UNIVERSITY OF PENNSYLVANIA, PETITIONER V. UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION No. 88-493 In the Supreme Court of the United States October Term, 1988 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit Brief for the Respondent in Opposition TABLE OF CONTENTS Questions Presented Opinions below Jurisdiction Statutory provisions involved Statement Argument Conclusion Appendix OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1-A27) is reported at 850 F.2d 969 (3d Cir. 1988). The orders of the district court (Pet. App. A34-A35) are unreported. The EEOC's order refusing to modify its subpoena (Pet. App. A29-A33) is not yet reported. JURISDICTION The judgment of the court of appeals was entered on June 23, 1988. A petition for rehearing was denied on August 11, 1988 (Pet. App. A28). The petition for a writ of certiorari was filed on September 19, 1988. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED The relevant provisions of Sections 706(b), 709(a) and 710 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(b), 2000e-8(a), 2000e-9, and of Section 11 of the National Labor Relations Act, 29 U.S.C. 161, which is incorporated by reference in Title VII, are reproduced in an appendix to this brief (pages 1a-3a, infra). QUESTIONS PRESENTED 1. Whether there is a qualified privilege that permits a university to withhold peer review materials that are responsive to an EEOC subpoena and relevant to a charge that the university has violated Title VII of the Civil Rights Act of 1964 by denying a professor tenure on the basis of her sex and national origin. 2. Whether the district court was obligated to dismiss the EEOC's subpoena enforcement action in deference to petitioner's anticipatory suit -- which was brought when the enforcement action was imminent for the purpose of avoiding unfavorable legal precedent. STATEMENT 1. In 1985, petitioner denied tenure to Rosalie Tung, an Associate Professor in the Management Department of petitioner's Wharton School. Tung filed a charge with the Equal Employment Opportunity Commission, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., alleging that petitioner had denied her tenure because of her national origin and sex. The EEOC began an investigation into this charge. Pet. App. A4-A5. As part of that investigation, the Commission requested a statement of petitioner's position and information relevant to the charge. Petitioner provided some of the information requested, but refused to provide peer review materials relating to Tung and five male candidates who had been considered for tenure. In this case, Tung had been recommended for tenure by the members of her department, but that recommendation was overridden by petitioner's Personnel Committee, assertedly on the basis of her scholarship, the subject of peer review. Consequently, the Commission issued a subpoena duces tecum for (Pet. App. A5): 1. Copies of Tung's tenure file; 2. Copies of the tenure file for the five other candidates considered with Tung for tenure; 3. The identity, tenure status, and qualifications of those individuals who comprised the tenure committees for the University's management department from June, 1984 to the present; and 4. The identity of all members of the University's personnel committee. 2. Petitioner applied for a modification of the subpoena to exclude peer review materials. It also urged the Commission to "adopt a balancing approach reflecting the constitutional and societal interests inherent in the peer review process and * * * all feasible (methods) to minimize the intrusive effects of its investigations" (Pet. App. A30). On April 10, 1987, the Commission denied these requests (id. at A5, A29-A33). If found that the information requested was necessary to determine whether Ms. Tung had been treated differently than those male candidates who had received tenure (id. at A30; see id. at A33). The EEOC also relied on the fact that the Third Circuit had refused to recognize a qualified privilege for peer review materials in EEOC v. Franklin & Marshall College, 775 F.2d 110 (1985), cert. denied, 476 U.S. 1163 (1986). The EEOC refused to apply petitioner's proposed balancing approach in this case, explaining that its statutory obligation to investigate charges of discrimination required it to explore whether reasons advanced by an employer to justify an unfavorable employment decision were pretextual (Pet. App. A32). The Commission advised petitioner that subpoena enforcement proceedings would be initiated unless petitioner complied with the subpoena within 20 days (id. at A33). Three days before the expiration of the 20-day grace period, petitioner brought suit in the United States District Court for the District of Columbia, seeking declaratory and injunctive relief and an order quashing the administrative subpoena. The complaint alleged that the Commission had violated the First and Fifth Amendments to the Constitution and, citing the April 10, 1987 EEOC Determination as evidence of a nationwide rule requiring disclosure of peer review materials, the Administrative Procedure Act, 5 U.S.C. 553. Pet. App. A6. 3. Thereafter, the Commission initiated an action to enforce its subpoena in the United States District Court for the Eastern District of Pennsylvania. On September 1, 1987, the district court entered a brief order denying petitioner's motion to dismiss that action and ordering petitioner to comply with the subpoena (Pet. App. A35). Two days thereafter, the District of Columbia district court denied the Commission's motion to dismiss petitioner's action in that forum. 4. The court of appeals affirmed the Pennsylvania district court's refusal to dismiss this case and its enforcement of the EEOC's subpoena (Pet. App. A1-A27). The district court's decision not to stay its proceedings in deference to petitioner's prior-filed District of Columbia suit was reviewable, the court of appeals held, for abuse of discretion (Pet. App. A4). The panel explained that the so-called "first-filed rule" is not "a rigid or inflexible rule to be mechanically applied" (Pet. App. A14, quoting Pacesetter Systems, Inc. v. Medtronic, Inc., 678 F.2d 93, 95 (9th Cir. 1982)), and that "(b)ad faith * * * and forum shopping have always been regarded as proper bases for departing from the rule" (Pet. App. A14). Viewing the totality of the circumstances, the court of appeals held that the district court had not abused its discretion under the facts of this case. The court of appeals observed that the timing of petitioner's filing indicated "an attempt to preempt an imminent subpoena enforcement" (id. at A16), and that petitioner's "efforts to evade" Franklin & Marshall by commencing its own action in the District of Columbia "violate(d) the equitable basis of the (first-filed) rule" (Pet. App. A18). The court summarized (id. at A18): Because the first-filed rule is based on principles of comity and equity, it should not apply when at least one of the filing party's motives is to circumvent local law and preempt an imminent subpoena enforcement action. This conclusion, it continued, was supported by the need to assure prompt resolution of Title VII claims and the EEOC's obligation to attempt to resolve discrimination suits through conciliation (id. at A18-A19). With respect to the enforceability of the Commission's subpoena, the court of appeals held that its Franklin & Marshall decision foreclosed the claim that the First Amendment relieved petitioner of its obligation to produce peer review materials responsive to the subpoena (Pet. App. A22). /1/ The court also concluded that petitioner had not raised any of several grounds on which an administrative subpoena may properly be challenged (id. at A23-A24). Finally, the court of appeals remanded for consideration of whether petitioner should be permitted to produce the disputed records with the names and identifying information of persons other than Tung redacted (id. at A26-A27). Except to this extent, it affirmed the district court's order enforcing the EEOC's subpoena (id. at 27). ARGUMENT The decision of the court of appeals is correct and fully consistent with the decisions of this Court. It raises no issue on which there is a clear conflict among the circuits, such as might now justify review by this Court. A. 1. Contrary to petitioner's contention, there is no "clear and apparently intractable" conflict on the question "whether confidential peer review materials should be protected against compelled disclosure by the Commission" (Pet. 10). Apart from the Third Circuit's decisions in Franklin & Marshall and this case, only the Seventh Circuit, in EEOC v. University of Notre Dame du Lac, 715 F.2d 331 (1983), has decided whether a university may assert a qualified privilege in response to an EEOC subpoena. On the facts of that case, the Seventh Circuit held only that there was "a qualified privilege protecting against the disclosure of the identities of the academicians participating in the peer review process" (id. at 337-338 (emphasis added)). Here, the Third Circuit has remanded for further proceedings on the question whether the identities of persons participating in Tung's tenure review process may be redacted from documents petitioner has been ordered to produce. It is thus unclear whether the ultimate disposition of this case will conflict with the narrow qualified privilege recognized in Notre Dame. Accordingly, there is no more reason for this Court to grant review now than there was when this Court declined to review the Franklin & Marshall decision. It is true that some courts of appeals have, in private Title VII actions, expressed support for a "balancing" approach toward discovery of various types of peer review information. Gray v. Board of Higher Education, 692 F.2d 901 (2d Cir. 1982); Keyes v. Lenoir Rhyne College, 552 F.2d 579 (4th Cir.), cert. denied, 434 U.S. 904 (1977); Jepsen v. Florida Board of Regents, 610 F.2d 1379 (5th Cir. 1980); Lynn v. Regents of the University of California, 656 F.2d 1337 (9th Cir. 1981), cert. denied, 459 U.S. 823 (1982). Contra, In re Dinnan, 661 F.2d 426 (5th Cir. 1981), cert. denied, 457 U.S. 1106 (1982) (rejecting a balancing test). /2/ That, of course, was also true at the time review was denied in Franklin & Marshall. But in any event, these decisions are not inconsistent with the holdings of either this case or Franklin & Marshall. The EEOC's statutory authority to issue an administrative subpoena in aid of its obligation to investigate charges of discrimination is quite different from an attempt to obtain civil discovery in a private Title VII action. In Title VII, Congress directed the EEOC to investigate charges of discrimination and gave it express statutory "access to, for purposes of examination, and the right to 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" (42 U.S.C. 2000e-8(a)). Congress also gave the EEOC authority to subpoena "any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question" (29 U.S.C. 161, incorporated in 42 U.S.C. 2000e-9; page 2a, infra). While a court called upon to enforce such a subpoena may consider whether an employer has a legal privilege to withhold responsive documents, these statutes do not permit a case-by-case balancing approach. Congress has already drawn that balance in favor of disclosure. The district court has a "responsibility to satisfy itself that the charge (of discrimination) is valid and that the material requested is 'relevant' to the charge, * * * and more generally to assess any contentions by the employer that the demand for information is too indefinite or has been made for an illegitimate purpose." EEOC v. Shell Oil Co., 466 U.S. 54, 72 n.26 (1984). /3/ As the court of appeals noted (Pet. App. A34), petitioner does not contend that the EEOC's subpoena in this case failed to meet these standards, and there was thus no basis on which to question the EEOC's express statutory authority to obtain "any evidence" that is relevant and relates to the charge of discrimination. See Shell Oil, 466 U.S. at 72 n.26. In private civil discovery, by contrast, courts do have authority, under Fed. R. Civ. P. 26(c), to issue orders to protect parties from "annoyance, embarrassment, oppression, or undue burden or expense" and to tailor discovery to the circumstances of a particular case. See also Fed. R. Civ. P. 26(b)(1). Though their reasoning does not always recognize this distinction, the civil discovery cases can be reconciled with Franklin & Marshall on this basis. /4/ Moreover, in most of these cases, the courts have found in favor of production of peer review information, reasoning that if a university uses the peer review evaluations to justify an unfavorable employment decision, the plaintiff should be given an opportunity to discover them to demonstrate that the explanation was pretextual. E.g., Gray, 692 F.2d at 906-907; Lynn, 656 F.2d at 1342-1343. /5/ The experience of the lower courts since the Court's refusal to review Franklin & Marshall also belies petitioner's claim that any disagreement among the circuits regarding the EEOC's subpoena power is urgent (Pet. 13). Apart from this case, petitioner has cited no decision in the three years since Franklin & Marshall was decided which has addressed the issue whether a university may assert a qualified privilege for peer review information in response to an EEOC subpoena, and we are aware of none. This record suggests that any conflict among the courts of appeals is not so pressing as to require the Court's attention at this time. /6/ 2. There is no inconsistency between the Third Circuit's refusal to balance away any portion of the EEOC's express investigatory authority and any of this Court's decisions. See Pet. 15-17. In Sweezy v. New Hampshire, 354 U.S. 234 (1957), and Gibson v. Florida Legislative Committee, 372 U.S. 539 (1963), this Court considered the limits of the power of state legislatures to conduct open-ended investigations of allegedly subversive activity. Both cases held that there was an insufficient state interest shown for particular inquiries which tended to interfere with First Amendment expression and association. None of the features of those cases which the Court found decisive are present here. The EEOC's jurisdiction to investigate is not "broad and ill-defined" (Sweezy, 354 U.S. at 245), nor is there any question whether Congress "wants (the relevant) questions answered" (id. at 254). /7/ Congress has expressly authorized the EEOC to investigate claims of discrimination, and has specified the subject of the investigation -- a particular charge of discrimination. Congress has also indicated that the policy against discrimination that these investigations serve is one of the "highest priority." Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974). Further, by contrast to the free-form legislative investigations in issue in Sweezy and Gibson, the procedures established by Title VII guarantee the necessity for and relevance of materials sought in an administrative subpoena. Under Title VII, only evidence that is relevant to the charge on which an investigation is based can be subpoenaed. See Shell Oil, 466 U.S. at 68-69. A party being investigated may request the Commission to revoke the subpoena if the evidence requested "does not relate to any matter under investigation" and the EEOC is required to do so if it makes such a finding. 42 U.S.C. 2000e-9, incorporating 29 U.S.C. 161. See pages 1a-2a, infra. A district court asked to enforce a subpoena in turn must determine that the charge is valid and the material requested is relevant. Shell Oil, 466 U.S. at 72 n.26. These procedures foreclose any finding, like that on which Gibson was based, of an "utter failure to demonstrate the existence of any substantial relationship between" (372 U.S. at 554-555) a request for information and a legitimate subject of inquiry. In this case, the EEOC has specifically explained the basis for its request for information on petitioner's peer review of Tung and those considered with her: "The information is necessary in order to determine whether Ms. Tung was treated differently than those who received tenure" (Pet. App. A30), and the relevance of the subpoenaed materials for that purpose is not in dispute. Finally, whereas Sweezy and Gibson involved inquiries into associations and opinions of those called to testify, "the EEOC's role is to determine whether or not there is evidence to support a charge that an employment decision was based upon reasons protected by" Title VII. (Franklin & Marshall, 775 F.2d at 117). In view of these features of the statute, there can be no substantial claim that the Title VII subpoena procedure resembles the investigations involved in Sweezy and Gibson or involves any violation of constitutional rights. /8/ 3. More to the point are cases in which this Court has emphasized that privileges are not favored because they "contravene the fundamental principle that '"the public * * * has a right to every man's evidence." ' " Trammel v. United States, 445 U.S. 40, 50 (1980), quoting United States v. Bryan, 339 U.S. 323, 331 (1950). See Herbert v. Lando, 441 U.S. 153, 175 (1979); United States v. Nixon, 418 U.S. 683, 709-710 (1974). In Branzburg v. Hayes, 408 U.S. 665 (1972), and Herbert v. Lando, supra, this Court rejected claims comparable to petitioner's for First Amendment privileges covering, respectively, a newsman's confidential sources and the editorial processes of those responsible for an allegedly libelous publication. Factors comparable to those relied on in Branzburg and Herbert would also compel rejection of petitioner's proposed privilege. /9/ One may acknowledge "the importance of confidentiality in the peer review process," as Franklin & Marshall did, but nevertheless recognize that it must yield "(i)n the face of the clear mandate from Congress" (775 F.2d at 115). See Herbert v. Lando, 441 U.S. at 171-174 (analyzing claims that editorial exchanges would be chilled absent a privilege). The First Amendment does not prohibit incidental burdens on First Amendment interests that result from the enforcement of civil laws of general applicability. Branzburg, 408 U.S. at 682. Even the litigation inherent in a "balancing approach" or "qualified privilege" would undercut Title VII's requirement that charges of discrimination be resolved promptly (Pet. App. A19). See Branzburg, 408 U.S. at 705 (reporters privilege would embroil courts in "preliminary factual and legal determinations"). These considerations, among others, foreclose recognition of a qualified privilege under the standards previously applied by this Court. /10/ B. The court of appeals' ruling that the district court did not abuse its discretion by refusing to stay or dismiss this suit in deference to petitioner's anticipatory District of Columbia action is also correct and does not conflict with the decisions of other courts of appeals or of this Court. Its application of general principles of comity and judicial discretion to the particular facts of this case raises no legal issue warranting this Court's review. The court of appeals was fully justified in describing the so-called "first-filed rule" as "grounded on equitable principles" (Pet. App. A15). When two federal courts have concurrent jurisdiction of a dispute, "no precise rule has evolved," though "the general principle is to avoid duplicative litigation." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). Consistent with its underpinnings, the "first-filed rule" is not "a rigid or inflexible rule to be mechanically applied" (Pet. App. A14, quoting Pacesetter Systems, Inc. v. Medtronic, Inc., 678 F.2d 93, 95 (9th Cir. 1982)). As the many decisions cited in the court of appeals' opinion reflect, the courts of appeals are in agreement that discretion is involved in the application of this "rule." See Kerotest Mfg. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183-184 (1952). /11/ As the court of appeals also observed, the equities underlying the customary presumption in favor of the first-filed suit are not persuasive when, as in this case, a party has filed an action in anticipation of an imminent enforcement suit, which has been withheld to allow a grace period for voluntary compliance. Pet. App. A15; Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 219 (2d Cir. 1978), cert. denied, 440 U.S. 908 (1979); Tempco Elec. Heater Corp. v. Omega Engineering, 819 F.2d 746, 749-750 (7th Cir. 1987). In fact, an overly rigid adherence to the first-filed rule in that situation would be inconsistent with principles of comity and wise judicial administration, since it would encourage unseemly races to the courthouse (Tempco, 819 F.2d at 750). Cf. Perez v. Ledesma, 401 U.S. 82, 119 n.12 (1971) (Brennan, J., concurring in part and dissenting in part) ("The federal declaratory judgment is not a prize to the winner of a race to the courthouse * * * ."). The court of appeals cited several factors in support of its holding that the district court was within its discretion in not applying the first-filed rule to this case. They included the timing of petitioner's suit (three days before the expiration of the grace period for voluntary compliance of the Commission's subpoena), petitioner's acknowledgment that Franklin & Marshall "presented a problem" to petitioner's plan to contest the subpoena (Pet. App. A17), the fact that petitioner's suit "feature(d) a direct challenge to the * * * subpoena," and "two themes emphasized by Congress when it enacted Title VII," the requirement that claims be promptly resolved and the EEOC's obligation to resolve disputes through conciliation. Pet. App. A18. The court of appeals emphasized that the first-filed rule "will usually be the norm" and that departures from that rule must be justified by "exceptional circumstances" (id. at A19). This carefully circumscribed and factbound ruling represents no "departure from the standards applied in other circuits" (Pet. 19), does not threaten to "swallow up the general rule" favoring the first suit filed (Pet. 18), and does not present any substantial legal issue warranting review by this Court. The court of appeals' reliance on the fact the petitioner chose its District of Columbia forum in an attempt to avoid the precedential effect of Franklin & Marshall does not conflict with Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). See Pet. 17-18. Piper did not involve parallel suits pending in separate forums or the principles of comity that are applicable in that situation. Piper's holding that a plaintiff may not defeat dismissal of an action under the doctrine of forum non conveniens by showing that a dismissal will lead to the application of less favorable law does not help petitioner in this case. On the contrary, the Court "emphasized the need to retain flexibility" in applying forum non conveniens (454 U.S. at 249), a point inconsistent in spirit with petitioner's advocacy of rigid application of the first-filed rule. Further, the Court indicated that it meant to preserve the possibility of dismissal when a plaintiff has chosen a particular forum "solely in order to harass the defendant or take advantage of favorable law" (id. at 249 n.15). Piper does not, in short, suggest that federal courts must ignore efforts, like petitioner's, to forum shop for favorable law. CONCLUSION The petition for writ of certiorari should be denied. Respectfully submitted. CHARLES FRIED Solicitor General CHARLES A. SHANOR General Counsel Equal Employment Opportunity Commission NOVEMBER 1988 /1/ The court of appeals held that petitioner could raise its First Amendment claim but not its APA arguments as a defense to enforcement of the subpoena (Pet. App. A21, A23). The court reasoned that even if the EEOC had adopted a rule that was invalid under the APA, the Commission would still have statutory authority to issue and enforce its subpoena in this case (id. at A24). /2/ All of the district court and state court decisions cited in the petition (at 13 n.16) are also private civil actions, not EEOC subpoena enforcement proceedings. /3/ See United States v. Powell, 379 U.S. 48, 57-58 (1964); United States v. Morton Salt Co., 338 U.S. 632, 652-654 (1950). /4/ We take no position on the question whether a court may properly withhold relevant peer review materials from a private litigant in a civil action or, if so, what standards should apply. However those issues are resolved, the standards that govern a private litigant's discovery do not limit the EEOC's express statutory powers. /5/ In numerous cases, courts have reviewed peer review materials to determine claims of discrimination. Zahorik v. Cornell University, 729 F.2d 85, 89-91 (2d Cir. 1984); Banerjee v. Board of Trustees, 648 F.2d 61, 64 n.5 (1st Cir.), cert. denied, 454 U.S. 1098 (1981); Smith v. University of North Carolina, 632 F.2d 316, 323-331 (4th Cir. 1980); Manning v. Trustees of Tufts College, 613 F.2d 1200, 1203-1204 (1st Cir. 1980). /6/ Regardless of what approach is taken to peer review materials, it will be impossible to guarantee those participating in tenure decisions that peer review materials "will (be) confidential" (Pet. 13). Even under a balancing test, those materials would be discoverable when a university relies on peer review to justify denying tenure. Thus, at most, adoption of petitioner's position would provide some unknown degree of additional confidentiality which, because petitioner's proposed balancing test could not be applied until after the fact, will be immeasurable when the process is underway. If they are aware of the law, persons participating in tenure decisions must contemplate the possibility that tenure review materials will be discoverable if a charge of discrimination is made, and that cannot change. See Branzburg v. Hayes, 408 U.S. 665, 702-703 & n.39 (1972) (emphasizing the dubious worth of a reporters privilege applied ad hoc). Moreover, the issue raised in the petition does not bear on a university's primary conduct; it is clear that discrimination is forbidden. /7/ In Sweezy, the state legislature constituted the state attorney general as a "one-man legislative committee" and established no meaningful limits on the scope of his investigation (354 U.S. at 237 & n.4). Against this background, this Court stated that it could not determine whether the particular questions Sweezy refused to answer were authorized and held, accordingly, that imposition of a contempt sanction would represent a denial of due process (354 U.S. at 254-255). /8/ Justice Powell's concurrence in Regents of the University of California v. Bakke, 438 U.S. 265, 312 (1978), was addressed to the importance of a diverse study body, and did not suggest that universities were entitled to a privilege not available to other employers that are the subject of an EEOC investigation. It is also noteworthy that, in Bakke, the Court scrutinized a university's decision whether to admit a student and held that that decision had been unlawful. Bakke does not suggest that universities are at all exempt from investigations into the possibility that they have discriminated against members of the academic community. /9/ Inquiry into petitioner's peer review of Tung relates to "a specific claim of injury arising from" a tenure decision that is alleged to have been discriminatory (Herbert v. Lando, 441 U.S. at 174). Particularly when, as in this case, a university justifies denying tenure on the basis of a process of peer review, information on how that process operated is directly relevant to a claim of discrimination. Thus, Title VII "necessarily contemplate(s) examination of" the peer review process to determine whether it is pretextual (id. at 172). See Lynn, 656 F.2d at 1347-1348; Gray, 692 F.2d at 905-906. In discharging its statutory mandate to investigate charges of discrimination, the EEOC is entitled to gather "direct as well as indirect evidence" (Herbert v. Lando, 441 U.S. at 172). "(A)n alleged perpetrator of discrimination cannot be allowed to pick and choose the evidence which may be necessary for an agency investigation" (Franklin & Marshall, 775 F.2d at 116). /10/ Congress acted specifically to extend Title VII to academic institutions, a fact which cautions against judicially-created exceptions from its enforcement provisions for this class of employer. The immunity from Title VII originally extended to academic institutions was removed in 1972 based upon Congress's finding that "discrimination in educational institutions is especially critical." H.R. Rep. 92-238, 92d Cong., 2d Sess. 19-20 (1971). It is also noteworthy that the EEOC is prohibited, under threat of criminal penalties, from disclosing subpoenaed records to the public. 42 U.S.C. 2000e-8(e). The only disclosures permitted are to charging parties or witnesses where disclosure is deemed necessary for securing appropriate relief, or interested government agencies. 29 C.F.R. 1601.22. See EEOC v. Associated Dry Goods Corp., 449 U.S. 590 (1981). /11/ Petitioner suggests (Pet. 20) that West Gulf Maritime Ass'n v. Deep Sea Local 24, 751 F.2d 721 (5th Cir.), cert. denied, 474 U.S. 844 (1985), requires dismissal of the second-filed suit, regardless of the circumstances. However, West Gulf quotes with approval many decisions that make clear the equitable and flexible basis of the "first-filed rule" and adopts their approach. Appendix