United States District Court, M.D. Tennessee, Nashville Division
Jeffery S. Frensley, United States Magistrate Judge
matter is before the Court upon Plaintiffs' Motion to
Compel Production of Documents. Docket No. 152. Plaintiffs
have also filed a Supporting Memorandum of Law. Docket No.
153. Defendant has filed a Response in Opposition. Docket No.
163. Plaintiffs have filed a Reply as an integrated part of a
document titled “Opposition to Defendant Wal-Mart's
Motion to Quash the Subpoena to the Hay Group, Inc. and Reply
in Support of Plaintiffs' Motion to Compel Production of
Documents.” Docket No. 174. For the reasons discussed
below, Plaintiffs' Motion is GRANTED IN PART and DENIED
THE DISCOVERY MATTERS AT ISSUE
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.” Id. at 12.
instant Motion seeks to compel Defendant to produce:
[A]ll documents related to its analysis of and changes to the
job descriptions, compensation policies, and performance
evaluations used for [Defendant's] retail positions, in
response to Plaintiff's Requests for Production of
Documents 5, 6, and 7. [Defendant] worked closely with a
third party consultant called the Hay Group on this project,
and thus Plaintiffs refer to this collection of documents as
“Hay Group documents” although that is not
intended to limit the request to documents created by the Hay
Docket No. 153, p. 5.
responded to Requests for Production Nos. 5, 6, and 7 by
objecting on the basis of the attorney-client privilege and
attorney work product doctrine, among other, more general
objections. Docket No. 124-3, p. 9-11. Further, in response
to Requests for Production Nos. 5 and 7, Defendant stated
that “[i]n addition, [Defendant] objects to this
Request on the grounds that it is overbroad, not
proportionate to the needs of this case, and to the extent it
seeks documents that are not relevant to Plaintiffs'
allegations regarding the challenged practices or the alleged
‘core group of decisionmakers' in Region 43.”
Id. at 9.
contend that these documents are “highly relevant to
Plaintiffs' disparate impact claims.” Id.
at 5. Defendant has withheld some of the Hay Group documents
from production, and argues that Plaintiffs are not entitled
to discover them because: 1) Plaintiffs are attempting to
circumvent the Court's prior Order mandating production
only of responsive documents that were provided to the Region
43 decision makers; 2) the Hay Group documents are protected
by attorney-client privilege; and 3) the Hay Group documents
are protected by the work product doctrine. See
Docket No. 163. Plaintiffs dispute that the documents are
protected by either privilege or the work product doctrine,
but assert that even if they were, Defendant has waived those
protections by producing “some Hay Group documents but
not similar, related documents . . . .” Docket No. 153
LAW AND ANALYSIS
Discovery Under the Federal Rules of Civil
Rule of Civil Procedure 26(b) provides that parties may
obtain discovery regarding any matter, not privileged, that
is relevant to the claim or defense of any party.
Fed.R.Civ.P. 26(b)(5) sets out the steps that a party must
take if it withholds information otherwise discoverable based
upon a claim of privilege or a claim that the information is
protected by the work product doctrine. The party asserting
the privilege or work product protection has the burden of
showing that those protections apply. United States v.
Roxworthy, 457 F.3d 590, 593 (6th Cir. 2006); United
States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999).
Fed.R.Civ.P. 37(a) provides that the Court may compel the
disclosure or discovery of documents improperly withheld
after a request has been made under Fed.R.Civ.P. 34.
The Attorney-Client Privilege
contend that the Hay Group documents are not protected by the
attorney-client privilege because they were not created for
the purpose of seeking legal advice, but rather for business
purposes: “to create a new compensation structure
applicable to [Defendant's] retail store employees . . .
.” Docket No. 153, p. 11. Plaintiffs point to
categories on Defendant's privilege log as further proof
that the Hay Group documents had a business purpose.
also assert that “there is, as of yet, no evidence that
the Hay Group was retained at the direction of counsel, or
for litigation purposes . . . .” Id. at 12.
Plaintiffs assert that Defendant has withheld documents that
“include facts, not mental impressions of
counsel.” Id. at 12.
responds that it hired the Hay Group to “assist it in
responding to the Dukes allegations, ” and
that the documents that Plaintiffs seek “were compiled
and created in conjunction with Hay Group's advising the
company through its attorneys during the course of the
Dukes litigation.” Docket No. 163, p. 18.
According to Defendant, “[t]he Hay Group's work
facilitated [Defendant's] counsel's ability to advise
the company.” Id. at 20 (internal quotation
marks and citation omitted). Defendant claims that Plaintiffs
have had notice that Defendant was withholding some Hay Group
documents on the grounds of privilege “at least since
April 29, 2013 when [Defendant] served its privilege log in
Dukes II” yet never challenged that
withholding until now, and thus, “[t]he challenge has
long since been waived or forfeited.” Id.
Sixth Circuit has established the following elements with
regard to attorney-client privilege:
(1) Where legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in
confidence, (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or the
legal adviser, (8) except the protection be waived.
Arkwright Mutual Ins. Co. v. National Union Fire Ins.
Co., No. 93-3084, 1994 U.S. App. LEXIS 3828, at *17-18
(6th Cir. Feb. 25, 1994), quoting U.S. v. Goldfarb,
328 F.2d 280 (6th Cir. 1964).
Sixth Circuit has further held that “[i]t is, of
course, well established that attorney-client communications
related to areas other than legal counseling, such as
business advice, are not privileged.” In re Search
Warrant Executed at Law Offices of Stephen Garea, No.
97-4112, 1999 U.S. App. LEXIS 3861, at *4-5 (6th Cir. Mar. 5,
1999), citing In re Grand Jury Subpoena Duces Tecum,
731 F.2d 1032, 1037 (2d Cir. 1984).
Defendant has asserted the attorney-client privilege, it has
the burden of demonstrating that the privilege applies.
Fed.R.Civ.P. 26(b)(5); In re Grand Jury Investigation No.
83-2-35, 723 F.2d 447, 450 (6th Cir. 1983).
Defendant's argument that each document “compiled
and created” by the Hay Group is privileged because the
Hay Group was working in conjunction, or even at the behest
of, Defendant's counsel is unavailing. Even if these
documents were compiled and created by counsel itself, they
would not necessarily be privileged; rather, they would only
qualify for that protection if they met the criteria
discussed above. Arkwright, 1994 U.S. App. LEXIS at
17-18. In those cases, if any, where Defendant can establish
by reference to these criteria that a document is privileged,
then Defendant may protect the document from production.
Otherwise, the Court finds that the Hay Group documents are
not, as a group, protected by the attorney-client privilege.
The Work Product Doctrine
work product doctrine states that a party may obtain
discovery of documents otherwise discoverable, and prepared
in anticipation of litigation or for trial by or for another
party, or by or for that other party's representative,
only upon a showing that the party seeking discovery has
substantial need of the materials in the preparation of the
party's case and that the party is unable, without undue
hardship, to obtain the substantial equivalent of the
materials by other means. Fed.R.Civ.P. 26(b)(3).
Sixth Circuit has articulated the “because of”
test as the standard for determining whether documents were
prepared “in anticipation of litigation.”
United States v. Roxworthy, 457 F.3d 590, 593 (6th
Cir. 2006). There is a subjective component to this inquiry.
Id. at 593-94. A document is not protected by the
work product doctrine “if it would have been prepared
in substantially the same manner irrespective of the
anticipated litigation.” Id.
Court has further clarified that if a document has more than
one purpose, “the fact that it also serves an ordinary
business purpose does not deprive it of protection, but the
burden is on the party claiming protection to show that
anticipated litigation was the driving force behind the
preparation of each requested document.” In re
Professionals Direct Ins. Co., 578 F.3d 432, 439 (6th
Cir. 2009) (internal quotation marks and citation omitted).
Such documents do not ...