Court’s Use of a Special Master to Assist EEOC in Obtaining Discovery from Defendant

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

In Equal Emp. Opportunity Comm’n v. Genesh, Inc., No. 24-2445-DDC-ADM (D. Kans. Jul. 18, 2025) (“Genesh IV”), after several rulings adverse to Genesh, the court appointed a Special Master to facilitate the plaintiff EEOC’s discovery from the defendant, Genesh, Inc. 

THE UNDERLYING CLAIMS

“Genesh III” describes the nature of the case: “On September 30, 2024, the Equal Employment Opportunity Commission (‘EEOC’) brought this public-enforcement action against Genesh, Inc. (‘Genesh’), the owner and operator of more than 50 Burger King restaurant franchises…. The EEOC alleges Genesh violated Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 by, among other things, subjecting a class of female employees to sexual harassment.”  Equal Emp. Opportunity Comm’n v. Genesh, Inc., 2025 WL 2022797, at *1 (D. Kan. July 18, 2025) (“Genesh III”).

RULINGS IN GENESH I, II, AND III, ADVERSE TO GENESH

In Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. Apr. 3, 2024), the court wrote that “it would be in the parties’ interest to reach a negotiated result. It should not be forgotten that a party could be ‘right,’ but find itself on the losing side of a court’s ruling.” See There’s No Right or Wrong Answer – But There Are Mistakes (Apr. 19, 2024).

Issue 1 Was Resolved Adversely to Genesh

In Genesh III, Genesh did not dispute that Ms. Karla Lassen, who alleged sexual harassment, had “an unconditional right to intervene” in the action under the governing statute, 42 U.S.C. §2000e-5(f)(1); however, Genesh asserted that Ms. Lassen’s intervention motion was untimely under Fed.R.Civ.P. 24.  A substantial amount of discovery took place before Ms. Lassen filed her motion.

Ms. Lassen alleged that she was part of the class. Compl., ¶8. The court held that Ms. Lassen’s nine-month delay did not render invention untimely. It wrote: “Genesh seems to oversell the prejudice it would suffer by Lassen’s intervention.”  2025 WL 2022797, at *2. 

Issue 2 Was Resolved Adversely to Genesh

Plaintiff LZ was a minor when suit was filed. She turned 18 as the case progressed.  Defendant Genesh refused to agree to LZ’s continued use of a pseudonym after she became an adult. LZ prevailed.

In Genesh II, the court wrote:

Plaintiffs have demonstrated that this is an exceptional case in which LZ’s need for anonymity outweighs the public interest in having access to her identity. The sexual assault and harassment of a minor involves matters of a highly sensitive and personal nature. The alleged facts of the case demonstrate risks of future psychological harm and repetition of the injury against which plaintiffs are litigating. Accordingly, the court allows LZ to proceed in this case anonymously using her initials.

Equal Emp. Opportunity Comm’n v. Genesh, Inc., 2025 WL 1884724, at *1 (D. Kan. July 8, 2025) (“Genesh II”).

It appears from the docket that on July 21, 2025, Genesh filed an objection to the Magistrate Judge’s order on this issue.

Issue 3 Was Resolved Adversely to Genesh

In Genesh I, the court found that Genesh failed to comply with notice mandated by Fed.R.Civ.P. 45 in connection with a subpoena for LZ’s protected school records.  Plaintiff asserted that Genesh “obtained her school records via a subpoena issued in violation of Federal Rule of Civil Procedure 45(a)(4). She asks the court to strike all references to the school records from the transcripts of depositions that have occurred to date and to order all parties to refrain from referencing the records (and information contained therein) in future depositions/trial and to delete the records from their files.”  Equal Emp. Opportunity Comm’n v. Genesh, Inc., 2025 WL 1798316, at *1 (D. Kan. June 30, 2025)(“Genesh I”). 

In Genesh I, the court wrote:

The court has no trouble finding Genesh violated Rule 45(a)(4). The clear and unequivocal language of the rule required Genesh to serve LZ (and other parties in the case) notice and a copy of the subpoena that it intended to serve on USD 342 before service on USD 342. Genesh does not deny that it did not give LZ notice or a copy of the version of the subpoena it ultimately served on USD 342 until after USD 342 produced the school records in response and Genesh surprised its opponents with the records during depositions.

Equal Emp. Opportunity Comm’n v. Genesh, Inc., 2025 WL 1798316 (D. Kan. June 30, 2025)(“Genesh I”).

The Genesh I court explained:

When a party violates Rule 45’s notice requirement, courts take varying positions on the relief to be afforded the adverse party. The Tenth Circuit does not appear to have addressed the issue. However, the majority of courts that have considered the issue have found that when a party fails to give timely notice and the opposing party is prejudiced by the deprivation of the right to object, it is appropriate to quash the subpoena and prohibit the use of any produced documents….  Given the facts in this particular case—including the protected status of the subpoenaed documents, LZ’s substantive objections to production of the documents, and Genesh’s service of the subpoena without notice to LZ’s counsel—the court is persuaded to follow the body of case law that quashes the unnoticed subpoena and prohibits use of the illicitly obtained documents.

Id.

It added: “Genesh’s clandestine service of the revised subpoena prejudiced [plaintiff] LZ in multiple ways.”  It also wrote that the student had a FERPA-protected privacy interest in the records. The subpoena was quashed and “its forbidden fruits deemed unusable.”

The court orders the parties to destroy documents in their possession produced as a result of the non-compliant subpoena. The court strikes all references to those documents from the deposition records and prohibits the parties from referencing the documents or their contents in future depositions or trial testimony in this case. The court further orders Genesh to provide notice of all subpoenas for production of documents that it intends to issue to any non-party seven days before the issuance.

Id.

Issue 4 Was Resolved Adversely to Genesh

In Footnote 3, the court wrote: “This is not Genesh’s first highly irregular procedural misstep. Genesh also previously filed a purportedly ‘joint motion’ without obtaining LZ’s consent.”

The docket reflects that, on November 26, 2024, Genesh’s November 23^rd motion to strike factual portions of the Complaint was denied. “The paragraphs at issue directly relate to the allegations and claims asserted against defendant. The court finds defendant has not met the high burden for striking pleadings, and the court declines the request to strike material from its docket.”  Docket No. 2:24-cv-02445.¹

ISSUE 5: THE PARTIES AGREE TO A SPECIAL MASTER

Here, in my opinion, the Special Master’s role is entirely focused on assisting the EEOC in obtaining relevant, proportionate discovery from the defendant, Genesh.  In Genesh IV:

On July 10, 2025, the court convened a conference at the parties’ request to discuss a number of discovery disputes. During the conference, the parties discussed their divergent positions on whether defendant complied with the agreed-upon parameters for a search of its Electronically Stored Information (“ESI”). Based on the parties’ confusion over what searches defendant ran and what documents defendant produced in response, the court suggested that the appointment of a special master under Fed. R. Civ. P. 53 might be the most efficient route to understand the alleged ESI discrepancies and facilitate a plan for completing ESI discovery. The parties agreed. The court allowed the parties to suggest persons who might serve as a special master for this purpose. [Emphasis added].

Equal Emp. Opportunity Comm’n v. Genesh, Inc., No. 24-2445-DDC-ADM (D. Kans. Jul. 18, 2025) (“Genesh IV”).

The parties agreed to “the appointment of Christopher Burton, Esq., Director of Client Services and Consulting Deputy General Counsel for Complete Legal in Mission, Kansas, as special master to oversee and manage discovery of defendant’s ESI.” [Emphasis added].

The Genesh IV court appointed Mr. Burton pursuant to Fed.R.Civ.P. 53 and its inherent authority.  It directed that the Special Master confer with the parties to develop a process to carry out a series of eleven enumerated duties.

The Special Master is to assist “and, when necessary, direct” the parties regarding identification, recovery, and production of defendant’s ESI.” [Emphasis added].  Mr. Burton is directed to “review the parties’ agreed-upon search parameters for defendant’s ESI and work with defendant to determine where potentially responsive information is stored and how it can be most effectively identified, searched, reviewed, and produced.”  [Emphasis added]. He “is authorized to resolve issues as to the scope and necessity of electronic discovery, as well as search methods; terms and protocols; means, methods, and forms of production and redaction; formatting; and other technical matters.”

The order states:

The parties are directed to give the Special Master their full cooperation and to promptly provide the Special Master access to any and all facilities, files, documents, media, systems, databases and personnel that the Special Master deems necessary to complete his duties.

Equal Emp. Opportunity Comm’n v. Genesh, Inc., No. 24-2445-DDC-ADM (D. Kans. Jul. 18, 2025) (“Genesh IV”)

One interesting aspect of the court’s order is:

The parties must not initiate ex parte communications with the Special Master, but the Special Master has authority to communicate ex parte with the parties for the purposes of any administrative matter that, in his opinion, warrants ex parte communication. The Special Master has the authority to communicate ex parte with the court under all circumstances. The Special Master has the authority to set limits on the parties’ communications with him.

Id.

When serving as a Court Appointed ESI Discovery Supervisor for ESI Protocol (Sep. 13, 2024), I found a very broad ex parte process to be invaluable.

The Genesh court entered an order under Fed.R.Evid. 502 providing that disclosure of privileged information is not a waiver of privilege.  However, I think it may have gone a bit too far by ordering that “accordingly, a claim of privilege or protection may not be raised as a basis to resist such disclosure.” In my view, Fed.R.Evid. 502 does not permit a court to order production of privileged information. See Courts Cannot Order a “Quick Peek” Without Consent (Jan. 16, 2021)(suggesting that a court cannot compel production of privileged information because that is beyond the scope of Rule 26(b)(1)).

The Special Master was directed to submit a report to the court.  Courts often appoint Special Masters to “bring the ball across the goal.”  Court Appointed a Special Master to Negotiate ESI Protocol (Dec. 12, 2024); JAMS: “Mediating E-Discovery Can Save Time and Money” (Dec. 23, 2023); Mediation of ESI Disputes.

Notes

1. The docket also reflects that Genesh’s motion for protective order and limited stay of discovery was granted in part and denied in part. LZ’s motion to compel production of documents from Genesh was granted. ↩︎

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