On September 29, 2016, the United States Supreme Court granted certiorari in McLane Co. Inc.EEOC, case number 15-1248, a case that asks the Court to resolve a split in the Circuit Courts of Appeals on the proper standard of review applied to a district court decision to quash or enforce a subpoena issued by the United States Equal Employment Opportunity Commission (“EEOC”). The decision by our highest court on the correct standard of review will have important implications for businesses, because if a litigant is displeased with a lower court’s decision, it may get two bites at the apple. Such an outcome will likely encourage more appeals, drawn-out investigations and increase legal fees.

On the other hand, if the Supreme Court decides that the Ninth Circuit was wrong and that a deferential standard of review (as opposed to a de novo standard) is appropriate, the losing side in future cases is more likely to accept the decision of the lower district court, knowing its chances of winning on appeal are slim.

Former EEOC General Counsel, Don Livingston, stated that “employers do reasonably well in convincing federal district court judges to narrow EEOC investigative subpoenas.” According to Livingston, “The more deference given to the District Court Judges by the Courts of Appeal, the more the EEOC will be required to tailor requests to the matter under investigation…This means less work for HR professionals in responding to EEOC’s requests for information and subpoenas, and less risk that the EEOC investigation will stray into areas not covered by the charge1 under investigation.” Consequently, businesses are rooting for the Supreme Court to decide that the appeals courts should listen more closely to the district courts.