Equal Employment Opportunity Commission v. Bashas', Inc. (828 F. Supp. 2d 1056, 2011)

ORDER

ROBERT C. BROOMFIELD, Senior District Judge.

Nearly five years ago, petitioner, the Equal Employment Opportunity Commission (“EEOC”), issued its first administrative subpoena to respondent, Bashas’, Inc., attempting to obtain personnel data, including wage information pertaining to Bashas’ employees. See Resp.’s exh. 114. Since then the EEOC has served Bashas’ with, inter alia, three more administrative subpoenas. Pet.’s exhs. 1, 3, and 10. These subpoenas are part of the EEOC’s “ongoing investigation into whether Bashas’ has engaged in discrimination against its Hispanic employees on the basis of national origin with respect to wages and promotions.” EEOC v. Bashas’, Inc., 2009 WL 3241763, at *1 (D.Ariz. Sept. 30, 2009) (“Bashas’ II”). On February 2, 2009, the EEOC filed an Order to Show Cause (“OSC”) as to why this court should not enforce the fourth subpoena dated May 28, 2008. Thereafter, Bashas’ filed a motion seeking leave to conduct limited discovery.

Ultimately the court allowed Bashas’ to conduct some limited discovery, and denied the EEOC’s OSC without prejudice to renew. Id. at *17. After completion of discovery, the EEOC filed the pending renewed application for an OSC (Doc. 63). During the course of the two and a half day hearing on that OSC, the court heard the testimony of 20 witnesses and admitted 45 exhibits into evidence. As the court allowed, the parties’ simultaneously filed closing briefs in support of their respective positions. After careful review, the court makes the following findings of fact and conclusions of law.

I. Governing Legal Standards

“[T]he test for enforcement” of an administrative subpoena “has been phrased in various ways[ ]” by the courts and the parties herein. See Burlington Northern v. Office of Inspector General, 983 F.2d 631, 637 (5th Cir.1993) (footnote omitted). From Bashas’ perspective, the parties “agree” that United States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964), “governs the requirements for enforcement of this [EEOC] administrative subpoena.” Resp.’s Brief (Doc. 103) at 3:7-8 (citing Tr. (Doc. 97) at 8:22-9:2). The cited portion of that transcript does show that at that point the EEOC stated that Powell set forth the parties’ respective burdens of proof. The EEOC’s position on the burden of proof issue has been anything but static, however.

During this litigation, the EEOC has invoked two different standards. Originally, the EEOC took the position that “[t]o successfully petition a court to enforce an administrative subpoena, [it] need[] only ... show that 1) the subpoena is within the agency’s authority; 2) the demand is not too indefinite; and 3) the information sought is relevant to the investigation.” OSC (Doc. 2) at 7:3-7 (citations omitted). In renewing its OSC, the EEOC took that same position. See Renewed OSC (Doc. 64) at 7:25-8:1. These factors are derived from United States v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401 (1950), wherein “[t]he Supreme Court set forth the standard for judicial enforcement of administrative subpoenas[.]” FDIC v. Garner, 126 F.3d 1138, 1142 (9th Cir.1997). After it satisfies those three Morton Salt factors, the EEOC contends that this subpoena must be “enforee[d] ... unless [Bashas’] can prove that [it] is unduly burdensome.” Id. at 7:15-16 (citations omitted); see also Renewed OSC (Doc. 64) at 8:9-10 (citations omitted).

More recently, in its reply on this renewed OSC and subsequent arguments before the court, the EEOC shifted gears. Now, strictly relying upon United States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964), an Internal Revenue Services (“IRS”) subpoena enforcement action, the EEOC states:

[T]o meet its prerequisites for the enforcement of this subpoena, the EEOC need only prove[:]

‘[1] the investigation will be conducted pursuant to a legitimate purpose, [2] that the inquiry may be relevant to the purpose, [3] that the information sought is not already within the [agency’s] possession, and [4] that the administrative steps required by the [agency’s statute or rules] have been followed.’

EEOC Reply (Doc. 76) at 2:16-22 (quoting Powell, 379 U.S. at 57-58, 85 S.Ct. 248) (emphasis added); see also Tr. (Doc. 79) at 9:17-20 (same); and Tr. (Doc. 97) at 9:4-17. Once the EEOC proves those four elements, it argues that the burden shifts to Bashas’ to show an “abuse of the Court’s process[.]” Tr. (Doc. 97) at 10:12-13; 11:5-6 (same). “Such an abuse would take placet,]” the EEOC posits, “if the summons had been issued for an improper purpose.” Id. at 10:8-9; see also Reply (Doc. 76) at 5:7 (citation omitted). The EEOC stresses that Bashas’ burden in this regard “is a heavy one.” Id. at 5:6 (internal quotation marks and citation omitted); Tr. (Doc. 97) at 10:16 (same).

Practically from the outset, Bashas’ has repeatedly recited Powell as the governing legal framework, even though this is not an IRS subpoena enforcement action. Bashas’ first took that position in its reply when moving to conduct limited discovery, Reply (Doc. 16) at 2:9-16 (In re EEOC, 709 F.2d 392, 400 (5th Cir.1983) (citing, in turn, Powell, 379 U.S. at 57-58, 85 S.Ct. 248)); it has continued to adhere to that view since. See, e.g., Resp. (Doc. 25) at 8:4-8 (same); Resp. (Doc. 72) at 9:24-26 (same). After the evidentiary hearing on the renewed OSC, Bashas’ argued that because the EEOC cannot meet what it views as “even the most basic requirement for enforcement” of the May 28, 2008 subpoena under Powell — that it was issued for a “ ‘legitimate purpose[ ]’ ” — the court must deny enforcement of that subpoena. See Resp.’s Brief (Doc. 103) at 1:14-15 (citing Powell, 379 U.S. at 57, 85 S.Ct. 248) (emphasis added).

The parties’ reliance upon Powell, especially in this post-discovery context, is misplaced. Undoubtedly, the Ninth Circuit applies the Powell factors to IRS subpoenas. Most recently, in United States v. Richey, 632 F.3d 559 (9th Cir.2011), the Ninth Circuit reiterated that “[t]o obtain enforcement of [an IRS] summons, the Government has the initial burden of establishing a prima facie showing that[]” the four Powell factors have been met. Id. at 564 (citing Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248; Ponsford v. United States, 771 F.2d 1305, 1307 (9th Cir.1985)). Unlike some other Circuits however, see, e.g., In re EEOC, 709 F.2d 392 (5th Cir.1983) (citing EEOC v. K-Mart Corp., 694 F.2d 1055, 1066 (6th Cir.1982)) (“The EEOC, ..., has the burden of establishing the four requirements articulated in Powell.”); EEOC v. University of Pittsburgh, 643 F.2d 983, 985 (3rd Cir.1981) (applying Powell criteria to EEOC subpoena), the Ninth Circuit does not employ the Powell factors in deciding whether to enforce EEOC or other non-IRS administrative subpoenas. Instead, the Ninth Circuit applies a composite of the Powell and Morton Salt factors.

Viewing “[t]he scope of the judicial inquiry in an EEOC or any other subpoena enforcement proceeding” as “quite narrow[,]” EEOC v. Children’s Hosp. Med. Ctr., 719 F.2d 1426, 1428 (9th Cir.1983) (en banc), abrogated on other grounds by Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), as recognized by Prudential Ins. Co. v. Lai, 42 F.3d 1299, 1303 (9th Cir.1994), the Ninth Circuit deems three “questions” to be “critical” to that inquiry. See id. (citations omitted). Those questions are:

(1) whether Congress has granted the authority to investigate; (2) whether procedural requirements have been followed; and (3) whether the evidence is relevant and material to the investigation.

EEOC v. Federal Express Corp., 558 F.3d 842, 848 (9th Cir.2009) (citing EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071, 1076 (9th Cir.2001)) (quoting, in turn, Children’s Hospital, 719 F.2d at 1428). It is the agency’s burden to establish those three factors. Children’s Hospital, 719 F.2d at 1428 (citations omitted). Once it does, “the subpoena should be enforced unless the party being investigated proves the inquiry is unreasonable because it is overbroad or unduly burdensome.” Id. (citations omitted) (emphasis added). “Put another way,” the Ninth Circuit has explained that “courts must enforce administrative subpoenas unless ‘the evidence sought by the subpoena [is] plainly incompetent or irrelevant’ to ‘any lawful purpose’ of the agency.’ ” Karuk Tribe, 260 F.3d at 1076 (quoting Fed. Mar. Comm’n v. Port of Seattle, 521 F.2d 431, 433 (9th Cir.1975)) (quoting in turn Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509 63 S.Ct. 339, 87 L.Ed. 424 (1943)).

Nevertheless, early on in this litigation this court did look to the Powell factors in considering whether to allow Bashas’ to conduct limited discovery. See EEOC v. Bashas’, 2009 WL 1783437, at *5 (D.Ariz. June 18, 2009) (“Bashas’ I”). That does not preclude this court from employing the analysis of Children’s Hospital and its progeny at this juncture, however.

For several reasons, it is proper and, indeed, necessary for this court to analyze whether to enforce the EEOC subpoena herein based upon the Children’s Hospital line of cases, rather than upon Powell. Primarily that is because while the Ninth Circuit applies the Powell factors in IRS subpoena enforcement actions, it uniformly applies the Children’s Hospital criteria to EEOC and other non-IRS administrative subpoenas. See, e.g., Federal Express, 558 F.3d at 848 (applying Children’s Hospital factors to challenge an EEOC subpoena); Karuk Tribe, 260 F.3d at 1076 (same); Garner, 126 F.3d at 1142 (invoking Children’s Hospital) as “[standard for [enforcement of [Federal Deposit Insurance Corporation (“FDIC”) ] [s]ubpoena;” Reich v. Montana Sulphur & Chem. Co., 32 F.3d 440, 442 (9th Cir.1994) (employing Children’s Hospital as “test” for determining whether to enforce a subpoena issued by the Occupational Safety and Health Administration [ (“OSHA”) ]; EPA v. Alyeska Pipeline Serv. Co., 836 F.2d 443, 446 (9th Cir.1988)) (“In considering the [Environmental Protection Agency] subpoena ..., the district court correctly articulated and applied the Ninth Circuit standard of judicial scrutiny! ]” from Children’s Hospital). Further, the court is unaware of any Ninth Circuit authority, and the parties have not directed it to any, invoking the Powell standards in an EEOC subpoena enforcement action such as this.

Additionally, the law of the case doctrine does not preclude this court from employing the Children’s Hospital factors rather than the Powell factors at this juncture. Under that doctrine, “when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same ease[.]” United States v. Park Place Assoc., Ltd., 563 F.3d 907, 918 (9th Cir.2009) (emphasis added). “For a prior ruling to become law of the case as to a particular issue, that issue must have been decided explicitly or by necessary implication in the previous disposition.” Park Place, 563 F.3d at 925 (citations and quotation marks and alteration omitted). Likewise, the “ ‘law of the case’ does not apply to issues or claims that were not actually decided.” Mortimer v. Baca, 594 F.3d 714, 720 (9th Cir.2010) (emphasis added).

Previously the discrete issue before this court was whether to allow Bashas’ to “[ejonduct [IJimited [djiscovery on the issue of whether the [EEOC’s May 28, 2008] [s]ubpoena constitutes an abuse of process[.]” Bashas’ I, 2009 WL 1783437, at *1 (internal quotation marks and citation omitted). Plainly then, in Bashas’ I this court was not confronted with, and did not have to address, the separate and distinct issue which this renewed OSC raises: whether, in deciding if an EEOC subpoena should be enforced, Powell or Children’s Hospital provides the analytical framework. Given those differing issues, the law of the case doctrine is not implicated here.

Close examination of Bashas’ I bolsters this conclusion. Patterning its analysis after In re EEOC, 709 F.2d 392 (5th Cir.1983), upon which Bashas’ and the EEOC heavily relied, this court engaged in a “ ‘two-step approach’ ” for deciding whether to allow Bashas’ to conduct limited discovery prior to considering the enforcement issue. Bashas’ I, 2009 WL 1783437, at *5. At the first step, this court looked to the “affidavit of Paul G. Manget, the Enforcement Manager of the Phoenix District Office of the EEOC, who is responsible for the investigation of charges of employment discrimination[,]” to determine whether the EEOC had satisfied the Powell factors. See id. at *5-*6. Despite reciting the Powell factors in its reply, Reply (Doc. 16) at 2:12-16 (citations omitted), neither Bashas’ nor the EEOC addressed those factors in discussing whether the court should allow counter-discovery. Hence, “given that Bashas” did “not challeng[e] the sufficiency of that affidavit, and given that the EEOC’s burden at th[at] point [wa]s not onerous,” this court “found that the first step in the enforcement process [wa]s met[.]” Id. The court limited its finding, stressing that the EEOC had met its burden “at least for present purposes.” Id. at *6 (emphasis added). That relatively perfunctory consideration of the Powell factors mirrored the parties’ focus on the second step — whether Bashas’ made “a ‘substantial demonstration of abuse based upon meaningful evidence[]’” so as to warrant allowing it to conduct counter-discovery. See Mot. (Doc. 10) at 7:18-20 (quoting EEOC, 709 F.2d at 400); Resp. (Doc. 14) at 3:22-23 (same) (citing EEOC, 709 F.2d at 400). Thus Bashas’ I is not an obstacle to this court now considering which standards to apply in an EEOC subpoena enforcement proceeding, as opposed to those which apply in deciding whether counter-discovery is warranted.

Moreover, in its post-hearing brief the EEOC explicitly recognized the possibility that the Children’s Hospital line of cases govern here. See Pet.’s Brief (Doc. 102) at 2:4; 2:17-22 (describing the Ninth Circuit as having “refined” and “streamlined” Poivell so that “the critical inquiry” is the Children’s Hospital factors). Further, whether under Powell or the “Ninth Circuit approaches,” the EEOC argues that it “has satisfied each of the prerequisites for enforcement” of the May 28, 2008 subpoena. Id. at 3:1-3 (citation omitted). Thus, the EEOC can hardly claim prejudice due to this court’s finding that the Children’s Hospital standards, and not the Powell standards, govern this subpoena enforcement action.

Given that the Children’s Hospital framework encompasses the abuse of process issue, there also is no prejudice to Bashas’ in that regard. To illustrate, in Reich, 32 F.3d 440, after finding that OSHA had “satisfied the three prongs of the Children’s Hospital test for enforcement!;,]” the Ninth Circuit went on to consider respondent’s argument that the OSHA subpoena “should have ... been quashed as an abuse of process because OSHA initiated the [s]ubpoena to harass and punish [the respondent].” Id. at 449 (citing Powell, 379 U.S. at 58, 85 S.Ct. 248); see also Garner, 126 F.3d at 1146 (after engaging in a Children’s Hospital analysis, the Court considered appellants’ argument that the FDIC issued the subpoenas to harass them). This approach is consistent with the Supreme Court’s recognition on more than one occasion that when a court is asked to enforce an EEOC subpoena, “ ‘its responsibility ... more generally [is] to assess any contentions by the employer that the demand ... has been made for an illegitimate purpose.’ ” University of Pennsylvania v. EEOC, 493 U.S. 182, 110 S.Ct. 577, 583, 107 L.Ed.2d 571 (1990) (quoting EEOC v. Shell Oil, 466 U.S. 54, 104 S.Ct. 1621, 1632 n. 26, 80 L.Ed.2d 41 (1984)). Analysis of the enforcement issue herein in accordance with Children’s Hospital and its progeny, means that despite Bashas’ strenuous assertions to the contrary, the burden will not be on the EEOC to show legitimacy of purpose in the first instance. Placing that initial burden upon the EEOC would, in fact, be at odds with the Ninth Circuit case law discussed herein.

II. EEOC’s Burden

Having found that Children’s Hospital provides the legal framework for analyzing whether to order enforcement of the EEOC’s May 28, 2008 subpoena, the next issue is whether the EEOC has established each of the three “critical” factors necessary to warrant enforcement of that subpoena. See Children’s Hospital, 719 F.2d at 1428 (citations omitted).

A. Congressional Grant of Authority?

The first factor which the EEOC must show is that “Congress has granted [it] the authority to investigate.” See id. (citations omitted). Bashas’ has vehemently maintained that the EEOC is not properly exercising its statutory authority to issue administrative subpoenas; but, wisely, it has never suggested that Congress did not grant the EEOC such authority.

Undoubtedly Congress has granted the EEOC the authority to issue administrative subpoenas. See EEOC v. Deer Valley Unified School Dist., 968 F.2d 904, 906 (9th Cir.1992) (“The investigatory subpoena power of the EEOC is based on specific statutory authority[.]”) “The EEOC bears the ‘[p]rimary responsibility for enforcing Title VII.’ ” Federal Express, 558 F.3d at 849 (quoting Shell Oil Co., 466 U.S. at 61-62, 104 S.Ct. 1621) (citing 42 U.S.C. § 2000e-5(a)). “The EEOC’s enforcement responsibilities are triggered by the filing of a charge of discrimination.” Id. (citation omitted). Such “[a] charge may be filed by an individual who alleges that he was discriminated against or[,]” as here, “by a Commissioner of the EEOC.” Id. (citing 42 U.S.C. § 2000e-5(b); 29 C.F.R. §§ 1607.7(a), 1601.11 (2007)); see Pet.’s exh. 7. “Once that charge is filed, [t]he EEOC is then required to investigate the charge and determine whether there is reasonable cause to believe that it is true.” Id. (internal quotation marks and citations omitted) (emphasis added by Federal Express Court). Thus, “Congress not only has authorized but requires the EEOC to investigate charges of discrimination.” Children’s Hospital, 719 F.2d at 1428 (citing 42 U.S.C. § 2000e-5(b)) (footnote omitted).

To carry out that mandatory duty, the EEOC has a ‘“broad [statutory] right of access to relevant information[.]’ ” Federal Express, 558 F.3d at 849 (quoting Univ. of Pa., 493 U.S. at 191, 110 S.Ct. 577). That right “ ‘entitle[s] the EEOC to inspect and copy ‘any evidence of any person being investigated or proceeded against that relates to unlawful employment practices covered by [Title VII] and is relevant to the charge under investigation.’ ’ ” Id. (quoting Shell Oil Co., 466 U.S. at 63, 104 S.Ct. 1621 (quoting in turn 42 U.S.C. § 2000e-8(a))). “In acquiring such evidence, the EEOC may exercise all powers enjoyed by the NLRB under 29 U.S.C. § 161, including the authority to issue administrative subpoenas and to request judicial enforcement of those subpoenas.” Id. (citing, inter alia, 42 U.S.C. § 2000e-9) (emphasis added). In short, as is readily apparent, “[i]t is clear that the EEOC has the power to investigate charges of discrimination and to utilize the statutory subpoena power in doing so.” Deer Valley Unified School Dist., 968 F.2d at 906 (citing, inter alia, Children’s Hospital, 719 F.2d at 1428; 42 U.S.C. §§ 2000e-5(b); 2000e-8(a); 2000e-9).

B. Procedural Requirements Followed?

In issuing the May 28, 2008 subpoena, the EEOC followed the procedural requirements and Bashas’ does not contend otherwise. See Tr. (Doc. 79) at 19. On its face, that indicates that it was issued pursuant to section 2000e-9. Pet’s exh. 3 at 00001. Fürther, in accordance with 29 C.F.R. § 1601.16, Paul Manjay, an EEOC Enforcement Manager, signed and issued that subpoena. Id. at 28:18-23; see also Pet’s exh. 3 at 00001. As Rayford Irvin, currently the District Director for the EEOC’s Phoenix office testified, Mr. Man-jay has the authority to sign such subpoenas when the District Director is out of the office. Id. at 12:20-21; 28:9-15. That subpoena further complies with section 1601.16 in that it identifies Chester V. Bailey, the then District Director of EEOC’s Phoenix office as the “issuing official,” and includes his EEOC office address. See Pet’s exh. 3 at 00001. As section 1601.16(a) also requires, the May 28, 2008 subpoena identifies the evidence subpoenaed, id. at 00002-00005; and it directs that such evidence be mailed to Charles Rahill, an EEOC Investigator, at his EEOC office address. See id. at 00001; see also Tr. (Doc. 97) at 60:20-61:11. That subpoena further comports with section 1601.16(a) in that it sets forth the place, date and time where the subpoenaed evidence is returnable. See id. Thus, as with the first Children’s Hospital factor— a congressional grant of authority to investigate — the EEOC has easily met the second factor thereunder; it followed the procedural requirements for issuance of the May 28, 2008 subpoena. Whether the EEOC can satisfy the third • Children’s Hospital factor — relevancy and materiality — requires more discussion though.

C. “Relevant and Material”?

The EEOC’s assertion that this court “has found that [it] has satisfied the relevancy requirements necessary for enforcement of an administrative subpoena[,]” strongly implies that based upon the law of the case doctrine, the relevancy prong has been met. See Pet.’s Brief (Doc. 102) at 3:27-28; n. 1 (citing Doc. 40 at 35). Hence, there is no need for the court to address relevancy now.

The EEOC is conveniently overlooking the context of the relevancy discussion in Bashas’ II, however. Because Bashas’ response to the original OSC “could be ... construed[]” as “seek[ing] denial of enforcement” of the subject subpoena in that purportedly it sought “ ‘completely irrelevant’ ” information, this court was “compelled to at least comment upon that assertion.” Bashas’ II, 2009 WL 3241763, at *15 (quoting Resp. (Doc. 25) at 12 (emphasis omitted)). “Commenting” upon an issue amounts to nothing more than dicta having no preclusive effect; thus, the law of the case doctrine does not preclude this court from revisiting anew the relevancy issue on this renewed OSC, and following a full-blown evidentiary hearing. See Rebel Oil Co., Inc. v. Atlantic Richfield Co., 146 F.3d 1088, 1093 (9th Cir.1998) (internal quotation marks and citation omitted) (“A significant corollary to the [law of the case] doctrine is that dicta have no preclusive effect.”)

Further, in concluding its relevancy discussion this court emphasized that “[a]gain, at least for the moment, ” it was “satisfied that the subpoenaed information, while perhaps ‘not necessarily relevant in an evidentiary sense[,] ... will help the EEOC craft additional information requests that may produce evidence of discriminatory treatment.’ ” Id. at *16 (quoting Federal Express, 558 F.3d at 854) (emphasis added). As is readily apparent, especially because the court carefully limited the scope of its earlier relevancy discussion, the law of the case doctrine is inapplicable now.

Title VII gives the EEOC considerable leeway in accessing evidence as part of its statutory duty to investigate employment discrimination. The EEOC is entitled to “any evidence of any person being investigated ... that relates to unlawful employment practices covered by [Title VII] and is relevant to the charge under investigation.” 42 U.S.C. § 2000e-8(a). Although this court is assessing relevancy anew, the Federal Express standards recited in Bashas’ II continue to guide the relevancy inquiry herein:

[C]ourts must enforce administrative subpoenas unless the evidence sought by the subpoena is plainly incompetent or irrelevant to any lawful purpose of the agency.... Relevancy in this context is determined in terms of the investigation rather than in terms of evidentiary relevance .... Moreover, the relevancy requirement is not especially constraining. ... The term relevant is generously construed to afford[] the Commission access to virtually any material that might cast light on the allegations against the employer.

Bashas’ II, 2009 WL 3241763, at *16 (internal quotation marks and citations omitted). The “might cast light” formulation encompasses “an indication of a realistic expectation rather than an idle hope that something may be discovered.” David H. Tedder & Associates, Inc. v. U.S., 77 F.3d 1166, 1169 (9th Cir.1996) (internal quotation marks and citation omitted); see also EEOC v. Aaron Brothers, Inc., 620 F.Supp.2d 1102, 1105-1106 (C.D.Cal.2009) (citations omitted) (noting, when examining a nation-wide EEOC subpoena there “must be a realistic expectation that something may be discovered[ ]”).

The May 28, 2008, subpoena requests that Bashas’ “[p]rovide the electronic or computerized data listed in the [attached] appendix[.]” Pet’s exh. 3 at 00002 at ¶ 1. That appendix lists six fairly broad categories of requested data, and numerous subtypes of information within each of those categories. From the “Employee Root Master File,” for example, the EEOC is seeking the gender of each identified employee; details of the employee’s union affiliation, as well as the employee’s “layoff flag.” See id. at 00003-00005.

The EEOC offers several generic reasons why the requested “[electronic employee data, ... is highly relevant to the investigation of the Commissioner’s Charge alleging national origin discrimination in promotion and wages.” Pet.’s Brief (Doc. 102) at 5:20-22. First, then Deputy Director Irvin testified that the EEOC needs the subpoenaed information to “further [its] investigation^]” Tr. (Doc. 97) at 30:16. Second, in similarly vague terms, Mr. Irvin testified that acquisition of the actual computer data “would be the most efficient way to complete [the EEOC’s] investigation.” Id. at 80:12-13. Mr. Irvin did not elaborate on either point. When directly queried, Mr. Irvin did add that the EEOC would “probably [perform] regression analyses! ]” on the subpoenaed data. Id. at 91:13-17. Third, rather than pointing to any record evidence or offering any explanation, quoting directly from Federal Express, 558 F.3d 842, the EEOC merely states that the requested “data will ‘help [it] craft additional information requests that may produce evidence of discriminatory treatment.’ ” Pet.’s Brief (Doc. 102) at 6:1-2 (quoting Federal Express, 558 F.3d at 854).

Bashas’ concedes that the definition of relevancy is “broader in the context of an administrative subpoena” such as the EEOC subpoena at issue. See Resp.’s Brief (Doc. 103) at 19:9. Perhaps that is the reason why Bashas’ is not contesting the relevancy of the bulk of the subpoenaed data. There are a few subsets of that data, however, which Bashas’ asserts are irrelevant: “[t]he EEOC’s request for gender, layoff and union eligibility information[.]” Id. at 19:13-14. Thus, “at a minimum!,]” Bashas’ is seeking to have the subpoena “narrowed to ... exclude th[ose] clearly irrelevant data requests[.]” Id. at 20:16 and 18.

Comparing the subpoenaed data to the Commissioner’s Charge shows that with one exception Bashas’ position is well-taken. In that Charge, Commissioner Silver-man states her “belie[f]” that Bashas’ has “violated Title VII by discriminating against Hispanics due to their national origin[ ]” by “failing to pay Hispanic employees comparable wages to non-Hispanic employees and failing to promote Hispanics into Management positions.” See Pet’s exh. 7. It is readily apparent how the data sought from Bashas’ “Employee Payroll Master File,” such as weeks worked by quarter, pay rates and annual wage base data, are directly relevant to that Charge. See id. at 00005; see also Children’s Hospital, 719 F.2d at 1428 (“evidence sought ... the charging parties’ personnel files and job descriptions, and lists of other individuals subject to similar disciplinary action by the Hospital — is clearly relevant and material to the charges [of race discrimination] being investigated[ ]”).

In sharp contrast, the court fails to see the relevancy of gender to the EEOC’s investigation of asserted national origin discrimination by Bashas’. Equally irrelevant is the EEOC’s request for union affiliation, including details of an employee’s union “code[,]” “id number[,]” and “8 digit union eligibility date[.]” See Pet’s exh. 3 at 00004-00005. Contributing to this finding is the fact that the EEOC, which has the initial burden of proof as to relevancy, offers no explanation as to how gender or union affiliation is relevant to its investigation of national origin discrimination.

On the other hand, conceivably an employee’s “layoff flag” could be relevant in investigating this charge of national origin discrimination. Hypothetically, it is possible to envision a situation where being “flagged” for layoff impacts an Hispanic employee’s promotion or wage opportunities, or both. The converse is also possible. Again, hypothetically speaking, the “layoff flag” data could reveal that Hispanic and non-Hispanie employees have been “flagged” for layoff in the same numbers; at the same time; and at the same rate. Either way, this layoff data “might cast light” on the allegations that Bashas’ has discriminated against Hispanics in both wages and promotions. See Tedder & Associates, 77 F.3d at 1169 (internal quotation marks and citation omitted). In sum, although the parameters of relevancy are broad in the context of EEOC subpoenas, they are not boundless. Consequently, while nearly all of the subpoenaed data falls within the expansive definition of relevancy here, a few subsets of data do not. Assuming for the moment that the court ultimately grants enforcement of the May 28, 2008 EEOC subpoena, that subpoena must be modified so as to remove any requests for Bashas’ employee data relating to gender and union affiliation details of any type. In all other respects, the EEOC has met its burden of showing the relevancy of the subpoenaed data.

III. Bashas’Burden

Except for the few requests which the court deems irrelevant, in all other respects, the EEOC has met its initial burden of establishing each prong of the Children’s Hospital test. To recap, the EEOC has shown that: (1) it has the Congressional authority to investigate national origin discrimination in employment; (2) it followed the procedural requirements for issuing the challenged subpoena; and (3) the evidence, with a few narrow exceptions, is relevant and material to its investigation of Bashas’. See Children’s Hospital, 719 F.2d at 1428. Of course, that does not end the inquiry. See Reich, 32 F.3d at 448. Particularly here, where Bashas’ has so vigorously challenged this subpoena and the EEOC’s entire investigation, in many respects the inquiry now is just beginning.

The court still must consider whether the subpoena violates Bashas’ Fourth Amendment rights because that Amendment “offers additional protection to commercial privacy interests.” Id. (citing New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 2642-43, 96 L.Ed.2d 601 (1987)). However, “in the context of an administrative search, the Fourth Amendment’s restrictions are limited[.]” Id. “ ‘The gist of th[at] protection is in the requirement ... that the disclosure sought shall not be unreasonable.’ ” Id. (quoting Morton Salt, 338 U.S. at 652-53, 70 S.Ct. 357) (other citations omitted). “Thus [the May 28, 2008] subpoena will not be enforced if [Bashas’] proves it is overbroad or unduly burdensome.” Id. (citation omitted) (emphasis added); see also Garner, 126 F.3d at 1145 (citations and internal quotation marks omitted) (“[0]nee an agency establishes that is has properly issued a subpoena, it should be enforced unless the party being investigated proves the inquiry is unreasonable because it is overbroad or unduly burdensome.”) Bashas’ burden is a “difficult” one. See Aaron Brothers, 620 F.Supp.2d at 1106 (citing E.E.O.C. v. Maryland Cup Corp., 785 F.2d 471, 477 (4th Cir.1986) (“[T]he burden of proving that an administrative subpoena is unduly burdensome is not easily met.”); E. E.O.C. v. United Air Lines, Inc., 287 F. 3d 643, 653 (7th Cir.2002) (“[T]he employer ‘carries the difficult burden of showing that the demands are unduly burdensome or unreasonably broad.’ ”)). The court will separately examine whether Bashas’ can meet its burden of proving either that the subpoena is overbroad or that compliance would be unduly burdensome.

A. Overbroad?

The subpoena, which is dated May 28, 2008, pet’s exh. 3 at 00001, requests data “for the period May 2, 2004 to present date. ” Id. at 00002, ¶ 1 (emphasis added). Thus, the EEOC is seeking data for slightly more than four years. See Renewed OSC (Doc. 64) at 4:24-26 (“This subpoena requested ... basic employee information ... from May 1, 2004 through the date of the subpoena[.]”). Bashas’ overbreadth argument is solely temporal. It baldly asserts that the subpoena is overbroad because that roughly four year time span is too “expansive[J” Resp.’s Brief (Doc. 103) at 18:23. Pointing out that the Commissioner’s Charge was filed in May, 2007, “[o]ther than to dovetail with the last date similar information was provided in the Parra litigation,” Bashas’ claims “there is no apparent reason on the face of the [C]harge that supports the expansive dates of th[at] request[.]” Resp.’s Brief (Doc. 103) at 18:21-23. Bashas’ further takes the EEOC to task for failing to “provide[ ] any basis for such a broad request — other than to admit that it was conducting a general ‘compliance review’ of Bashas’ as opposed to an investigation of any specific concerns.” Id. at 18:24-27 (quoting Tr. (Doc. 97) at 121:23) (footnote added). If this court holds that the subpoena is enforceable, Bashas’ requests that the court “narrow” its scope by, among other things, excluding requests for “data dating in excess of one year prior to the charge.” Id. at 23:7 and 9.

Bashas’ is impermissibly placing the burden on the EEOC, however. It is Bashas’ burden, not the EEOC’s, to prove that the subpoena is overbroad. Mr. Ra-hill’s isolated comment regarding “compliance review” — the only evidentiary basis for Bashas’ temporal overbreadth argument — does not adequately show that the subpoena is overbroad in terms of its time frame. When asked on cross-examination whether Bashas’ “concern” was about having “no way to defend itself against such an amorphous charge[,]” Mr. Rahill responded:

We looked at this as ... a compliance review. And I wanted the information to verify if [a] violation in fact took place. If it did not take placet,] that would be the end of the investigation.

Tr. (Doc. 97) at 121:21-122:1. Bashas’ attempt to equate Mr. Rahill’s “compliance review” observation to an impermissible “fishing expedition,” is unavailing. See Garner, 126 F.3d at 1146 (citation and internal quotation marks omitted) (“An administrative subpoena ... may not be so broad so as to be in the nature of a ‘fishing expedition.’ ”)

There is nothing about the quoted testimony standing alone, upon which Bashas’ so heavily relies, to support the view that the EEOC is engaging in a impermissible “fishing expedition” here. Moreover, when he characterized the EEOC’s investigation as a “compliance review,” Mr. Rahill was not being questioned about the subpoena’s time frame. Nor, for that matter, was he asked what he meant by the phrase “compliance review.” Thus, Bashas’ has not met its difficult burden of proving overbreadth.

Lastly, Bashas’ offers no justification, evidentiary or otherwise, for limiting the time frame of the subpoenaed data to one year prior to the date of the Charge, ie., May 9, 2006, as opposed to the roughly four years indicated in the subpoena.

Although the court has found that the subpoena’s time frame is not overbroad, as will soon become apparent, it does not necessarily follow that Bashas’ must provide employee data for the entire four year period which the subpoena covers.

B. Unduly Burdensome?

Bashas’ argues that compliance with the May 28, 2008, subpoena would be unduly burdensome because it would be costly and labor intensive. Bashas’ points to several factors to support this argument. First, it does not keep its employee data in any of the three electronic formats, “Excel, Access or ASCII delimited (“csv”), which the subpoena specifies.” See Pet’s exh. 3 at 00002. Therefore, Bashas’ would have to convert nearly all of the requested data from its “Infinium HR [Human Resources] database.” Tr. (Doc. 98) at 132:18. Second, Bashas’ has concerns about the accuracy of that Infinium database because some of the requested fields are incomplete or inaccurate. To assure accuracy and validity, Bashas’ posits that it would have to undertake a “hand review of thousands of personnel files to respond accurately.” Resp.’s Brief (Doc. 103) at 20:24-25. According to Bashas’, such a review “would require significant staffing” at a cost of “approximately $200,000.” See id. at 22:9-10 (citation omitted). Third, Bashas’ asserts that this burden could be “alleviat[ed]” by the EEOC conducting its own “review of [Bashas’] hard personnel folders[.]” Id. at 22:17-18.

Disregarding the cost aspect of compliance, the EEOC asserts that compliance can “only be excused” upon one condition; that is, “if it ‘threatens to unduly disrupt or seriously hinder normal operations of a business.’ ” Pet.’s Brief (Doc. 102) at 23:10-13 (quoting Maryland Cup Corp., 785 F.2d at 479) (emphasis added). The EEOC did not frame its argument in terms of that standard though. Rather, it attacks the competency of Don Adams, Bashas’ Director of Human Resources Development and Native American Affairs (“HR Director”). The EEOC maintains that Adams is not competent to testify as to “[t]he content and capabilities of [Bashas’] computerized data collection system[J” Pet.’s Brief (Doc. 102) at 23:15-16. Additionally, the EEOC contends that compliance is not unduly burdensome because Bashas’ has “admitted ... that it ... ha[s] at least a significant amount of the data requested and could produce it.” Id. at 24:13-14 (emphasis omitted). The EEOC thus concludes that Bashas’ “cries” of undue burden “fall far short of the standard required to avoid compliance with this subpoena.” Id. at 25:9-10.

The Ninth Circuit has yet to consider what constitutes “unduly burdensome” in an EEOC subpoena enforcement action such as this. Two district courts within this Circuit have, though. Each has adopted the Fourth Circuit’s formulation in Maryland Cup, 785 F.2d 471. The Court there found that “[c]ompliance with a subpoena is excused if it ‘threatens to unduly disrupt or seriously hinder normal operations of a business.’ ” Aaron Bros., 620 F.Supp.2d at 1106 (quoting Maryland Cup, 785 F.2d at 479); EEOC v. McCormick & Schmick’s, 2007 WL 1430004, at *7 (N.D.Cal.2007) (same). “Alternatively, if the cost of gathering the information would be ‘unduly burdensome in the light of the company’s normal operating costs, the subpoena should not be enforced.’ ” Id. (quoting Maryland Cup, 785 F.2d at 479); McCormick & Schmick’s, 2007 WL 1430004, at *7 (same). It is not necessary to measure the cost of compliance strictly based upon a company’s normal operating costs, though. As the Seventh Circuit has soundly reasoned, “[i]f the personnel or financial burden on the employer is great compared to the resources the employer has at its disposal, the district court should attempt to alleviate this burden.” EEOC v. United Air Lines, Inc., 287 F.3d 643, 654 (7th Cir.2002) (citation omitted).

This court, too, will be guided by those standards in resolving the issue of whether it would be unduly burdensome for Bashas’ to comply with the May 28, 2008, EEOC subpoena. At the same time, however, the court recognizes and endorses the view that “[w]hat is unduly burdensome depends on the particular facts of each case and no hard and fast rule can be applied to resolve the question.” See id. at 653 (internal quotation marks and citation omitted). Thus, while there is some flexibility in determining what constitutes an undue burden, there is none in terms of Bashas’ burden of proof as the respondent. Bashas’ has a “difficult” burden to meet. See Aaron Bros., 620 F.Supp.2d at 1106 (citations omitted).

In the present case, the EEOC asserts that “[c]ompliance with [its] administrative subpoena should only be excused” if that first prong — disruption of business — is met. Pet’s Brief (Doc. 102) at 23:10-13 (quoting Maryland Cup Corp., 785 F.2d at 479) (emphasis added). Disruption of business is not the only way to establish that it would be unduly burdensome to comply with an agency subpoena, as is evident from Maryland Cup. Moreover, it is cost, not disruption of its business, which is the crux of Bashas’ undue burden argument. Thus, because Bashas’ bears the burden of proving an undue burden, this court will concentrate, as did Bashas’, on the cost aspect of compliance.

Preliminarily though, the court rejects Bashas’ suggestion that the subpoena is unduly burdensome because it must be provided in one of three formats — “Excel, Access, or ASCII[.]” Resp.’s Brief (Doc. 103) at 20:23. That is an inaccurate characterization of the subpoena. The subpoena states that the data, “may be written” in one of those three formats. Pet’s exh. 3 at 00002, ¶ 1 (emphasis added). Indicating some leeway on the format issue, the subpoena further states that “[o]ther formats may be acceptable if approved by the EEOC prior to submission.” Id. The EEOC repeated that option in a February 21, 2008, letter to Bashas’ counsel. See Pet’s exh. 13, at 00001. The court thus finds that Bashas’ has not proven that compliance would be unduly burdensome based solely upon the format in which the subpoenaed data should be provided.

The bulk of Bashas’ undue burden argument — the overall cost of compliance — carries far more weight. Bashas’ makes that argument relying solely upon the testimony of Don Adams, Bashas’ HR Director. The EEOC argues that “Mr. Adams is not competent to address the computer system[,]” however. Pet’s Brief (Doc. 102) at 24:8-9. Hence, Bashas’ has failed to produce any “evidence that complying with the subpoena would be unduly burdensome.” Id. at 22:17-18.

To show Mr. Adams’ supposed lack of competency, the EEOC points out that when asked about his background in information technology (“IT”), Mr. Adams’ responded, “Solely as a user[.]” Tr. (Doc. 98) at 158:21. Further, the EEOC notes that Mr. Adams has not had any training or formal education in IT. Id. at 158:22-159:1. Grasping at straws, the EEOC challenges Mr. Adams’ competency because he does not know the number of employees in Bashas’ IT Department. See id. at 158:16-17. The EEOC thus faults Bashas’ for not “producing] anyone who actually works in its [IT] Department”— someone it describes “who could actually testify about the contents or technical capabilities of its electronic database.” Pet’s Brief (Doc. 102) at 23:18-22.

Federal Rule of Evidence 601 presumes witness competency, stating in relevant part that “[e]very person is competent to be a witness except as otherwise provided in these rules.” Fed.R.Evid. 601. That Rule must be read in conjunction with Rule 602, however, providing that “[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” Fed.R.Evid. 602. Relatedly, Rule 701, limits opinions of lay witnesses, such as Mr. Adams, to, inter alia, “opinions rationally based on the perceptions of the witness[J” Fed. R.Evid. 701.

As the following review of Mr. Adams’ testimony makes abundantly clear, he is competent to testify about the contents and capabilities of the Infinium database as they relate to providing the subpoenaed information. It is equally clear that he has personal knowledge of the matters upon which he is testifying. Likewise, clearly Mr. Adams’ opinions are “rationally based” upon his “perceptions” gained by working with that database over the years. The EEOC’s argument to the contrary, ie., Mr. Adams’ is not competent to testify about the foregoing matters, thus is wholly unavailing and borders on the frivolous.

Despite not working in Bashas’ IT Department, Mr. Adams’ demonstrated a strong working familiarity with the “Infinium HR payroll database[,]” where the subpoenaed information is available. See Tr. (Doc. 98) at 132:13-18. “Since 1990[,]” Bashas’ has been using that database to “input [employee] data[.]” See id. at 132:18-21. As “the project manager for human resources projects[,] ... particularly] ... projects ... hav[ing] to deal with IT,” and “[a]s a project manager who’s working on efforts to improve HR processes, programs, [and] consistency[,]” Mr. Adams gained personal knowledge of both the contents and limitations of the Infinium database. See id. at 126:1-3; 133:3-4.

Based upon his understanding and familiarity with the Infinium database, Mr. Adams testified that some of the requested data fields were “incomplete[.]” Id. at 133:14-20. For example, in 2002, when Bashas’ began a tuition reimbursement program, Mr. Adams searched the Infinium database “to determine who within [Bashas’] had education levels above high school level.” Id. at 134:1-2. Education levels were “very intermittent” to the point of there being “almost no data whatsoever ]” for that field. Id. at 134:3-4. Education levels would, instead, be found in Bashas’ hard copy personnel folders. Id. at 134:6-8. Similarly, Mr. Adams testified that in the Infinium database, information regarding “performance rating! ] ... is extremely incomplete, not used.” Id. at 134:15-16.

Not only are certain fields in the Infinium database inaccurate or incomplete, but Mr. Adams opined that that database has “problems with validity!.]” Id. at 134:17-18. Those problems were revealed to Mr. Adams in 2002 while he was “creating] a training database for Bashas’! ]” to insure that it was “keepfing] a record of [its] training!,]” and meeting any “mandatory [training] requirements.” Id. at 134:17-135:1. After “designing] a catalog of classes and currículums” to support its “training efforts,” in the fall of 2002, the Infinium database “software wouldn’t allow [them] to interface with it.” Id. at 135:2-9. The inability to interface was due to the fact that at that time, the Infinium system listed “22,000 retail positions!.]” Id. at 135:7-8. Now, after rewriting its job descriptions, Bashas’ has “perhaps 52 to 80 positions ... nowhere close to 22,000.” Id. at 135:16-18. Mr. Adams “assumfed]” that to match those 22,000 position codes with the far less number of current job titles would entail “constructing] a duplicate database!.]” Id. at 137:12-13. In light of the foregoing, when asked whether “position and job codes ... would be accurately in the system in electronic format!,]” Mr. Adams candidly responded that he could not “tell ... that the job code would be correct since initially it was used incorrectly.” Id. at 140:18-141:1.

Similarly problematic is the inaccuracy of the pay rates in the Infinium system, as testified to by Mr. Adams. He is “not certain” that the “pay rate” in the Infinium system “would be correct.” Id. at 141:6-7. Mr. Adams “doubtfed]” that the “validity” of the pay rates “would be 100 percent! ]” prior to 2005, because then Bashas’ had a “proliferation of position codes and perhaps six, seven different individuals keypunching in those rates!.]” Id. at 141:12-15. The situation changed in 2006. “[B]y the end of [that year]!,]” Bashas’ “had implemented [its] electronic hiring management system,” which, among other things, “force[d] consistency” in hiring. Id. at 144:1-3. Although there are inaccuracies in the Infinium database regarding job codes, job titles, and pay rates, Mr. Adams agreed that such information “would be accurately listed in the hard copy files of [Bashas’] employees!.]” Id. at 142:17-20.

Another field for which the subpoena seeks electronic data is “ethnic id [identification]!.]” See Pet.’s exh. 3 at 00003 (emphasis omitted). Mr. Adams became aware of “some problems” with that field while working on a project to “bring in tax credits for [Bashas’] Native American stores.” Tr. (Doc. 98) at 138:25-139:2. He found that if a Bashas’ employee did not “self-identify” their ethnicity, the Infinium system “automatically defaulted] ... to Caucasian!]” for the ethnic identification field. Id. at 140:1-2. For “quite a period of time!,]” including during 2005, that default to Caucasian was the practice at Bashas’, although it is not “currently!.]” Id. at 140:3-7. In sum, Mr. Adams’ specifically identified six fields in Bashas’ electronic employee data base which are inaccurate: (1) ethnic identification; (2) position code; (3) education; (4) performance rating; (5) job codes; and (6) pay rate.

After eliciting testimony from Mr. Adams on these inaccuracies or incomplete fields in the Infinium system, he was generally asked about his “concerns” for “the accuracy of the electronic data! ] • ■ ■ from 2004 ... to 2010!.]” Id. at 143:21-23. Noting that Bashas’ has “been making real attempts to incrementally do a better job” with respect to the accuracy of its electronie employee data, Mr. Adams nevertheless expressed “grave concerns for 2004 and 2005.” Id. at 143:25-144:1.

Mr. Adams did not express those same “grave concerns” for 2006, however, because, as mentioned earlier, “by the end of’ that year Bashas’ “had implemented” an electronic “hiring management system[.]” Id. at 144:1-2. That system “in a lot of ways ... force[d] consistency with how [Bashas’] hired, and also insured that proper on-boarding forms were being completed and [that] [Bashas’] had a gatekeeper in place[,]” Mr. Adams opined. Id. at 144:2-5. “By 2008,” Mr. Adams pointed out that Bashas’ “had installed a centralized timekeeping software[,]” which “integrate[s] with [its] Infinium database.” Id. at 144:6-9.

“So by 2008[,]” with “the applicant tracking [system][,] the hiring management systemf,]” which “connects] or passes data right into [Bashas’] database[,]” and the timekeeping software “that’s [also] connected directly to the [Infinium] database[,]” Mr. Adams was “fairly certain that the [2008 electronic] data is pretty darn good data.” Id. at 144:5-14. Besides vouching for the accuracy of Bashas’ 2008 employee electronic data, Mr. Adams specified several other fields of electronic data which Bashas’ could produce with accuracy, regardless of year. Those are an employee’s: (1) number; (2) last name; (3) previous name; (4) date of birth; and (5) location code. See id. at 138:9-14; 138:20-22; 140:14-17. Additionally, Mr. Gregory Tucek, Bashas’ in-house counsel, testified that its electronic field data includes date of hire and seniority date. See Tr. (Doe. 41) at 89:21-24.

Bashas’ retains its employee information in two formats-hard copy and scanned documents, accessed through a personal computer, which can also be printed. See id. at 131:2; and 131:9-13. Using “ ‘Content Manager’ software, Bashas’ has scanned its hard copy personnel folders for 2002, 2003 and 2007,” and is “in the process of scanning [the] 2008” hard copy personnel files into that software. Id. at 131:2-5. Mr. Adams acknowledged that in the process of scanning Bashas’ personnel folders, the years 2004 through 2005 were skipped. See id. at 153:4-15.

Particularly because the subpoena seeks information for the year 2004-2005, inter alia, initially the court found it curious that those folders were not scanned in chronological order. Mr. Adams convincingly explained, however, that because he only recently “started overseeing the HR records department[,]” he “do[es] not know the reason behind what years were scanned.” Id. at 153:16-18. In the complete absence of any proof that the documents were scanned in an order so as to thwart the EEOC subpoena, the court declines to attribute an ulterior motive to Bashas’ in that regard.

In any event, although some of Bashas’ employee information has been scanned, and thus is electronically stored, consistent with his testimony detailed above, Mr. Adams’ opined that if Bashas’ were to respond to the subpoena, “[t]he best source of information would be in [its] personnel foldersf,]” as opposed to in an electronic format as the subpoena demands. Id. at 130:17-18; see also id. at 152:22-153:3. Further, compliance with the subpoena’s request for information in an electronic format would involve “a very manual process[ ] ... [t]o insure the validity of the data[.]” Id. at 145:6-14.

After being “asked to determine ... how much time and effort it would take to insure that the data that [Bashas’] had in [its] database was valid[,]” Mr. Adams met with the HR supervisor and Bashas’ “top HR records clerk.” Id. at 145:21-25. During that discussion, they concluded that it would take an “average” of “23 minutes” to do “a rigorous job” of reviewing the electronic database “to insure” that its contents “actually matched what was in the [hard copy] personnel jacket.” Id. at 146:3-4; 147:4-7. Using that 23 minute average review time, Mr. Adams next looked at the number of Bashas’ employees for the years 2004 through 2007, and multiplied that number by the 23 minute average. See id. at 147:13-14. Then, based upon a $13.85 average hourly cost of a Bashas’ HR records employee, Mr. Adams opined that it would take “about $100,000 worth of time” to conduct this manual review. Id. at 147:17.

The EEOC does not, in its closing brief, in any way contest Mr. Adams’ calculations or methodology. But, on cross-examination, the EEOC did challenge one aspect of Mr. Adams’ computations. When asked, “What was the cost per hour in 2008[,]” Adams acknowledged that he did not know. See id. at 156:6-7. That simple admission, especially without any context whatsoever, is not a sufficient basis for disregarding Mr. Adams’ calculations as to the cost of compliance.

Shifting to Bashas’ ability to pay for the review of employee information, whether in scanned or hard copy, Mr. Adams was asked whether “Bashas’ has right now, $200,000 to fund that type of projeet[.]” Id. at 149:7-8. It is the answer, not the question which is evidence, however. See Ninth Circuit Manual of Model Jury Instruetions-Civil, 1.7(2) (“Questions ... by lawyers are not evidence.”) Therefore, because Mr. Adams himself did not testify to that $200,000.00 amount, the court is disregarding that particular dollar amount.

Moreover, as mentioned earlier, Mr. Adams opined the “total” it would take for a review of either hard copies or scanned personnel files for the years 2004-2007, would be “about $100,000 worth of time spent.” Tr. (Doc. 98) at 147: 147. That $100,000.00 amount correlates to the average review time based upon the number of employees, years of review, and cost per hour for review, as testified to by Mr. Adams, whereas $200,000.00 does not.

Regardless, there is no basis for discounting Mr. Adams’ testimony as to Bashas’ current financial state. In fact, the EEOC does not dispute Mr. Adams’ testimony on this point. Bashas’ bankruptcy reorganization plan “has been approved and [it] [is] operating [under] that plan[.]” Tr. (Doc. 98) at 128:9-10. Mr. Adams’ described Bashas’ as being “staffed very leanly.” Id. at 128:16. Further, he denied that Bashas’ has any “free cash for discretionary spending[.]” See id. at 129:4-6. Bashas’ “owe[s] creditors literally hundreds of millions of dollarsf,]” and both its office support and retail level staffs are “stretched to the max[.]” Id. at 149:18-21. Thus, Bashas’ has “tremendous constraints upon [it] as far as money [it] ha[s] to spend.” Id. at 149:12-13. Given Bashas’ financial situation, as Mr. Adams recounts it, Bashas’ does not have the funds to comply with the subpoena by providing the EEOC with all of the requested data in electronic format. See id. at 149:18. When asked where Bashas’ would find the money to perform the review process he described, Mr. Adams answered that he “honestly” did not know. Id. at 150:7. Bashas’ has “established budgets and ... they’re to a bare minimum.” Id. at 150:8-9.

The EEOC’s characterization of this proof notwithstanding, Bashas’ has done more than simply “cry” that full compliance with the EEOC’s May 28, 2008, subpoena would be unduly burdensome. See Pet’s Brief (Doc. 102) at 25:9. Through the testimony of its HR Director, Mr. Adams, Bashas’ has shown that the personnel and financial burden of full compliance would be “great compared to the resources [Bashas’] has at its disposal[.]” See United Air Lines, 287 F.Bd at 654 (citation omitted). This proof by Bashas’ is unrefuted in every significant aspect, as the foregoing discussion demonstrates.

EEOC v. Randstad, 765 F.Supp.2d 734 (D.Md.2011), lends further support to this court’s view that it would be unduly burdensome for Bashas’ to fully comply with the May 28, 2008, subpoena in its current form. Much like the present case, to respond to the EEOC’s subpoena in Randstad, the employer claimed that it would have “to produce information as to over 100,000 job placements[;]” and that “to collect th[at] information, it would have to create records that do not exist as it does not maintain a specific database of job descriptions, job orders or essential job functions of temporary assignments.” Id. at 742 (citations omitted). Based upon the employer’s “estimate[ ] that compiling” the subpoenaed “information would take at least 120 hours of time and cost between $14,000 and $19,000[,]” the Randstad Court held that certain of the EEOC’s subpoena requests were “unduly burdensome.” Id. If compliance with the EEOC subpoena in Randstad was unduly burdensome, certainly compliance here would be unduly burdensome where the cost, from both a monetary and personnel standpoint, would be far greater than in Randstad.

The only two cases to which the EEOC cites, E.E.O.C. v. Citicorp Diners Club, Inc., 985 F.2d 1036 (10th Cir.1993); and E. E.O.C. v. Bay Shipbuilding Corp., 668 F.2d 304 (7th Cir.1981), in its attempt to show that Bashas’ has not met its burden of proof on the issue of undue burden are readily distinguishable. At every step of the enforcement proceeding, in Bay Shipbuilding, 668 F.2d 304, there was a complete absence of proof by the respondent employer as to how compliance with the EEOC’s subpoena therein might be unduly burdensome. See id. at 313. In sharp contrast to Bay Shipbuilding, where, among other deficiencies, the employer did not “present any affidavits to support its conclusionary assertion” that compliance with that EEOC subpoena would be unduly burdensome, id., Bashas’ has offered ample concrete proof to that effect.

Likewise, in contrast to Citicorp Diners Club, 985 F.2d 1036, whether the employer’s evidence of undue compliance was deficient because, inter alia, it did “not offer[] any specific estimate of [the] cost involved[ ]” in compliance, id. at 1040, Bashas’ did offer such proof through Mr. Adams’ testimony earlier discussed. Also in contrast to Citicorp Diners Club, here, Bashas’ has done more than show that compliance would be merely “inconvenient and involve some expense.” See id. Simply put, neither of these cases alter this court’s opinion that under the unique facts herein, it would be unduly burdensome for Bashas’ to fully comply with the subpoena in its current form.

Before deciding how and to what extent it may modify or narrow the May 28, 2008, subpoena, the court must resolve the core issue of whether Bashas’ has shown abuse of process by the EEOC. After all, if Bashas’ prevails on that argument, Bashas’ is seeking to have this court deny enforcement altogether of that subpoena. Under that scenario, there would be no need to delve into the modification issue. So, for the moment the court will hold in abeyance the issue of possible modification and turn, instead, to the abuse of process issue.

C. Abuse of Process

Enforcement of the EEOC’s May 28, 2008, subpoena “would be an abuse of process[;]” hence this court should deny enforcement of that subpoena in its entirety, Bashas’ argues. See Resp.’s Brief