Hannah v. Walmart

Filing 118

RULING granting in part and denying in part 84 Motion to Compel Discovery Responses and Motion for Protective Order re Number of Depositions, Location and Production of Electronically Stored Information. See attached ruling. Signed by Judge Holly B. Fitzsimmons on 01/10/2014. (Katz, Samantha)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
KIM HANNAH, TOM IRVING, and
MICHAEL BARHAM
v.
WAL-MART STORES, INC., and
WAL-MART STORES EAST, L.P.

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CIV. NO. 3:12CV1361 (JCH)

RULING ON DEFENDANTS‟ MOTION TO COMPEL
AND MOTION FOR PROTECTIVE ORDER [DOC. #84]
Pending before the Court is a motion by defendants Wal-Mart
Stores, Inc. and Wal-Mart Stores East, L.P. (“defendants” or
“Walmart”), to compel responses from plaintiffs Kim Hannah, Tom
Irving, and Michael Barham (collectively the “plaintiffs”) to
written discovery; and defendants‟ motion for protective order
regarding number and location of depositions, and production of
electronically stored information (“ESI”) [Doc. #84]. For the
reasons that follow, defendants‟ motion to compel and for
protective order is GRANTED IN PART AND DENIED IN PART.
I.

BACKGROUND
Plaintiffs bring this employment discrimination action

pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§2000e, et seq., and the Connecticut Fair Employment Practices
Act (“CFEPA”) for race discrimination, retaliation, and for
wrongful discharge under Connecticut common law. [Amend. Compl.,

1

Doc. #6, at ¶1].1

Plaintiffs, all African Americans, allege they

were managers at Connecticut Walmarts, when they were terminated
in 2010 as a result of restructuring. [Id. at ¶¶2-3].
Plaintiffs Hannah and Irving were allegedly employed as Market
Human Resources Mangers (“MHRM”), and plaintiff Barham as a
Market Asset Protection Manager (“MAPM”). [Id. at ¶¶5-7].
Plaintiffs further allege that the restructuring was merely a
subterfuge or pretext for racial discrimination. [Id. at ¶3].
On November 13, 2013, the Court held a discovery conference
on the record, in an attempt to resolve the parties‟ disputes.
Unfortunately, and despite lengthy discussions, the parties were
unable to resolve any issues, including those raised by
defendants‟ pending motion.

As a result, the Court issued a

Discovery Order on November 15, 2013, that requested the parties
simultaneously file memoranda on the issues of ESI search terms
and deposition schedules (“November 15 Discovery Order”). [Doc.
#87].

The Court imposed a fifteen (15) page limitation and a

deadline of 5:00 PM on November 22, 2013. [Id. at 3].2

The

On August 30, 2013, Judge Hall granted defendants‟ motion for
partial judgment on the pleadings as to plaintiffs‟ CFEPA and
retaliation (Connecticut General Statutes section 31-51m)
claims. [Doc. #79].
2
Plaintiffs did not file their memoranda until the morning of
November 25, 2013. [Doc. #91]. Plaintiffs‟ counsel submitted a
letter to the Court explaining the untimely submission as a
result of her not seeing the electronic notice of the November
15 Discovery Order. [Pl. Letter Nov. 25, 2013]. The Court
further notes that Plaintiffs‟ memorandum is not compliant with
1

2

parties filed responses to each other‟s memoranda on November
26, 2013. [Doc. ##92, 93].

Defendants also filed a sur-reply

[Doc. #94], which the Court permitted over plaintiffs‟ motion to
strike [Doc. ##95, 99].
II.

MOTION TO COMPEL
Defendants seek an order compelling plaintiffs to respond

to Walmart‟s interrogatories and requests for production served
on May 14, 2013 or, alternatively, barring plaintiffs from
submitting any responsive material in support of their claims.
Plaintiffs argue that they have provided their signed
interrogatory responses, and that plaintiffs‟ responses to
defendants‟ document requests are not yet due.
A. Legal Standard
Rule 26(b)(1) of the Federal Rules of Civil Procedure sets
forth the scope and limitations of permissible discovery.
Parties may obtain discovery regarding any matter, not
privileged, that is relevant to the claim or defense of any
party.

For good cause, the court may order discovery of any

matter relevant to the subject matter involved in the action.
Relevant information need not be admissible at trial if the
the November 15 Discovery Order as it exceeds the page
limitations, and addresses matters outside the scope of the
order. [Doc. #91]. As a sanction, defendants request that the
Court disregard in its entirety plaintiffs‟ memorandum. [Doc.
#93, at 2]. The Court DENIES in part this request. As
articulated below, the Court will not consider the information
contained in the “addendum” to plaintiffs‟ memorandum.
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discovery appears reasonably calculated to lead to the discovery
of admissible evidence. Fed. R. Civ. P. 26(b)(1).

Information

that is reasonably calculated to lead to the discovery of
admissible evidence is considered relevant for the purposes of
discovery.

See Daval Steel Prods. v. M/V Fakredine, 951 F.2d

1357, 1367 (2d Cir. 1991); Morse/Diesel, Inc. v. Fidelity &
Deposit Co., 122 F.R.D. 447, 449 (S.D.N.Y. 1988). “The party
resisting discovery bears the burden of showing why discovery
should be denied.” Cole v. Towers Perrin Forster & Crosby, 256
F.R.D. 79, 80 (D. Conn. 2009).
B. Discussion
With respect to plaintiffs‟ interrogatory responses,
counsel represents that signed responses were provided to
defense counsel, and that defendants‟ motion to compel
interrogatory responses should be denied as moot.

Although

defendants‟ counsel acknowledges receipt of the interrogatory
responses, albeit after the present motion to compel was filed,
defendants also argue that plaintiffs‟ objections are timebarred and should be overruled by the Court.
Rule 33 governs interrogatories and provides that answers
and objections must be served within thirty (30) days after
being served with the interrogatories.
33(b)(2).

Fed. R. Civ. P.

Nevertheless, the parties may stipulate to a shorter

or longer period to respond pursuant to Rule 29.
4

Id.

Rule 33

further provides that “[a]ny grounds not stated in a timely
objection is waived unless the court, for good cause, excuses
the failure.”

Fed. R. Civ. P.

33(b)(4).

The Court will not

overrule plaintiffs‟ interrogatory objections on the current
record.

In light of the parties‟ absolutely divergent

recollections of agreements and/or purported extensions of time,
the current record is simply too tenuous to support the relief
requested by defendants at this time.

Accordingly, defendants‟

motion to compel the production of signed interrogatory
responses is DENIED on the current record.
As to the issue of outstanding document production, the
parties recite a long history of deadline extensions, coupled
with all too often divergent recollections of conversations and
purported agreements.

Quite frankly, the tone that this

litigation has taken is nowhere near the spirit and purposes
contemplated by the Federal Rules of Civil Procedure.

Indeed,

this matter has now drifted far off course from its original
case management plan, and the fact that only limited discovery
has occurred to date is unacceptable. Plaintiffs contend that
their production deadline is not triggered until defendants
produce their responsive documents, including those responsive
to twelve (12) deposition duces tecum notices served by
plaintiffs.

Defendants, naturally, disagree.

At this juncture,

given that fifteen months have passed from the initiation of
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this lawsuit and plaintiffs have yet to produce a single
document, the Court finds that any purported agreement that
plaintiffs would produce documents following the completion of
defendants‟ production is no longer feasible.

This is

especially true in light of the amount of time defendants
represent the ESI process will take to complete.

Therefore,

plaintiffs shall serve their responses to defendants‟ requests
for production, including responsive documents and, if
applicable, privilege logs, within thirty (30) days of this
Order.3

The Court will not grant any further extensions of this

deadline, absent a showing of good cause. Accordingly,
defendants‟ motion to compel is DENIED with respect to
plaintiffs‟ interrogatories, and GRANTED with respect to
plaintiffs‟ outstanding responses to defendants‟ requests for
production.
III. MOTION FOR PROTECTIVE ORDER
Defendants also seek a protective order barring plaintiffs
from noticing out of state witnesses for depositions in
Connecticut; setting a limit on the number of depositions

Plaintiffs further claim that this Court ordered defendants to
produce documents first in a June 17 oral order announced during
a discovery conference. Defendants represent that they have
produced over 1,000 documents, and all that remains is ESI
production. The Court‟s oral order, over six (6) months ago,
clearly did not contemplate the contentious tone this matter
would take, and it is no longer feasible to permit plaintiffs to
delay their production until the completion of ESI production.
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plaintiffs may take; and governing the scope and parameters of
ESI discovery.
A. Legal Standard
Notwithstanding the breadth of the discovery rules
previously discussed, the district courts are afforded
discretion under Rule 26(c) to issue protective orders limiting
the scope of discovery. Dove v. Atlantic Capital Corp., 963 F.2d
15, 19 (2d Cir. 1992) (“[t]he grant and nature of protection is
singularly within the discretion of the district court....”).
When the party seeking the protective order demonstrates good
cause, the court “may make any order which justice requires to
protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including ... that the
disclosure or discovery not be had.” Fed. R. Civ. P. 26(c)(1).
“The party resisting discovery bears the burden of showing why
discovery should be denied.” Chamberlain v. Farmington Sav.
Bank, 247 F.R.D. 288, 289 (D. Conn. Nov. 30, 2007) (citing
Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)).
B. Discussion
a. Number of Depositions
The Court will first address the permissible number of
depositions, absent leave of court.

Defendants, in a footnote,

seek guidance on the number of witnesses plaintiffs may depose

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in this matter.

Defendants further note that there are

currently thirteen (13) deposition notices outstanding,
including a 30(b)(6) notice “that could call for over 20
additional depositions.” [Doc. #85, at 10 n. 2].

Plaintiffs

argue that under the rules, each plaintiff is entitled to 10
depositions.

Additionally, plaintiffs argue that defendants

should be estopped from raising this issue in light of
defendants‟ issuance of more than the proscribed number of
interrogatories, and defendants‟ failure to object to the number
of depositions noticed in April 2013.
The Court rejects plaintiffs‟ argument that the Federal
Rules of Civil Procedure allow ten depositions per plaintiff.
This position is belied by the plain language of Rule
30(a)(2)(A)(i) and the case law of this Circuit.

The rule is

clear that each side is limited to ten depositions.

Fed. R.

Civ. P. 30(a)(2)(A)(i) (“A party must obtain leave of court, and
the court must grant leave to the extent consistent with Rule
26(b)(2) if the parties have not stipulated to the deposition
and the deposition would result in more than 10 depositions
being taken under this rule or Rule 31 by the plaintiffs[…].”);
Sigala v. Spikouris, 00 CV 0983(ILG), 2002 WL 721073, at *3
(E.D.N.Y. Mar. 7, 2002) (“The Federal Rules presumptively limit
the number of depositions that each side may conduct to ten.”)
(citation omitted; emphasis added); Ritchie Risk-Linked
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Strategies Trading (Ireland), Ltd. v. Coventry First LLC, 273
F.R.D. 367, 371 (S.D.N.Y. 2010) (noting that the “parties
[multiple plaintiffs and defendants] were presumptively limited
to 10 depositions in this case”, where plaintiffs moved for
leave to take five additional depositions after previously
noticing ten); 7 JAMES WM. MOORE,

ET AL.,

MOORE‟S FEDERAL PRACTICE

§30.05[1][b] (3d ed. 2013) (“The presumptive limit of 10
depositions applies to each „side‟ or „position‟ in litigation
and not to each party.”).
The Court additionally rejects plaintiffs‟ arguments that
defendant should be estopped from making this argument in light
of the number of interrogatories served on plaintiffs.4

The rule

governing the permissible number of interrogatories clearly
contemplates that 25 per party, and not 25 per side, is allowed.
Fed. R. Civ. P. 30(a)(1) (“Unless otherwise stipulated or
ordered by the Court, a party may serve on any other party no
more than 25 written interrogatories, including discrete
subparts.”).
Although plaintiffs are presumptively limited to ten
depositions, the Court will permit plaintiffs to depose the
fifteen (15) witnesses specifically listed in Section
4

Defendants served 23 interrogatories on each plaintiff, not
including subparts to some of the interrogatories. The Court‟s
review of the interrogatories indicates that the subparts are
not discrete, as they do not seek information apart from what is
contemplated by the main interrogatory.
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III(B)(b)(1)-(4) below.

Unless the parties stipulate to any

additional depositions (other than 30(b)(6) depositions,
discussed below), the plaintiffs must seek leave of Court prior
to noticing the depositions of any additional witnesses. In
seeking such leave, plaintiffs are reminded that “[t]he factors
relevant to determining whether a party should be entitled to
more than ten depositions are now set forth in Federal Rule of
Civil Procedure 26(b)(2)(C)[…]”

Atkinson v. Goord, Nos. 01 Civ

0761(LAK)(HBP), 03 Civ. 7759(LAK)(HBP), 2009 WL 890682, at *1
(S.D.N.Y. April 2, 2009) (citation omitted).
b. Location of Depositions & Deposition Schedule
Defendants next seek a protective order barring plaintiffs
from noticing out of state witnesses for deposition in
Connecticut.

The issue of deposition schedules and locations

was discussed at length during the November 13, 2013 discovery
conference.

In response to the November 15 Discovery Order, the

parties submitted competing deposition schedules.

The Court has

reviewed the parties‟ proposals, and has considered other
pertinent information regarding the deponents‟ locations, and
the availability of counsel.

The Court has also considered the

briefing on defendants‟ pending motion.
As an initial matter, the Court rejects plaintiffs‟
requests that the following out of state depositions occur in
Connecticut. The law is well settled that, “The deposition of a
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corporation by its agents and officers should ordinarily be
taken at its principal place of business, especially when… the
corporation is the defendant.”

Morin v. Nationwide Credit

Union, 229 F.R.D. 362, 363 (D. Conn. 2005). Indeed, it is the
“plaintiff who is generally required to bear any reasonable
burdens of inconvenience that the action represents.

Moreover,

the convenience of counsel is less compelling than any hardship
to the witnesses.”

Id.

Although defendants are likely in the

better position to bear travel costs associated with out-ofstate depositions, this is not sufficient reason to order that
the defendants‟ employees (or former employees) be required to
travel to Connecticut for their depositions.5

Id.

The Court

also finds that the schedule below is more in the spirit of
discussions held during the discovery conference.

Moreover, to

alleviate their travel costs, plaintiffs may arrange for the
out-of-state depositions to occur telephonically or by video
conference. Should plaintiffs seek leave to depose any
additional witnesses, plaintiffs may also set forth the
“peculiar circumstances” why the deponent should appear in
Connecticut for his or her deposition.
The parties shall use best efforts to set an agreed
deposition schedule during the time frames ordered below.
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If

Plaintiffs also point to defense counsel‟s recent Achilles injury as reason
for ordering the depositions to occur in Connecticut. However, the Court
believes that it has crafted an appropriate deposition schedule to
accommodate the parties‟ needs.

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the parties are unable to agree, they shall contact the Court
for a telephone conference wherein the Court will set specific
days for the following depositions.
1. Pennsylvania Deponents
The parties represent that Phillip Morris, Lance De La
Rosa, Anthony Restuccia, and Brian Broadus are located in
southeastern Pennsylvania.

Accordingly, their depositions shall

occur in Philadelphia, Pennsylvania during the week of February
10, 2014.
2. Connecticut Deponents
The parties represent that Alan Nason, La‟Shion Robinson,
Sharon Burns, and Lauri Canales are located in Connecticut.
Richard Bourget is a current Walmart employee and lives in
Maine. Defendants requested that Mr. Bourget‟s deposition be
clustered with any taking place in northern New England.
Plaintiffs‟ counsel represents that defense counsel stated Mr.
Bourget may be brought to Connecticut.

Accordingly, the Court

orders that the depositions of Alan Nason, La‟Shion Robinson,
Sharon Burns, Lauri Canales, and Richard Bourget take place in
Connecticut during the week of February 17, 2014.
3. Southeastern Deponents
The parties represent that Baldomero Da Silva, Monica
Mullins, Anthony Durden, and Kim Golembewski reside in the
Southeastern region of the United States.
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Specifically, Mr.

Baldomero and Ms. Mullins reside in the Bentonville, Arkansas
area.

Accordingly, the depositions of Mr. Baldomero and Ms.

Mullins shall occur in the Bentonville, Arkansas area during the
week of February 24, 2014.
Anthony Durden resides in Tennessee, and Ms. Golembewski in
North Carolina.

Their depositions shall occur where each

respectively resides during the week of March 3, 2014, unless
counsel agree that setting these depositions during the week of
February 24 is more convenient for travel purposes.
4. Brian West and Stan Golembewski
Brian West and Stan Golembewski are no longer employed by
defendants.

Accordingly, if plaintiffs still wish to depose

these individuals, they shall issue subpoenas for their
appearance.

Once plaintiffs ascertain the location of Mr. West

and Mr. Golembewski, plaintiffs shall coordinate their
depositions to occur with those set in a similar geographic
location.

The Court will not require Mr. West or Mr.

Golembewski to appear in Connecticut for their respective
depositions on the current record.
c. ESI Discovery
The Court has carefully reviewed the parties‟ submissions
in response to the November 15 Discovery Order [Doc. ##90-94],
the briefing on defendants‟ motion, and has considered the
arguments presented at the discovery conference.
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Based on the

current record, defendants shall perform their first proposed
search [Doc. #90, at 11] for Lance De La Rosa, Sharon Burns,
Lauri Canales, Richard Bourget, Philip Morris, Anthony
Restuccia, Brian Broadus, La‟Shion Robinson, Anthony Durden,
Baldomero Da Silva III, Kim Golembewski, Monica Mullens, Alan
Nason, and Brian West.

The Court further orders that defendants

perform their second proposed search [Id.] for Lance De La Rosa,
Richard Bourget, Philip Morris, Anthony Restuccia, Brian
Broadus, Baldomero Da Silva III, and Monica Mullins.

The Court

finds that defendants‟ proposed searches are well tailored to
produce relevant information without needlessly retrieving an
excess of irrelevant documents.

By comparison, plaintiffs‟

proposed searches would cast far too wide a net over the
universe of ESI, which would result in a burdensome amount of
irrelevant documents.

Nevertheless, plaintiffs may make an

application to the Court for additional search terms if after a
review of the documents produced and the depositions of the
custodians, the plaintiffs can make a showing that other
relevant and responsive documents exist.6
Defendants object to any proposed searches of Stan
Golembewski‟s ESI because he was never identified as one of the
Defendants request that plaintiffs be ordered to pay the costs
of any further ESI searches. The Court declines to enter such
an order at this time, but defendants may renew their request
for such costs if any further ESI searches are ordered by the
Court.
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custodians for ESI purposes.

As a result, defendants would have

to start the ESI data acquisition and segregation process for
this custodian “from scratch”.

Additionally, defendants contend

that, to their knowledge, Mr. Golembewski did not work directly
with, or supervise, any of the plaintiffs.

Defendants further

submit that during the reorganization that resulted in
plaintiffs‟ termination, Mr. Golembewski‟s position as a Grocery
Market Manager was eliminated, and he was placed in a MAPM
position in Connecticut.

Plaintiffs contend that Mr.

Golembewski received Mr. Barham‟s job, despite the fact that Mr.
Golembewski had no asset management background. Mr. Golembewski
was terminated in December 2010. Plaintiffs seek a search of Mr.
Golembewski‟s ESI using the following search terms and date
ranges: (1) for June 2009 through the present: “Barham”; and (2)
for the period of June 1, 2009 through December 2012: {restrict!
or reorganize! or application or apply and management or manager
or MAPM or market-level or “market level” or “market manager”}.
The Court will not order defendants to conduct plaintiffs‟
proposed searches on the current record, given what appears to
be Mr. Golembewski‟s tangential relationship with the
plaintiffs.

Moreover, the information sought by plaintiffs may

in fact be produced by the searches ordered for the other
custodians‟ ESI.

Nevertheless, plaintiffs may make an

application to the Court for a search of Mr. Golembewski‟s ESI
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if after a review of the documents produced and the depositions
of the custodians, the plaintiffs can make a showing that other
relevant and responsive documents exist.
The Court will not consider at this time plaintiffs‟
proposals as to Zelma Woodson, Lance Sovine, Ann Thomas,
Marianna Brugger, or Elizabeth Jones.

The November 15 Discovery

Order did not contemplate issuing search terms for these
individuals.

The information plaintiffs provide for these

proposed deponents also falls outside the page limitations
imposed by the Court.

Moreover, given the number of depositions

allowed by this ruling, the Court encourages plaintiffs to first
proceed with those permitted above, before seeking leave for any
additional depositions.

As always, the parties may endeavor to

stipulate on ESI discovery and/or deposition terms for these
five (5) individuals.
IV.

30(b)(6) Witnesses
Plaintiffs request that defendants identify and produce

30(b)(6) witnesses who
can testify about each and every decision not to
rehire each of the three plaintiffs for each and
every position at defendants that each plaintiff
has applied for since January 1, 2010 through the
present, and also to testify about the identity
of the person who was hired instead of [] each of
the plaintiff(s) for each position for which each
plaintiff applied at defendants and why, in each
instance, such individual was hired instead of
each plaintiff, and why each plaintiff was not

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interviewed for the position, and was not
selected.
[Doc. #91, at 15]. To the extent defendants do not object to
plaintiffs‟ 30(b)(6) notices, defendants shall identify the
names and locations of their 30(b)(6) witnesses within fourteen
(14) days from the date of this ruling.

Thereafter, the parties

shall contact the Court for a telephone conference so that a
deposition schedule may be ordered for these witnesses.

If the

defendants object to the notices, including the potential number
of witnesses the notices may implicate7, defendants may seek
appropriate relief from the Court and/or a telephone conference
to expedite resolution of this issue.
Plaintiffs also seek “all documents that reflect or support
these decisions and selections, and any communications about any
of the plaintiffs to any of the decision-makers.” [Doc. #91, at
15].

The Court requested plaintiffs provide information as to

why plaintiffs were entitled to documents from a 30(b)(6)
witness. [Doc. #87, at 2].

Plaintiffs have failed to provide

any basis for, or authority supporting, their entitlement to
documents from a 30(b)(6) witness.

Therefore, on the current

The parties are reminded that a deposition under Rule 30(b)(6)
is counted as a single deposition for purposes of Rule
30(a)(2)(A)(i), even if more than one person is designated to
testify. Fed. R. Civ. P. 30(a)(2)(A) Advisory Committee‟s Note
(1993).
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record, the Court will not require defendants‟ 30(b)(6)
witnesses to produce documents.
V.

Discovery and Dispositive Motions Deadlines
Currently, fact depositions and expert discovery is to be

completed by January 16, 2014.
September 30, 2013.

Written discovery was due by

In light of the parties‟ difficulties

coordinating their discovery efforts, an extension of these
deadlines is necessary.

Accordingly, within fourteen (14) days

from the date of this ruling, the parties shall submit to the
Court a joint motion for extension of discovery and dispositive
motion deadlines. In crafting the proposed deadlines, the Court
urges the parties to be reasonable in their requests, as the
Court does not contemplate granting any further extensions.
VI.

Conclusion
Therefore, defendants‟ motion to compel is DENIED with

respect to the answers to interrogatories, and GRANTED with
respect to plaintiffs‟ responses to defendants‟ requests for
production.

Defendants‟ motion for protective order is GRANTED

in part and DENIED in part, as set forth above.
This is not a Recommended Ruling. This is a discovery
ruling or order which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. 28 U.S.C. §
636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.

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72.2. As such, it is an order of the Court unless reversed or
modified by the district judge upon motion timely made.
ENTERED at Bridgeport, this 10th day of January 2014.

__________/s/_________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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