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In a dispute between the federal Equal Employment Opportunity Commission and Federal Express Corporation, the Ninth Circuit Court of Appeal has ruled that the EEOC has jurisdiction and authority to issue investigative subpoenas requiring documents from an employer, even though (1) the EEOC already declined to pursue the underlying employee complaint and closed its file; and (2) the subpoena does not seek direct evidence of an employer violation, but instead “seeks general employment files in order to help the EEOC draft future information requests” to explore charges of systemic discrimination (what an employer might consider a fishing expedition).  On point 1, the Ninth Circuit interprets the EEOC’s powers to be such that even after it issues a “right to sue” letter on an employee complaint, meaning it decides not to pursue any action against the employer, it still has residual authority to reopen or continue an investigation and issue subpoenas to the employer.  On point 2, the Ninth Circuit finds that the fishing-expedition subpoena is enforceable because even a broad sweep of employment files is “relevant” to a claim of systemic discrimination, and is “not overbroad” because the EEOC supposedly “demonstrated restraint” by requesting computerized file data rather than the underlying files themselves.  (EEOC v. Federal Express, Ninth Circuit No. 06-16864, March 3, 2009, amending original opinion of September 10, 2008)

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