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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/Frensley, Judge.

          ORDER

          Jeffery S. Frensley, United States Magistrate Judge

         This 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 IN PART.

         I. THE DISCOVERY MATTERS 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 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 Group.[2]

Docket No. 153, p. 5.

         Defendant 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.

         Plaintiffs 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 at 13.

         II. LAW AND ANALYSIS

         A. Discovery Under the Federal Rules of Civil Procedure

         Federal 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.

         B. The Attorney-Client Privilege

         Plaintiffs 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. Id.

         Plaintiffs 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.

         Defendant 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.”[3] 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.

         The 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).

         The 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).

         As 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.

         C. The Work Product Doctrine

         The 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).

         The 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.

         The 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 ...


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