Hardin v. Wal-Mart Stores, Inc.

Filing 152

ORDER on Discovery Motions; Documents; Rule 30(b)(6) Deposition; Expand Number of Deposition (Docs. 140, 146/150, 149). signed by Magistrate Judge Barbara A. McAuliffe on 12/2/2011. (Herman, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ZANE HARDIN,

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CASE NO. 08-CV-0617 AWI BAM
Plaintiff,

ORDER ON DISCOVERY MOTIONS;
DOCUMENTS; RULE 30(b)(6) DEPOSITION;
EXPAND NUMBER OF DEPOSITIONS
(Doc. 140, 146/150, 149)

vs.
WAL-MART STORES, INC.

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Defendant.
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OVERVIEW

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This case involves plaintiff Zane Hardin’s claims against defendant Wal-Mart Stores, Inc. for

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age and disability discrimination and retaliation, among other claims. Two motions are pending before

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this Court. The first motion is plaintiff’s motion to compel: (a) Wal-Mart to produce a Rule 30(b)(6)

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deponent(s) pursuant to a 30(b)(6) notice, (b) leave to extend the number of fact depositions from 10 to

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15, ( c) Wal-Mart to produce Ms. Susan Chambers for deposition, and (d) compel document production

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related to Ms. Chambers’ memo. At issue is the “Chambers memo,” authored by Susan Chambers in

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September 2005. Ms. Chambers is a Vice President of Wal-Mart. The Chambers memo purports to

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outline a strategy for Wal-Mart to reduce health care costs by making full time employees part-time and

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restraining hiring to “healthy” workers. The second motion before the Court is Wal-Mart’s motion for

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a protective order to protect it from responding to any of the discovery which is the subject of plaintiff’s

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motion to compel.

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The Court conducted an informal discovery conference on December 1, 2011 and indicated its

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tentative ruling. Plaintiff appeared by telephone by counsel John Shepardson. Defendant appeared by

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telephone by counsel Gregory Spallas. This matter is submitted on the pleadings following oral
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argument, and the hearing set for December 16, 2011 is VACATED.

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The Court conducted an informal discovery conference, in part, because of the tortured

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procedural history of this case, in what should be a straightforward employment discrimination case. The

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case has gone through three rounds (and three years worth) of motions to dismiss, amended complaints,

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and a motion for summary judgment, all before any substantive discovery was done. All motions were

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heavily opposed and involved several extensions of time on behalf of the Court or the parties. A new

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complaint was filed on December 10, 2010, and the operative answer was not filed until May 9, 2011.

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Any other dates set before the current scheduling order filed June 16, 2011, were all set, and reset again

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to accommodate the motions to dismiss and the related filings. The Court therefore takes a practical

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approach to resolving this, and future, discovery disputes.

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The Rule30(b)(6) Notice

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Plaintiff served a “person most knowledgeable” deposition notice, pursuant to Federal Rule of

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Civil Procedure 30(b)(6) in November 2011 listing forty-one topics for witnesses. Wal-Mart objected

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to many of the topics.

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Rule 26(b) of the Federal Rules of Civil Procedure authorizes a party to obtain discovery

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regarding any nonprivileged matter that is relevant to any party's claim or defense. A Rule 30(b)(6)

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deposition notice requires the responding party to prepare a designated representative so that he or she

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can testify on matters not only within his or her personal knowledge, but also on matters reasonably

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known by the responding entity. Rule 30(b)(6) requires that the notice of deposition or subpoena

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describe with “reasonable particularity” the matters for examination.

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Plaintiff’s 30(b)(6) notice identified matters or categories for deposition which Wal-Mart
objected to:
(12) Whether Wal-Mart has implemented changes outlined in its said memos, which

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causes the company to deny Zane, and other Wal-Mart employees, their legal right to a

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reasonable accommodation, agreed upon schedules, and denies health insurance and other benefits.

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(13) Has Wal-Mart implemented a policy to convert workers to part-time status to
reduce health care costs?
(14) Has Wal-Mart implemented a policy to dissuade the hiring of less healthy
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workers?
(15) Has Wal-Mart implemented a policy to discourage the hiring of persons with
disabilities?
(16) How has Wal-Mart implemented its policy to hire healthy workers, while still not
discriminating against employees with disabilities and the elderly?
(17) Does Wal-Mart have a hiring policy that discourages the hiring of the elderly or
disabled?
(18) Has Wal-Mart created financial incentives to managers to avoid hiring the
disabled or elderly?
(26) Have Wal-Mart’s policies and procedures failed to eliminate barriers for equal

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employment opportunity at Wal-Mart?

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The Rule 30(b)(6) notice also requested that Wal-Mart designate a person to address specific

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implementation of the various recommendations in the Chambers memo. (Doc. 140 p.6.)

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Plaintiff contends that aggregating his requests in a Rule 30(b)(6) deposition is an efficient and

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acceptable method of working within the ten-deposition-per-side limit imposed by Rule 30(a)(2)(A)(I).

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The Court agrees, in concept.

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Rule 30(b)(6) is a powerful and important discovery tool. A Rule 30(b)(6) deposition notice

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serves a unique function: it is the sworn corporate admission that is binding on the corporation. See e.g.,

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Gales v. Winco Foods, 2011 WL 3794887 (N.D.Cal.2011) (“As a 30(b)(6) witness, her testimony is a

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sworn corporate admission binding on the corporation.) If the notice of deposition or subpoena served

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on the entity sufficiently describes the matters on which questions will be asked, the entity is under a

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duty to designate and produce “one or more officers, directors, or managing agents, or designate other

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persons who consent to testify on its behalf ... ” Rule 30(b)(6).

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The scope of the matters or categories that are “reasonably particularized” cannot be arbitrary

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to the corporate entity. The reasonably particularized categories must have some reasonable and rational

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relationship to the operation of the entity sought to be deposed. As currently phrased, plaintiff’s Rule

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30(b)(6) notices does not adequately particularize matters. As phrased, Wal-Mart could not possibly

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designate and properly prepare a corporate representative to testify on its behalf because it contends the
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“reasonably particularized” matters do not exist. Wal-Mart would be required to produce witnesses and

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documents to prove the existence of a negative, i.e., that Wal-Mart policy was NOT influenced or

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modified in any manner due to any language in the Chambers memo. Wal-Mart contends it does not

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have and did not implement a policy to hire only “healthy” workers; it does not have and did not

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implement a policy to discourage the hiring of the elderly or disabled; it does not have and did not

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implement financial incentives to managers to avoid hiring the disabled or elderly. Therefore, Wal-Mart

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cannot possibly comply with the 30(b)(6) notice. Rule 30(b)(6) is not so broad as to force Wal-Mart to

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“interpret” a line of inquiry in a category that Wal-Mart contends does not exist, and produce a designee

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for a nonexistent subject. The categories of the “reasonably particularized” matters for the 30(b)(6)

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deposition bear no relationship to Wal-Mart’s operation so as to argumentative and irrelevant.

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Indeed, Wal-Mart may face sanctions for failing to adequately produce and prepare its deponents

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in response to the Rule 30(b)(6) notice. See Rule 26(g). Further, Rule 30(b)(6) does not require Wal-

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Mart to admit it engaged in any wrongdoing. The phrasing of the categories implies that by producing

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a person, Wal-Mart has committed the wrong sought to be discovered. (“Has Wal-Mart implemented

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a policy to discourage the hiring of persons with disabilities?”)

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Moreover, the deposition notice is overboard and unduly burdensome. For instance, the

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categories related to “hiring” are not relevant to the issues in the case as plaintiff does not contend his

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“hiring” was discriminatory. He contends that denial of his promotions was based on age or disability.

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Another overly broad and burdensome category is whether Wal-Mart has implemented the Chambers

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memo through out Wal-Mart (“other Wal-Mart employees”). To prepare for a 30(b)(6) deposition for

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this category, Wal-Mart would be required to interview numerous employees across the nation to

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determine what policies were implemented.

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The Rule 30(b)(6) notice is improper, overbroad and unduly burdensome. Plaintiff’s request to

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compel Wal-Mart pursuant to the currently Rule 30(b)(6) notice is denied.

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Leave to Extend Fact Based Depositions to 15

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Plaintiff asks for leave to expand the fact based depositions from ten to fifteen.

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Rule 30(a)(2)(A)(I) provides that more than 10 depositions being taken may be taken by leave

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of court. Rule 30 does not state the showing that is required for additional depositions. See e.g., Archer
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Daniels Midland Co. v. Aon Risk Services, Inc. of Minn., 187 FRD 578, 586 (D MN 1999) (party must

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make a “particularized showing” of why extra depositions are necessary).

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Here, plaintiff has taken nine depositions. At the informal discovery conference, plaintiff

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identified an additional four deponents who would be necessary. The Court finds that plaintiff has made

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an adequate showing of these four additional deponents and grants the request for plaintiff to take up to

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thirteen depositions.

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Chambers Memo and Documentation

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Plaintiff seeks to compel production of the Chambers memo and documents regarding

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implementation of the Chambers memo. Wal-Mart seeks a protective order precluding production of

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any of the documents.

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Document Request, Set No. 4, requests that Wal-Mart produce the Chambers memo, documents

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regarding the policy of hiring “healthy” workers, communications about hiring “healthy” workers and

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any financial incentives, and documents regarding complying with discrimination and “healthy” workers.

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Wal-Mart objects to the production of the Chambers memo on various grounds. Wal-Mart argues

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that the Chambers memo postdated the adverse job actions of which plaintiff’s complains (i.e., the denial

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of job promotions). The memo is irrelevant to the central allegations of plaintiff’s complaint and subject

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to Fed.R.Evid. 401 and 403. Wal-Mart argues the decision-makers with regard to the challenged

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employment action(s) in this case (1) were not recipients of the Chambers memo or writings related

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thereto; (2) did not rely on the Chambers memo or writings related thereto, in reaching their decision(s);

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(3) did not prepare documentation regarding the Chambers memo or writings related thereto; and (4) did

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not confer with the author of the Chambers memo.

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Fed.R.Evid. 401 defines “relevant evidence” as evidence having probative value on “any fact that

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is of consequence” in the case. Fed.R.Evid. 403 provides that the courts should exclude relevant

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evidence when probative value of such testimony is outweighed by its potential prejudice.

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Here, plaintiff alleges that as a direct result of the Chambers memo, Wal-Mart implemented

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policies which adversely affected his employment. (Doc. 100 ¶59-60.) Plaintiff alleges that thereafter,

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directives were issued which converted workers to part time status and resulted in reduced health care

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costs, among other results.
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Based upon the allegations in the amended complaint, the Chambers memo is directly relevant

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to plaintiff’s claims. Plaintiff alleges a cause and effect relationship. Based on the Chambers’ memo,

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Wal-Mart implemented policies to further the findings in the memo. Plaintiff alleges that the Chambers

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memo advanced discriminatory policies which were implemented and adversely impacted his

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employment directly as an older worker with a purported disability. After the memo, and purported

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directives issued, plaintiff was converted to part time status. While Wal-Mart argues that no one at the

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store had any knowledge or communication regarding the Chambers memo, this is an issue which is

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subject to proof. Plaintiff is not required to take Wal-Mart’s word on the subject. If the memo

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established a corporate policy which was then communicated to the store and implemented, then the

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policy is directly relevant. Accordingly, the Chambers memo will be ordered produced.

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As to the remaining documents in Plaintiff’s Document Request, Set no. 4, requests no. 2-6, the

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Court will order partial production. The Court finds that the scope of the requests is irrelevant to the

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allegations and overly board and burdensome. The documents relevant to plaintiff’s claims are for the

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particular store in which plaintiff was employed, not for all stores across the United States. Only

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plaintiff’s store is relevant because plaintiff has not shown that the corporate culture of employment

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decisions negated all manner of management discretion. See Wal-Mart Stores, Inc. v. Dukes, - U.S.-,

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131 S.Ct. 2541 (2011) (rejecting the theory that a strong and uniform “corporate culture” permits bias

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against women to infect the discretionary decisionmaking of each one of Wal–Mart's thousands of

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managers—thereby making every woman at the company the victim of one common discriminatory

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practice).

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The relevant store and its operation is the store in which plaintiff was employed (store 2985).
The Court orders the following document to be produced for the store 2985:
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Documents which relate to written and verbal directives and financial incentives

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to convert workers to part-time status for the store, based upon the Chambers

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memo, from September 2005 to the present.

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Documents which relate to employment policies and practices on age discrimination and

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disability discrimination, and related communications, from September 2005 to the

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present from corporate office to the store.
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Protective Order

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Rule 26( c) provides that a court "may, for good cause, issue an order to protect a party or person

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from annoyance, embarrassment, oppression, or undue burden or expense." Fed.R.Civ.P. 26(c)(1). To

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establish "good cause," a party seeking a protective order for discovery materials must "present a factual

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showing of a particular and specific need for the protective order." Welsh v. City and County of San

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Francisco, 887 F.Supp. 1293, 1297 (N.D.Cal.1995). In order to establish good cause for issuance of a

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protective order, the party seeking protection bears the burden of showing that specific prejudice or harm

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will result if no protective order is granted. See Beckman Indus., Inc. v. International Ins. Co., 966 F.2d

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470, 476 (9th Cir.1992) (holding that broad allegations of harm, unsubstantiated by specific examples

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or articulated reasoning, do not satisfy the Rule 26( c) test); see also San Jose Mercury News, Inc. v.

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United States Dist. Court, 187 F.3d 1096, 1103 (9th Cir.1999) (holding that to gain a protective order

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the party must make a particularized showing of good cause with respect to any individual document).

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If a court finds particularized harm will result from disclosure of information to the public, it then

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balances the public and private interests to decide whether a protective order is necessary. See Glenmede

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Trust Co. v. Thompson, 56 F.3d 476, 483 (3rd Cir.1995).

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Here, the Court has denied the Rule 30(b)(6) request, as currently worded, and restricted the

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request for production of documents. The Court denies the request for the protective order as to the Rule

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30(b)(6) notice and the request for production of documents.

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Chambers Deposition

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Plaintiff seeks to depose Ms. Chambers. Ms. Chambers is a Vice-President of Wal-Mart and as

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stated in oral argument, has her principle place of business and residency in Arkansas. (See Doc. 140

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p.10 n. 1.) The general presumption is that “deposition of a corporation by its agents and officers should

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ordinarily be taken at its principal place of business.” See generally Aerocrine AB v. Apieron Inc., 267

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F.R.D. 105, 108 (D DE 2010). This generally recognized presumption may be overcome by a showing

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of the location of counsel for all parties; the number of corporate representatives a party is seeking to

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depose; the likelihood of significant discovery disputes arising that would necessitate resolution by the

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forum court; and whether the persons sought to be deposed often engage in travel for business purposes.

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E.I. DuPont de Nemours & Co. v. Kolon Industries, Inc., 268 F.R.D. 45, 54 (ED VA 2010). Thus, the
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court has discretion as to the location of the deposition.

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Here, there is no showing that Ms. Chambers has traveled to this District or had any direct

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communications with anyone located in this district. Plaintiff’s requests the deposition in California.

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However, if necessary, Plaintiff states he will take the deposition in Arkansas, and video tape it for use

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at trial as he alleges her testimony is vital to proving up the corporate practice which caused

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compensatory damages to Zane. (Doc. 140, p.10 n.1.)

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The Court grants the request to depose Ms. Chambers. The Court declines to order Ms.

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Chambers’ deposition be taken in Fresno. Rather, in its exercise of discretion, and for good cause, the

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Court orders Ms. Chambers may be located in Arkansas when the deposition is taken. Plaintiff may take

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the deposition by telephone, video, or other remote means. Fed.R.Civ.P.30(b)(4). Alternatively,

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plaintiff may travel to Arkansas to take the deposition.

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IT IS SO ORDERED.
Dated:
10c20k

December 2, 2011

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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