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Phipps v. Wal-Mart Stores, Inc.

United States District Court, M.D. Tennessee, Nashville Division

March 7, 2018

CHERYL PHIPPS and SHAWN GIBBONS, Plaintiffs,
v.
WAL-MART STORES, INC., Defendant.

          Lawson, Judge

          ORDER

          Jeffery S. Frensley, United States Magistrate Judge

         This matter is before the Court upon “Motion of Defendant Wal-Mart Stores, Inc. to Quash the Subpoena to Hay Group, Inc.” Docket No. 164. Defendant has also filed a supporting Memorandum of Law. Docket No. 165. Plaintiffs have filed a Response in Opposition. Docket No. 174. For the reasons discussed below, Defendant's Motion is GRANTED.

         I. THE DISCOVERY MATTER AT ISSUE

         In this employment discrimination class action, Plaintiffs allege that Defendant discriminated against them because of their gender. See Docket No. 1. Among other claims, Plaintiffs claim that “[Defendant's] compensation policies, including its failure to require managers to base pay decisions for individual employees on job-related criteria, such as experience or documented performance, have had an adverse impact upon its female employees in Region 43.”[1] Id. at 12.

         The Hay Group is a third party consultant that worked with Defendant during the time of the Dukes litigation.[2] Docket No. 153, p. 5; Docket No. 165, p. 5. The Parties have been involved in a discovery dispute regarding documents related to the Hay Group's work. See Docket Nos. 152, 153, 163, 174. Those documents have been loosely termed “the Hay Group documents.” Id. In addition to moving to compel production of the Hay Group documents from Defendant, Plaintiffs also served document requests by subpoena on the Hay Group. Docket No. 149-1. The documents requested are:

1. All documents pertaining to the creation and implementation of a new pay classification structure at Defendant's stores, including but not limited to:
a. All questionnaires and surveys conducted by you or anyone acting at your direction or request, including responses to those questionnaires and surveys, and any analyses or summaries of same;
b. All documents related to focus groups, interviews, or site visits conducted by you or anyone acting at your direction or request, including but not limited to dates and locations of those focus groups, interviews and site visits, minutes, transcripts, agendas, notes, attendance records and recordings;
c. All documents reflecting the methods and analyses you used in formulating recommendations about Defendant's pay classification structure;
d. All documents related to a “neutralization adjustment” made by Defendant, to adjust pay rates at the time of implementing the new hourly pay structure in a manner which would reduce gender disparities; and
e. Any communications on the above listed topics.
2. All documents related to any recommendations or proposals made by you to Defendant concerning Defendant's evaluation of or compensation for hourly or salaried employees working in Defendant's retail stores, including any communications with Defendant regarding same.
3. All documents related to any recommendations or proposals made by you to Defendant concerning Defendant's policies or procedures for considering and selecting individuals for promotion to any position in Defendant's retail stores, ...

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