Hannah v. Walmart

Filing 160

RULING granting in part and denying in part 152 Plaintiffs' Motion to Compel, as set forth in the attached ruling. Signed by Judge Holly B. Fitzsimmons on 7/28/2014. (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 PLAINTIFFS‟ MOTION TO COMPEL, FOR SANCTIONS, AND
PERMISSION TO DEPOSE CERTAIN DEFENSE WITNESSES [DOC. #152]
Pending before the Court is a motion by plaintiffs Kim
Hannah, Tom Irving, and Michael Barham (collectively the
“plaintiffs”) to compel defendants Wal-Mart Stores, Inc. and
Wal-Mart Stores East, L.P. (“defendants” or “Walmart”), to
provide certain discovery responses. Plaintiffs also seek
permission to depose certain additional defense witnesses, and
the imposition of sanctions in light of defendants‟ alleged
discovery failures. [Doc. #152].

For the reasons that follow,

the Court GRANTS IN PART AND DENIES IN PART plaintiffs‟ motion
to compel.
I.

BACKGROUND
The Court presumes familiarity with the procedural and

factual background, as well as the parties‟ prior discovery
obstacles, which are detailed at length in the Court‟s previous
rulings and orders. See Doc. ## 87, 118, 127, 153, 154. The
present dispute encompasses Plaintiffs‟ various discovery
requests, and Plaintiffs‟ request for permission to depose
additional witnesses. On June 5, 2015, the Court held an in-

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person discovery conference on the record to address the matters
raised in plaintiffs‟ motion to compel, and other unresolved
discovery issues.

The Court held a follow-up telephone

conference on July 22, 2014, also on the record.1
II.

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
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).

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Concurrently pending before the Court are defendants‟ objections to
plaintiffs‟ amended second document requests, as to which the Court will
issue a separate ruling.

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III. DISCUSSION
A. Deposition of Ann Thomas
Plaintiffs‟ request for permission to depose Ann Thomas
warrants a brief overview of this Court‟s prior rulings. On
January 10, 2014, the Court granted defendants‟ motion for
protective order with respect to the number of depositions to
which plaintiffs were entitled. [Doc. #118]. The Court permitted
plaintiffs to depose fifteen (15) witnesses and, absent
stipulation, required plaintiff to seek leave of court prior to
noticing the depositions of any additional witnesses.
Plaintiffs argue that Ms. Thomas is a relevant witness in light
of her involvement in the 2010 restructure. Plaintiffs also
allege that plaintiff Hannah complained to Ms. Thomas about
retaliation. Defendants concede that Ms. Thomas may have
knowledge and/or information relevant to the present litigation,
but object to plaintiffs‟ request on the grounds of timing2 and
the number of Wal-Mart witnesses already deposed.
The Court will permit plaintiffs to depose Ms. Thomas in
light of her alleged involvement with both the restructure at
issue and Hannah‟s complaints of retaliation. In light of Ms.
Thomas‟s location in Bentonville Arkansas, plaintiffs may
arrange for this deposition to be held via video conference
and/or telephone. Plaintiffs shall have thirty (30) days from
the date of this ruling to complete Ms. Thomas‟s deposition.

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Specifically, defendants state that plaintiffs have had knowledge of Ms.
Thomas since July 2013.

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Therefore, plaintiffs‟ motion to compel is GRANTED with respect
to their request to depose Ms. Thomas.
B. Production of Additional 30(b)(6) Witness
Plaintiffs next seek the production of a substitute
30(b)(6) witness, in light of the allegedly deficient testimony
provided by defendants‟ designated witness, Sharon Williams.3
Plaintiffs argue that Williams was unable to answer questions
within the scope of the 30(b)(6) notice and generally provided
inadequate testimony. Defendants argue that Ms. Williams was
deposed for an entire day and provided far more testimony than
plaintiffs suggest.

Plaintiffs provided the Court with a copy

of the 30(b)(6) deposition notice, which seeks a representative
“who can address each and every decision not to rehire the
plaintiffs for each and every position for which the plaintiffs
applied at defendants since January 1, 2010.” Plaintiffs also
provided the Court with a copy of Ms. Williams‟s deposition
testimony.
Rule 30(b)(6) provides:
[A] party may name as the deponent a public or
private corporation… and must describe with
reasonable particularity the matters for
examination. The named organization must then
designate one or more officers, directors, or
managing agents, or designate other persons who
consent to testify on its behalf… The persons
designated must testify about information known or
reasonably available to the organization.

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Williams is the “Director of HR Strategies” for Wal-Mart. [Williams Depo.
Tr., May 8, 2014, 3:17-18]. Her position at the time of the deposition was
director of diversity and centralized staffing under the talent acquisition
team. [Id. at 13:1-17].

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Fed. R. Civ. P. 30(b)(6). “Pursuant to Rule 30(b)(6), the
deponent „must make a conscientious good-faith endeavor to
designate the persons having knowledge of the matters sought by
[the party noticing the deposition] and to prepare those persons
in order that they can answer fully, completely, unevasively,
the questions posed ... as to the relevant subject matters.‟”
Sony Elec., Inc. v. Soundview Techn., Inc., 217 F.R.D. 104, 112
(D. Conn. 2002) (quoting Bank of New York v. Meridien BIAO Bank
Tanzania Ltd., 171 F.R.D. 135, 151 (S.D.N.Y. 1997)).

“While the

30(b)(6) deponents need not have personal knowledge concerning
the matters set out in the deposition notice… the corporation is
obligated to prepare them so that they may give knowledgeable
answers.”

Scoof Trading Dev. Co., Ltd. v. GE Fuel Cell Sys.,

LLC, No. 10 Civ. 1391(LGS)(JCF), 2013 WL 1286078, at *2
(S.D.N.Y. March 28, 2013) (compiling cases; internal quotations
omitted).

Accordingly, a party responding to a 30(b)(6) notice

must “prepare the designee to the extent matters are reasonably
available, whether from documents, past employees, or other
sources.”

Id.

After a careful review of Ms. Williams‟s 30(b)(6)
deposition transcript, the Court is reluctant to find that Ms.
Williams was an inadequate 30(b)(6) witness, as she did offer
nearly seven (7) hours of substantive testimony. However, Ms.
Williams was largely unable to answer questions relating to
certain jobs for which plaintiffs applied and were not hired.
The Court‟s review of the deposition transcript and its
knowledge of the discovery to date indicates that her inability
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to testify is a result of defendants‟ failure to produce
documents to which plaintiffs believe they were entitled.
Specifically, defendants produced documents for requisition
numbers identified by plaintiffs, but not for every requisition
applied to by plaintiffs. Defendants made such production
pursuant to a believed agreement with plaintiffs. Plaintiffs
dispute that any such agreement was ever made. As a result, Ms.
Williams was largely unprepared to speak to those requisition
numbers. Accordingly, the Court will not order that defendants
produce a new 30(b)(6) witness. Rather, the Court will allow
plaintiffs to continue Ms. Williams‟s deposition, but only with
respect to the documents subsequently produced relating to the
requisition numbers that were not previously inquired into. In
that regard, the Court will limit Ms. Williams‟s continued
deposition to four (4) hours‟ time. Because Ms. Williams is
located in Bentonville, Arkansas, plaintiffs should coordinate
this deposition with that of Ms. Thomas, or arrange to conduct
the deposition via videoconference or telephone. Plaintiffs
shall have thirty (30) days from the date of this ruling to
complete Ms. Williams‟s deposition
Alternatively, the Court notes that at the June 5, 2014
discovery conference, plaintiffs‟ counsel indicated that if
defendants responded fully to Interrogatory 2 of plaintiffs‟
“revised (by agreement) interrogatories” dated June 18, 2013,
then additional 30(b)(6) testimony would not be required.
Accordingly, by agreement of the parties, defendants may provide
supplemental responses to this interrogatory as an alternative
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to Ms. Williams‟s continued 30(b)(6) deposition. See, e.g.,
Alexander v. F.B.I., 186 F.R.D. 137, 142-43 (D. D.C. 1998)
(citing United States v. Massachusetts Idus. Finance Agency, 162
F.R.D. 410 (D. Mass. 1995)) (allowing party to submit questions
to which it did not receive answers at 30(b)(6) deposition via
interrogatories). Should the parties agree to proceed via
interrogatory, then defendants shall have thirty (30) days from
such agreement to provide their written responses. Accordingly,
based on the foregoing, the Court GRANTS in part plaintiffs‟
motion to compel with respect to the 30(b)(6) issue.
C. Production of Documents Re: Plaintiffs’ Employment
Applications at Wal-Mart
Plaintiffs move to compel the production of “each and every
job requisition for which the plaintiffs applied [] since their
termination[…]” By letter dated July 18, 2014, defendants have
proposed conducting “a search for all positions/requisitions
that each of the Plaintiffs applied to between January 1, 2009
through July 15, 2014 and provide information comparable to that
previously provided and covered during the 30(b)(6) deposition
of Sharon Williams.” Defendants stated that it could have this
material to plaintiffs within fourteen (14) days of their
agreement to such a search. The Court finds that this is an
acceptable resolution of this portion of plaintiffs‟ motion to
compel. Therefore, the Court orders that defendants conduct this
search and produce all non-privileged responsive documents
within fourteen (14) days of this Order, and, in light of
defendants‟ proposed resolution, the Court DENIES as moot

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plaintiffs‟ motion to compel regarding plaintiffs‟ employment
applications.
D. ESI/Responses to Subpoena Duces Tecum Requests
Finally, plaintiffs seek to compel documents responsive to
their numerous subpoena duces tecum requests. Specifically,
plaintiffs request that the Court order their proposed ESI
searches. The parties submitted extensive briefing on the ESI
issue in November and December 2013. Thereafter, the Court
issued a ruling “so ordering” defendants‟ searches in large part
because plaintiffs‟ searches “would cast far too wide a net over
the universe of ESI, which would result in a burdensome amount
of irrelevant documents.” [Doc. #118, 14]. However, not wanting
to foreclose plaintiffs from meaningful discovery, the Court
nonetheless permitted plaintiffs to “make an application to the
Court for additional search terms if, after a review of the
documents produced and the depositions of other custodians, the
plaintiffs can make a showing that other relevant and responsive
documents exist.” [Id.].
As an initial matter, the Court notes that since plaintiffs
filed the motion to compel, defendants have produced, or in
short order intend to produce, documents responsive to
plaintiffs‟ amended second document requests, which may resolve
some of plaintiffs‟ issues concerning the sufficiency of
defendants‟ ESI searches. The Court has also ordered defendants
to produce certain documents in response to amended second
document requests, which may likewise alleviate plaintiffs‟
concerns.
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Nevertheless, although plaintiffs request the Court order
their ESI searches, plaintiffs fail to address, or otherwise
consider, the Court‟s initial concerns that plaintiffs‟ proposed
search terms were far too broad, and implicated an excessive
number of irrelevant documents. In light of the fact that
defendants have already conducted an ESI search, the Court is
further concerned that using all of plaintiffs‟ proposed search
terms may result in duplicative results. Finally, despite the
lengthy conferences addressing this very issue, the Court finds
that plaintiffs have largely failed to articulate or otherwise
make a concrete showing that other responsive and relevant
documents exist. Nevertheless, the Court is willing to afford
plaintiffs‟ one more chance to make such a showing at the August
18, 2014 discovery conference.

In this regard, plaintiffs

should be prepared to make a showing of the specific searches it
seeks for specific custodians. Plaintiffs must also be able to
make a showing by way of other documents produced and/or
deposition testimony taken to date, that relevant and nonduplicative documents exist.4 Accordingly, plaintiffs‟ motion to
compel with respect to the ESI issue is DENIED without prejudice
to the Court‟s reconsideration at the August 18, 2014 discovery
conference.
IV.

Request for Rule 37 Sanctions
Plaintiffs seek Rule 37 sanctions for defendants‟ alleged

discovery transgressions concerning the production of certain
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Plaintiffs should submit this information in writing to the Court by the
close of business on August 13, 2014. Failure to submit such information will
result in the denial of plaintiffs‟ motion with respect to the ESI issue.

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documents and designation of their 30(b)(6) witness.

At the

conclusion of all proceedings in this case, on application, the
Court will consider whether attorney‟s fees should be awarded
and if so, in what amount.

Accordingly, the Court DENIES

plaintiffs‟ requests for sanctions without prejudice to renewal
at the conclusion of this case.5
V.

Conclusion
Therefore, for the reasons stated, plaintiffs‟ motion to

compel is GRANTED IN PART AND DENIED IN PART.
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.
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 28th day of July 2014.

_______/s/__________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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The Court notes that nothing in this ruling should be construed as an
opinion on the merits of plaintiffs‟ requests for Rule 37 sanctions.

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