDistrict Court, S.D. New York
DecidedNovember 30, 1990
DocketNo. 71 Civ. 2877 (RLC)
StatusPublished

This text of 133 F.R.D. 445 (Equal Employment Opportunity Commission v. Local 580) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Equal Employment Opportunity Commission v. Local 580, 133 F.R.D. 445, 1990 U.S. Dist. LEXIS 16099, 55 Empl. Prac. Dec. (CCH) 40,553 (S.D.N.Y. 1990).

Opinion

ROBERT L. CARTER, District Judge.

BACKGROUND

Three years ago, in EEOC v. Local 580, 669 F.Supp. 606 (S.D.N.Y.1987) (Carter, J.), the court found defendants Local 580, International Association of Bridge, Structural and Ornamental Ironworkers (“Local 580”), and its Joint Apprentice-Journeyman Education Fund (“AJEF”) in contempt of court for non-compliance with provisions of the 1978 consent judgment between themselves and plaintiff Equal Employment Opportunity Commission (“EEOC”). The court issued an order on April 15, 1988 (corrected on May 13, 1988), permanently enjoining defendants from discriminating against minorities in the creation and operation of the apprenticeship program. See EEOC v. Local 580, 46 Empl.Prac.Dec. (CCH) ¶ 37,953 1988 WL 38515 (S.D.N.Y. Apr. 15, 1988) (Carter, J.). The order also provided for backpay hearings to be held to compensate those who could prove that defendants discriminated against them, imposed other remedial measures upon the defendants, and provided for the appointment of a Special Master to implement the relief ordered and to ensure defendants’ compliance with the consent judgment and the court’s order. See id.1

[447]*447By its order of October 19, 1988, the court appointed David Raff, Esq., as the Special Master, and granted him all the powers and authority set forth in the court’s order of April 15, 1988. The court directed him, inter alia, to investigate the defendants’ financial condition and to “report to the Court any recommendations he may have if there is a claim by defendants that any of the relief ordered by this Court cannot be carried out because of lack of funds.”

In response to defendants’ contentions that their poor financial condition rendered them incapable of fully meeting their court-ordered obligations, the EEOC conducted an initial review of defendants’ financial records and discovered that an entity related to Local 580, called the 501-507 West 42nd Street Realty Corporation (the “Realty Corporation”), owned the building in which the defendants leased office space. See Johnson Affidavit in Support of Motion to Enforce Subpoenas at 6. The EEOC also discovered that other entities related to Local 580—the Employee Benefit and Pension Benefit Funds of Local 580 (the “Local 580 Funds”)—leased offices in the same building. See id.

The EEOC therefore sought further discovery, through three subpoenas duces tecum, of documents' that it believed would shed light on defendants’ true financial condition. It served a subpoena upon the Realty Corporation, requesting documents concerning its formation, its purchase of the building in which the defendants and the Local 580 Funds leased office space, and the occupancy by the defendants and the Local 580 Funds of offices in that building. The EEOC also served a subpoena upon the administrator of the Local 580 Funds, requesting all leases and agreements concerning Local 580’s and the Local 580 Funds’ occupancy of offices in the building, documents pertaining to each of the Local 580 Funds’ affairs and transactions from June, 1978, onward, and copies of their audit reports and financial statements from June, 1978, onward. The third subpoena was served upon the accounting firm of Owen Peterson & Company, requesting copies of all audit reports that it had prepared from 1978 to 1988 for the Realty Corporation, the Local 580 Funds, and the AJEF, as well as the workpapers that it had used to prepare such reports.

In December, 1988, the EEOC moved to' enforce these subpoenas, and in January, 1989, the Realty Corporation and the Local 580 Funds (collectively the “non-parties”) moved to quash. At the October 13, 1989, hearing on these motions, the Special Master rendered a decision denying the EEOC’s motion, and granting the non-parties’ motion, with respect to the non-parties’ financial records from 1978 to 1983. See Transcript of Hearing of October 13, 1989, at 19. On February 12, 1990, the EEOC appealed the Special Master’s decision to the court, on the grounds that these financial records of the non-parties are “necessary to determine the true and accurate financial condition of the defendants.” See Plaintiff’s Notice of Appeal. The court remanded the matter to the Special Master, directing him to grant the EEOC’s motion. The Special Master thereafter issued an order vacating his decision of October 13, 1989, and granting the EEOC’s motion in all respects. See Order of the Special Master, March 23, 1990.

The defendants and the non-parties now move to vacate the Special Master’s order of March 23, 1990, and to dismiss the EEOC’s notice of appeal of February 12, 1990. The non-parties also request, in the event that the court denies the defendants’ and the non-parties’ motion to vacate, certification of the question pursuant to 28 U.S.C. § 1292(b) and a stay of production pending appeal.

DISCUSSION

Most of the defendants’ and the non-parties’ arguments in support of their motion stem from an erroneous application [448]*448of Rule 53(e)(2), F.R.Civ.P. They argue, in essence, that the EEOC’s notice of appeal was untimely and defective under Rule 53(e)(2); that the court erred in directing the Special Master to reverse himself because it did not follow the procedures outlined in Rule 53(e)(2); and that the court should have accepted the Special Master’s decision of October 13, 1989 because it was not “clearly erroneous,” the standard of review that Rule 53(e)(2) prescribes with respect to a Special Master’s findings of fact.

Rule 53(e)(2), however, governs cases in which a party objects to a Special Master’s report to the court containing his findings of fact and conclusions of law. Because the instant dispute does not involve any such report by the Special Master to the court, Rule 53(e)(2) simply does not apply. Cf Morgan v. Kerrigan, 530 F.2d 401, 411 n. 13 (1st Cir.), cert. denied, 426 U.S. 935, 96 S.Ct. 2648, 49 L.Ed.2d 386 (1976); 5A Moore’s Federal Practice ¶¶ 53.12[2], 53.-12[4],

Moreover, on the merits, the EEOC is entitled to production of the non-parties’ financial records from 1978 to 1983. Since the defendants have previously been held in contempt for failure to comply with the consent judgment between the parties, and now seek to excuse themselves from fully meeting its court-ordered obligations on grounds of financial impossibility, the EEOC should be afforded great latitude in its attempts to discover and bring to the court’s and the Special Master’s attention any information pertaining to the defendants’ financial condition.

The non-parties contend that, since they are legally separate from the defendants and are not statutorily or contractually obligated to pay any of defendants’ debts, their own financial records are irrelevant to the determination of defendants’ financial situation. This contention construes too narrowly the reasons underlying the EEOC’s inquiry into the non-parties’ financial records. The EEOC’s accounting expert’s examinations of previously produced documents revealed apparent linkages between the defendants and the non-parties, in the form of, among other things, allocation of revenues and expenses through a central “funds office.” See Affidavit of Stanley J.

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133 F.R.D. 445, 1990 U.S. Dist. LEXIS 16099, 55 Empl. Prac. Dec. (CCH) 40,553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/equal-employment-opportunity-commission-v-local-580-nysd-1990.