will not be disclosed. Nor has the EEOC provided assurances that any non-disclosure agreement executed pursuant to Section 83 of the EEOC's Compliance Manual could prevent the CWA from disseminating the tests to the general membership of the CWA. It is unclear how the EEOC effectively could enforce such an agreement. Thus the Court finds that the EEOC has not adequately assured respondents that their interests will be protected.
Therefore, the Court finds that because respondents have a strong interest in protecting the subpoenaed documents from disclosure to the CWA, the EEOC must enter into a confidentiality agreement with respondents that prevents the dissemination of this material. The agreement must provide that the tests and validation information will not be released to the CWA. The agreement also must provide that the information will not be duplicated or copied, and that the documents will be returned to respondents at the conclusion of the EEOC's investigation. Accordingly, the EEOC's application with respect to Subpoena Items 1a-c, 3a-b, and 3d is conditionally granted.
Subpoena Item 2(b)
Subpoena Item 2(b) seeks a copy of the "application test test results" for each applicant for the collector position from September 1990 through October 1991. Respondents already have turned over the test results for each of the 1,120 applicants who applied for this position. Moreover, respondents have agreed to make available the applications themselves. See Respondents' Memorandum at 7. Therefore, with respect to this portion of the EEOC's application for enforcement of Subpoena Item 2(b), the application is moot.
With respect to the EEOC's demand for production of the test itself, the EEOC has met its burden of showing that the test is reasonably relevant to an inquiry conducted pursuant to its legitimate authority and that the request is sufficiently definite. The Court orders production of the test subject, however, to the same confidentiality conditions described above. Accordingly, the EEOC's application with respect to Subpoena Item 2b is denied in part as moot, and conditionally granted in part.
Subpoena Item 4
Respondents state that they have turned over the documents requested in Subpoena Item 4. Because this information is already in the EEOC's possession, the application with respect to Subpoena Item 4 is denied as moot.
Subpoena Item 5
Subpoena Item 5 seeks information regarding applicants and employees of the New Jersey Bell Telephone Company and the Bell Pennsylvania Telephone Company. Respondents assert that they do not have this information, because these companies are not under control of respondents. See Respondents' Memorandum at 9. If a respondent lacks the information necessary to comply with part of a subpoena, such compliance is excused. EEOC v. Bay Shipbuilding Corp., 668 F.2d 304 (7th Cir. 1981). Accordingly, with respect to Subpoena Item 5, the EEOC's application is denied.
For the foregoing reasons, it hereby is
ORDERED, that the EEOC's application for enforcement of Subpoena Items 1a-c, 3a-b, and 3d is granted on the condition that the parties sign a confidentiality agreement, as described above, that will insure that this information is not released to the CWA. It hereby further is
ORDERED, that the EEOC's application for enforcement of Subpoena Item 2b is denied in part as moot. The application is granted with respect to the production of the collector test subject to the signing of a confidentiality agreement, as described above, that will insure that this information is not released to the CWA. It hereby further is
ORDERED, that the EEOC's application for enforcement of Subpoena Item 4 is denied as moot. It hereby further is
ORDERED, that the EEOC's application for enforcement of Subpoena Item 5 is denied.
Stanley S. Harris
United States District Judge
Date: FEB 3 1993