ORDER

KRISTEN L. MIX, Magistrate Judge.

This matter is before the Court on Defendant's oral Motion to Compel Production of Documents [#253] (the "Motion")1. The Court held a hearing on the Motion on August 1, 2013. See generally Minutes/Minute Order [#253]. On August 19, 2013, Plaintiff submitted a Memorandum Re Jackson Hospital Factors (attached hereto as Attachment A), a Declaration of EEOC Chair Jacqueline A. Berrien (attached hereto as Attachment B) and the disputed documents for in camera review. On August 23, 2013, Defendant submitted its Response to Plaintiff's Memorandum re Jackson Hospital Factors (attached hereto as Attachment C). On September 12, 2013, Plaintiff submitted its Response to Defendant's Request for Fees (attached hereto as Attachment D). The Court has reviewed the materials submitted and is fully advised in the premises. For the reasons set forth below, the Motion is denied.

In short, Defendant seeks production of internal emails by EEOC employees relating to the EEOC investigation of Defendant prior to the filing of this lawsuit. The emails date from October of 2008 to February of 2009; the Complaint in this action was filed on August 30, 2010. See Attachment B at Exh. A; see generally Complaint [# 1].2 Defendant also seeks notes by an EEOC investigator, made shortly after the lawsuit was filed, concerning "intentions for additional communications with King & Griesen, a law firm representing many of the [] Charging Parties." Attachment B at Exh. A.

The EEOC contends that the requested documents are not relevant to any issue in this litigation. The agency points out that its investigation has no bearing on the trial de novo of its claims against Defendant for religious discrimination under Title VII. See Attachment A at 2. In response, Defendant asserts that it "does not seek the documents for the purpose of challenging the sufficiency of the EEOC's predetermination investigation." Instead, Defendant argues that the information gathered by the EEOC during its investigation "affect[s] the credibility of its allegations and thus [is] relevant to the merits of the EEOC's claims." Attachment C at 2-3.

First, Defendant has the burden of establishing the relevance of the requested information. Simpson v. Univ. of Colo., 220 F.R.D. 354, 356 (D. Colo. 2004). It has not sustained that burden here. Defendant's explanation that the documents go to the "credibility" of the EEOC's allegations sounds uncomfortably like a back-door attempt to evaluate the adequacy of the EEOC investigation, a subject which is simply off limits. See, e.g., EEOC v. KECO Indus., Inc., 748 F.2d 1097, 1100 (6th Cir. 1984); EEOC v. Caterpillar, Inc., 409 F.3d 831, 832-33 (7th Cir. 2005) (holding "[n]o case actually holds that the scope of the EEOC's investigation is a justiciable issue in a suit by the EEOC"). In addition, Defendant offers no specific reason why the investigator's post-filing notes relating to the Charging Parties' attorneys could be relevant, and the Court perceives none.

Second, to the extent that Defendant argues that the requested documents contain information about "facts and witnesses . . . and the process [the EEOC] used to investigate," the Court is unconvinced. The EEOC's investigatory process is not relevant, for the reason cited above. Moreover, if these types of internal emails were routinely discoverable simply because they refer to facts and witnesses, the deliberative process privilege would be eviscerated. EEOC v. Albertson's LLC, No. 06-cv-01273-CMA-BNB, 2008 WL 4877046 at * 5 (D. Colo. Nov. 12, 2008) (holding that argument that litigant was entitled to discover what information EEOC obtained during its investigation prior to filing of lawsuit as opposed to what purported evidence it put forth after the filing of the lawsuit "would eviscerate the deliberative process privilege.") (emphasis in original). "A defendant always wants the benefit of the EEOC's analysis . . ., but that alone is insufficient to overcome the important interests of the privilege, properly asserted." Id.

The deliberative process privilege "shields documents reflecting advisory opinions, recommendations and deliberations compromising part of a process by which governmental decisions and policies are formulated." Trentadue v. Integrity Comm., 501 F.3d 1215, 1226 (10th Cir. 2007). The purpose of the privilege is to "enhance the quality of agency decisions by protecting open and frank discussion among those who make them within the Government." Id.

The deliberative process privilege has been properly asserted here. In the context of an EEOC investigation, the deliberative process privilege may be invoked to protect from disclosure predecisional documents and other information which "reveal the give and take of the consultive process" concerning the EEOC's investigation and its decisions regarding whether and how to pursue an enforcement action. EEOC v. Continental Airlines, Inc., 395 F.Supp.2d 738, 741 (N. D. Ill. 2005). To properly assert the privilege, the EEOC must make a knowing and formal claim of the privilege, submit a Declaration stating the precise reasons for preserving confidentiality of the documents, and identify and describe them. Id. at 741.

The Declaration of EEOC Chair Jacqueline A. Berrien and privilege log tendered by the EEOC contain the required information. See generally Attachment B; Attachment B at Exh. A. As a result of my in camera review of the requested documents, I conclude that the requested emails are both predecisional and deliberative, in that they are largely "non-factual materials that express opinions or recommendations." Trentadue, 501 F.3d at 1228. Accordingly, the emails are protected by the deliberative process privilege, and the Motion as to them is DENIED. As indicated above, the post-litigation notes are not relevant to the subject matter of the litigation, and the Motion is therefore also DENIED as to them. Finally, Defendant's request for attorneys' fees and costs is also DENIED.

PLAINITFF'S MEMORANDUM RE JACKSON HOSPITAL FACTORS

Plaintiff EEOC submits this brief to address the five factors set out in the case Nat'l Labor Relations Bd. v. Jackson Hosp. Corp., 257 F.R.D. 302, 308 (D.D.C. 2009) as requested by the Court in its Order dated August 1, 2013 (ECF Dkt. # 253). In addition to this brief, the EEOC is submitting a declaration signed by the Chair of the EEOC, Jacqueline Berrien, with an exhibit summarizing each of the withheld documents. The EEOC has simultaneously provided all of the withheld documents to the Court for an in camera review.

I. The Requested Documents are Not Relevant

First and foremost, this Court need not even engage in the determination of whether these documents are covered by the deliberative process privilege because the documents that have been withheld from production are not relevant to any issue in this litigation. This lawsuit concerns whether or not Defendant violated Title VII when it terminated over 100 Somali Muslim employees during Ramadan 2008 and refused to accommodate their religious beliefs. The trial of this matter is a trial de novo — the EEOC's findings in its investigation have no bearing on this determination. As such, the extent of the underlying investigation is not relevant to this matter. See, e.g., EEOC v. KECO Industries, Inc., 748 F.2d 1097, 1100 (6th Cir. 1984) (holding the district court "erred in allowing defendant KECO to challenge the sufficiency of the EEOC's investigation"); EEOC v. Caterpillar, Inc., 409 F.3d 831, 832-33 (7th Cir. 2005) ("[n]o case actually holds that the scope of the EEOC's investigation is a justiciable issue in a suit by the EEOC"); Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir. 2002) ("the nature and extent of [an EEOC] investigation are discretionary"); EEOC v. California Psychiatric Transitions, 725 F.Supp.2d 1100, 1112-14 (E. D. Ca. 2010) ("[s]everal other courts have concluded that the adequacy of the EEOC investigation may not be challenged"). Accordingly, the documents Defendant is requesting to obtain are neither relevant nor calculated to lead to the discovery of admissible evidence.

II. The Withheld Documents Meet the Jackson Hospital Five Factors

a. The Withheld Documents are Pre-Decisional

All documents and redactions that have been withheld from production and that are summarized in Exhibit A to Commissioner Berrien's declaration are pre-decisional in nature. EEOC began receiving information about the events that gave rise to this lawsuit in early September 2008. EEOC began to receive charges against Swift about a month later in October 2008. EEOC issued its cause determinations on the charges it received against JBS Swift in late August 2009. With one set of exceptions, all of the communications at issue fall between these dates, as evidenced by the date column in Exhibit A. The one set of exceptions are the last two entries in Exhibit A. These redactions and one document pertain to charges filed against Swift after EEOC issued its initial round of cause determinations in August 2009. These documents are pre-decisional as they came prior to issuing any determinations on the charges to which these documents relate.

b. The Withheld Documents are Deliberative

The EEOC has properly claimed the deliberative process privilege, which protects information that reveals the "give-and-take of consultative process" including "drafts, recommendations proposals, and suggestions that reflect the personal opinions of the author rather than the policy of the agency." SEC v. Nacchio, 2009 U.S. Dist. LEXIS 8365, *10-11 (D. Colo. Jan. 29, 2009).

As Commissioner Berrien explains in her declaration, during an investigation, EEOC personnel will often communicate with each other via email about what is happening in the investigation and how they believe the agency should proceed. [Dec. at ¶ 3]. By picking and choosing what information to recount, the individual sending an email is indicating what information he or she thinks is sufficiently important to discuss with other EEOC staff. This give-and-take of communications among EEOC staff is essential to the process of reaching a final resolution of a charge of discrimination. The disclosure of such communications would inhibit the deliberative process because employees would justifiably question what they should put in writing. Stated differently, EEOC employees will be less likely to engage in the mundane day-to-day email communication about specific charges if it means that their emails may be exposed and that they may be interrogated about every choice or recommendation they made during an investigation. See e.g., Judicial Watch, Inc. v. U.S. Dept. of Justice, 2006 WL 2038513 (D.D.C. 2006) ("a document is deliberative if it `reflects the give-and-take of the consultative process'" or "if its disclosure would tend to `discourage candid discussion within an agency.'") (internal quotations omitted).

With respect to documents 3514, 3516, 3733, these are all email communications to and from Ron Edwards, who is the manager of the EEOC's office in headquarters, that performs analytic work, including statistical analysis of data, relating to charges filed with the EEOC. Accordingly, Mr. Edwards acts as a consulting expert during our investigation as he conducts analysis on any data produced during an investigation, and his analysis is used by the field offices in determining what finding to make on particular charges of discrimination where such analysis is conducted. Similarly, with respect to documents 3511-12, 3513, 3517-18, 3519, 3520, 3521, and 3523, these are emails with Jose Robinson, an IT specialist employed by the EEOC who likewise provided expertise during our investigations.

c. The Withheld Documents Do Not Memorialize Agency Final Policy

As the Court can see from the content of the documents, these are day-to-day communications among EEOC staff about the conduct of the investigations, and do not in any respect constitute a memorialization of Commission policy.

d. The Withheld Documents Were Not Shared with the Public

Undersigned counsel avers that all of the documents withheld from production have been marked in EEOC records with the notation "Privileged — Do Not Disclose," and that none not been shared with anyone outside of the Agency. The confidentiality provisions of Title VII subject EEOC to severe sanctions, including fines and incarceration, for disclosing information which EEOC staff are required by law to keep confidential. 42 U.S.C. § 2000e-5. As a result, EEOC staff are very cognizant of their responsibility to maintain privacy of records in the Commission's files.

e. The Withheld Documents Cannot be Further Redacted

The EEOC has carefully reviewed each of the documents and has produced all non-privileged information. Thus, for example, documents 6513, 6521, 6541, 7052, 7071, 7-74, 7083, 7288, 7309, 7328, 7344, 7363, 7380, 7397, 7414, 7434, 7397, 7414, 7432, 7448, 7464, 7480, 7269, 7500, 7500, 7519, 7537 are documents that were produced with slight redactions to remove the deliberative portions. The EEOC has highlighted in a red box the information that was withheld from production. Similarly, document 3672 was produced with the redaction of just two sentences, which are marked with red boxes.

While it is true that the privilege does not generally apply to purely factual recitations, it is not true that all factual recitations can be dissociated from the deliberative process. See, e.g., Trentadue v. Integrity Committee, 503 F.3d 1215, 1229 (10th Cir. 2007); Hopkins v. U.S. Dep't of Housing and Urban Dev., 929 F.2d 81, 85 (2d Cir. 1991); Nat'l Wildlife Fed'n v. U.S. Forest Serv., 861 F.2d 1114, 1118 (9th Cir. 1988); EEOC v. Albertson's LLC, 2008 U.S. Dist. LEXIS 95146, *4-5 (D. Colo. Nov. 12, 2008); FTC v. Digital Interactive Assocs., 1997 U.S. Dist. LEXIS 3520, *5 (D. Colo. March 17, 1997). To the extent that factual information was not intertwined with the deliberative process and not subject to additional privileges, EEOC provided the factual information. For example, Document 3662-63 are emails between Investigator Breen and her supervisor, discussing previous emails between the EEOC and Ashley Kelliher, a private attorney representing some of the Charging Parties. The underlying emails between Ms. Kelliher and Ms Breen were previously produced to Defendant, and only the deliberative emails between Ms. Breen and her supervisor were withheld. Similarly, the news articles that are subject of some of the emails, for example, 3704-05, have all either previously been produced or are in the process of being produced.

CONCLUSION

Each of the documents withheld pursuant to the deliberative process privilege meet the five Jackson Hospital requirements. Accordingly, this Court should rule that the EEOC properly invoked the deliberative process privilege and deny Defendant's motion to compel these documents, particularly since Defendant has not articulated any need for these documents. Indeed, none of these documents contain any information that is relevant to any issue in this litigation.

DECLARATION OF EEOC CHAIR JACQUELINE A. BERRIEN

I, Jacqueline A. Berrien, state the following:

1. I am the Chair of the United States Equal Employment Opportunity Commission ("EEOC" the "Commission"). The Commission is responsible for the administration, interpretation, and enforcement of, among other statutes, Title VII of the Civil Rights Act of 1964, §§ 2000e et seq. As Chair, I am responsible for the implementation of Commission policy and the overall operation and administration of the Commission. I am authorized to invoke on behalf of the Commission the

2. The operation of the Commission as a law enforcement agency requires the free expression by Commission employees of analyses, advice, recommendations, and opinions regarding charges of discrimination and how specific charges should be processed and investigated by the Commission.

3. During an investigation, EEOC personnel will often communicate with each other via email about what is happening in the investigation and how they believe the agency should proceed. These interchanges are predecisional and disclosure would negatively impact the Commission's ability to enforce the anti-discrimination laws.

4. I understand that certain documents and portions of documents in EEOC's investigative files regarding charges filed against the defendant in this action, including emails such as those described in paragraph 3 above, have become the subject of a motion to compel, and that the Court has requested that EEOC formally invoke the deliberative process privilege with respect to these documents and portions of documents. I have reviewed these documents and portions of documents, and hereby invoke, on behalf of the Commission, the deliberative process privilege for the documents and portions of documents described in Exhibit A to this Declaration. These documents and portions of documents are predecisional, and their disclosure would inhibit the free expression and flow of ideas and opinions necessary for proper I declare under penalty of perjury that the foregoing is true and correct.

Exhibit A to Declaration of EEOC Chair Jacqueline A. Berrien

DEFENDANT'S RESPONSE TO PLAINTIFF'S MEMORANDUM RE JACKSON HOSPITAL FACTORS

Defendant JBS USA, LLC d/b/a JBS Swift & Company ("JBS") submits this response to Plaintiff's Memorandum re: Jackson Hospital Factors submitted to the Court on August 19 2013. Defendant maintains its motion to compel the following documents, E0000 —

Defendant respectfully requests that the Court proceed with an in camera review of these documents.

I. THE REQUEST FOR THE DOCUMENTS IS REASONABLY CALCULATED TO LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE.

The EEOC oversimplifies this matter by assuming that the only possible relevance to the requested documents is to challenge the sufficiency of the EEOC's investigation. Defendant does not seek the documents for the purpose of challenging the sufficiency of the EEOC's predetermination investigation. The EEOC is prosecuting Phase I of this lawsuit. Facts and witnesses within its knowledge, the information it gathered in the course of its investigation, and the process it used to do so, affect the credibility of its allegations and thus are relevant to the merits of the EEOC's claims. The request for the documents need only be reasonably calculated to lead to the discovery of admissible evidence; the documents themselves need not be admissible, nor need MS prove that they absolutely will produce discoverable information. Fed. R. Civ. P. 26(b)(1). The cases that the EEOC cites hold only that the sufficiency of the EEOC's investigation is not judicially reviewable for purposes of satisfying the conditions precedent to a federal lawsuit. The cases do not hold that the facts and information gathered within the course of that investigation are irrelevant in a subsequent lawsuit.1 See e.g. Arizona ex rel. Goddard v. Frito-Lay, Inc., 273 F.R.D. 545, 552 (D. Ariz. 2011) (when reasonable cause determination is admitted as evidence at trial, the accuracy, adequacy, and reasonableness of the investigation, the reasonableness of the evaluation of the investigation, and the resulting conclusions are all relevant topics of inquiry). Moreover, the EEOC clearly is the only source from which JBS may obtain these documents and the information within them, by its own position with respect to this motion that the documents are protected from disclosure to anyone outside the EEOC.

II. TEE EEOC'S SUBMISSIONS DO NOT ESTABLISH THE APPLICABILITY OF THE CLAIMED PRIVILEGES AS TO THE ABOVE-REFERENCED DOCUMENTS.2

Exhibit A to Chair Jacqueline A. Berrien's declaration is insufficient to establish the applicability of the governmental deliberative process privilege with respect to the documents listed above. Specifically, neither the declaration nor its Exhibit A demonstrates how the documents were deliberative. See N.L.R.B. v. Jackson Hosp. Corp., 257 F.R.D. 302, 308-09 (D.C. 2009). Also, an in camera inspection is appropriate to determine whether or not the documents can be redacted so as to exclude privileged material from an otherwise discoverable document. The EEOC contends the documents cannot be redacted, but nothing in the declaration and supporting materials is definitive as to that assertion.

WHEREFORE, Defendant respectfully requests that the Court proceed with an in camera review of the above-listed documents.

III. DEFENDANT REQUESTS ATTORNEY'S FEES AND COSTS ASSOCIATED WITH THE MULTIPLE REQUESTS FOR ADDITIONAL INFORMATION WITH RESPECT TO THE DISPUTED DOCUMENTS.

Defendant twice requested additional information to support the EEOC's claims of privilege as to various documents on its privilege log, prior to Defendant moving to compel the documents. (See materials submitted to Chambers July 31, 2013.) While a motion to compel and in camera review might have been inevitable with respect to some of the documents, had the EEOC provided Defendant with the information it requested (and which it included in Exhibit A to the Chair's Declaration), the parties could have resolved this matter much more quickly and simply. Therefore, Defendant respectfully requests that the Court award Defendant its fees and costs associated with its efforts to obtain additional information from the EEOC up to the date Defendant moved to compel production of the documents.

PLAINITFF'S RESPONSE TO DEFENDANT'S REQUEST FOR FEES

On August 23, 2013, Defendant submitted to Chambers via email a Response to Plaintiff's Memorandum Re Jackson Hospital Factors ("Resp."). Among other things, Defendant, for the very first time asserted a request for "fees and costs associated with its efforts to obtain additional information from the EEOC up to the date Defendant moved to compel production of Documents." Resp., at 4. EEOC hereby responds to Defendant's new request for fees and also to clarify certain other obfuscations contained in Defendant's Response.

1. Defendant's request for attorneys' fees should be denied as unsupported, contradictory, and contrary to the purpose and intent of Local Rule 7.1.

Although not originally requested in its oral motion to the Cowl, Defendant now requests "fees and costs associated with its efforts to obtain additional information from the EEOC up to the date Defendant moved to compel production of Documents." Del Resp. to Plaintiff's Memo., at 4. Defendant contends that the dispute over certain privileged documents, which it no longer seeks, could have been resolved "more quickly and simply." Id. Defendant's Motion should be rejected for several reasons.

First, Defendant cites no authority that would authorize such an award, and in fact, Defendant's position is contrary to the plain wording of Fed.R.Civ.P. 37(a)(5)(a), which allows fees only for "the movant's reasonable expenses incurred in making the motion" (emphasis added).

Second, Defendant's position cannot be reconciled with its assertion that "a motion to compel and in camera review might have been inevitable with respect to some of the documents." Def. Resp, at 4. If the Court's intervention was inevitable, which apparently it was, then it does not follow that there was a quicker or simpler process for resolving the parties' disputes. And Defendant supplies none.

Third, Defendant's request for fees runs contrary to the purpose of Local Rule 7.1(a) which requires all parties to attempt to resolve their disputes prior to filing motions to compel. D.C.COLO.LCiv.R. 7.1(a). "[T]he purpose of Local Rule 7.1(a) is to promote judicial efficiency and economy by precluding the unnecessary filing of motions, responses, and orders." Hooten v. Ikard Servi Gas, No. 12-2179, 2013 WL 1846840, "4 (10th Or. May 3, 2013). Defendant's position is contrary to this purpose because it creates a disincentive to work things out. No reasonable litigant would concede anything or provide any additional information during Rule 7.1 discussions if it knew that it could be on the hook for fees by doing so. Moreover, awarding fees for pre-motion discussions with opposing counsel would simply incentivize multiple protracted written correspondence at the expense of straightforward discussions about how parties can resolve their discovery disputes. Finally, Defendants new position on fees would necessitate more judicial intervention rather than less because it would require the court to weigh and assess all pre-motion deliberations and the positions surrendered by either side. After all, under Defendant's theory EEOC should be entitled to fees because Defendant gave up on a number of issues prior to and as part of the present motion practice.1 No matter how one looks at it, there is little sense in punishing parties for saving judicial resources by reaching agreement, as contemplated by Local Rule 7.1.

Finally, to the extent that this Court needs to assess the positions of the parties during their pre-motion discussions and correspondence, Defendant's own conduct should be viewed with suspect. EEOC repeatedly answered Defendant's questions when it asked EEOC about its assertion's of privilege regarding a particular document or categories of documents. See Correspondence of March 11, 2011 and July 16, 2011 (previously provided to Chambers on July 31, 2013). Moreover, EEOC informed Defendant that if it identified any other particular documents where it questioned the agency's specific assertion of privilege, that the EEOC would re-evaluate and supplement its privilege log. See Correspondence of July 16, 2011, at ¶ 6 (previously provided to Chambers on July 31, 2013). Indeed, the EEOC twice revised its privilege log in response to questions posed by the Defendant. By contrast, Defendant never responded to EEOC's request that it indentify with specificity any document it contested and why it believed the EEOC's information on the privilege log was inadequate. Instead, Defendant sought Court intervention. As such, Defendant's situation was of its own making. It would be patently unfair for it to now profit from its own folly.

Defendant's request for fees should be denied.2

II. The withheld documents are not relevant.

As the EEOC explained in its initial brief, and as the Court will see upon in camera review, the documents the EEOC has withheld are not relevant to the issues in this litigation — they reflect only the EEOC's internal communications about what investigation would be done or what EEOC staff members thought about various aspects of the investigation and do not bear one way or the other on whether Defendant engaged in unlawful discrimination. Defendant's only argument appears to be that such internal communication are somehow relevant to "the credibility of [EEOC's] allegations." Resp. at 2. In other words, Defendant thinks the EEOC's allegations are not credible because it did not do enough investigation or the right kind of investigation to be able to credibly allege that Swift engaged in discriminatory employment practices. But, as noted in EEOC Memorandum and uncontested by Defendant, the law is well settled that the sufficiency of EEOC's investigation is not justiciable and therefore irrelevant to what is at issue here — whether Defendant engaged in the discrimination alleged.

The only case cited by Defendant, Arizona ex. Rel. Goddard v. Frito-Lay, Inc., 273 F.R.D. 545 (D. Ariz. 2011), is inapposite because, unlike the facts in Frito-Lay, no one is trying to admit EEOC's reasonable cause determinations as evidence of liability. EEOC's only reason to introduce the reasonable cause determinations is to show that a determination was made, which is a pre-requisite for EEOC to file suit. See, e.g., EEOC v. Harvey L. Wainer & Assocs., 91 F.3d 963, 968 (7th Cir. 1996) (the administrative pre-requisites for an EEOC lawsuit are: 1) a charge of discrimination, 2) notice of the charge to the employer, 3) an investigation, 4) a determination of reasonable cause, and 5) an effort to conciliate). If Defendant will stipulate that these pre-requisities are met, or even that the 4th pre-requisite is met, then EEOC will not seek admission of the determinations at all. In any event, the EEOC will not seek to admit the reasonable cause determinations to prove liability in this case. And because the determinations will not be offered as evidence of the alleged discrimination, the nature and scope of the EEOC's investigations which resulted in the reasonable cause determinations are irrelevant.

Additionally, the Frito-Lay case is an Arizona case, relying on Ninth Circuit authority to the effect that EEOC determinations are per se admissible, and that the defendant must, therefore, be allowed to challenge the determination. 273 F.R.D. at 551-52 (citing Plummer v. Western Int'l Hotels Co., Inc., 656 F.2d 502, 505 (9th Cir. 1981). The Tenth Circuit, however, does not follow the per se admissibility rule. Rather, like a majority of federal courts, the Tenth Circuit holds that it is in the discretion of the trial court to determine admissibility of the EEOC's determinations. Nulf v. Int'l Paper Co., 656 F.2d 553 (10th Cir.1981); see also, Johnson v. Yellow Freight Sys., Inc., 734 F.2d 1304 (8th Cir.1984); Walton v. Eaton Corp., 563 F.2d 66 (3d Cir.1977); Gillin v. Fed. Paper Board Co., Inc., 479 F.2d 97 (2d Cir.1973); Cox v. Babcock & Wilcox Co., 471 F.2d 13 (4th Cir.1972); Heard v. Mueller Co., 464 F.2d 190 (6th Cir.1972). Thus, the Frito-Lay decision has no applicability in this jurisdiction.3

III. EEOC has sufficiently described the applicability of the privilege.

Defendant also contends in a wholly conclusory fashion that EEOC failed to provide sufficient evidence to establish the applicability of the deliberative process privilege. Resp. at 3-4. EEOC, however, presented not only a Declaration from the Chair of the EEOC with a five-page attachment addressing the documents in contention, but also a Memorandum tailored specifically to the five Jackson Hospital factors as requested by the Court. Defendant completely ignores the latter and fails to explain how it is unable to assess the privilege based on EEOC's submissions. Defendant's conclusory argument is inadequate and should be rejected.

CONCLUSION

The EEOC respectfully requests that this Court deny Defendant's new request for fees as well as the underlying motion to compel. Defendant does little or nothing to substantiate either. The documents requested are not relevant and are protected from discovery by the government deliberative process privilege. The fact that Defendant now concedes as much for certain documents is not a reason to grant Defendant fees.