Hannah v. Walmart

Filing 169

RULING granting in part and denying in part 163 Third MOTION to Compel and for Sanctions; and granting in part plaintiffs' requests for additional document production. Signed by Judge Holly B. Fitzsimmons on 9/4/2014. (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’ THIRD MOTION TO COMPEL AND FOR SANCTIONS
AND OTHER PENDING DISCOVERY ISSUES
Pending before the Court is a motion by defendants Wal-Mart
Stores, Inc. and Wal-Mart Stores East, L.P. (“defendants” or
“Walmart”), seeking an order holding plaintiffs Kim Hannah, Tom
Irving, and Michael Barham (collectively the “plaintiffs”) in
contempt and compelling plaintiffs to respond to defendants’
requests for production in compliance with the Court’s June 4,
2014 ruling on defendants’ motion to compel. [Doc. #163].
Defendants also seek the imposition of sanctions. Plaintiffs
oppose defendants’ motion. [Doc. #167]. Also pending before the
Court are several other discovery concerns raised by plaintiffs
at the August 18, 2014 discovery conference.

For the reasons

that follow, the Court GRANTS in part and DENIES in part
defendants’ third motion to compel and for sanctions. [Doc.
#163]. The Court GRANTS in part plaintiffs’ requests for
additional document production.
I.

BACKGROUND
The Court presumes familiarity with the procedural and

factual background, as well as the parties’ prior discovery

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obstacles, which are detailed at length in the Court’s previous
rulings and orders. See Doc. ## 87, 118, 127, 153, 154, 160-62.
On August 18, 2014, the Court held an in-person discovery
conference on the record to address the matters raised in
defendants’ third motion to compel, and other unresolved
discovery issues.
II.

DISCUSSION

A. Outstanding Issues Re: Plaintiff’s Fact Discovery
1. Deposition of Ann Thomas
On July 28, 2014, the Court granted plaintiffs’ request to
depose Ann Thomas, and provided plaintiffs thirty (30) days in
which to complete her deposition. [Doc. #160, 3-4]. Shortly
after the Court’s July 28 ruling, Ms. Thomas underwent back
surgery and has been unable to sit for her deposition. Defense
counsel is awaiting notification of when Ms. Thomas will return
to work, and will provide this information to plaintiffs when it
becomes available. Therefore, plaintiffs shall have until
October 8, 2014 to complete Ms. Thomas’s deposition.
2. Continued Deposition of Sharon Williams
On July 28, 2014, the Court granted in part plaintiffs’
motion to compel a substitute 30(b)(6) witness. [Doc. #160, 46]. Rather than substitute for defendants’ designated 30(b)(6)
witness, Sharon Williams, the Court ordered that defendants make
Ms. Williams available for an additional four (4) hours of
testimony.

At the August 18, 2014 conference, plaintiffs raised

issue as an issue the fact that Ms. Williams did not have any
personal knowledge regarding the decision makers for each Wal2

Mart position for which plaintiffs subsequently applied and/or
why the successful candidate was hired. To the extent the Court
construes plaintiffs’ argument at the August 18, 2014 conference
as an oral motion for reconsideration of the July 28, 2014
order, it is denied as untimely. See D. Conn. L. Civ. R. 7(c)
(“Motions for reconsideration shall be filed and served within
fourteen (14) days of the filing of the decision or order from
which such relief is sought […]”) (emphasis added).
Nevertheless, the Court reminds defendants that, “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). The Court will likewise permit plaintiffs until
October 8, 2014 to complete Sharon Williams’s deposition, in
light of the fact that she, like Ann Thomas, is located in
Bentonville, Arkansas, and these depositions should be
coordinated to the extent possible.
3. Defendants’ Document Production
An ongoing theme, plaintiffs continue to take issue with
defendants’ document production to date. On July 28, 2014, the
Court issued a ruling sustaining in part and overruling in part
defendants’ objections to plaintiffs’ amended second document
requests. [Doc. #161]. In that ruling, the Court afforded

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plaintiffs an opportunity to address why defendants’ document
production was insufficient as to certain requests.
Request 1: As to the Court’s ruling on the first request,
at the August 18, 2014 discovery conference, plaintiffs
requested that the Court either order the production of the
deposition transcripts sought, or allow plaintiffs’ counsel
additional time to review the deposition transcripts. To the
extent plaintiffs seek the production of the deposition
transcript copies, the Court denies this as an untimely request
for reconsideration. See D. Conn. L. Civ. R. 7(c), supra. The
Court will however, permit plaintiff an additional ten (10) days
from the date of this ruling to review the listed deposition
transcripts.
Request 2: In response to request 2, defendants produced
the HPROs for Sharon Burns, Stan Golembewski, Ilfrandt “Fran”
St. Fleur, Brian West, Thomas Burns, Sergio Mendez, Brian West,
Alan Nasson, Phil Morris, Tony Restuccia, Hank Mulaney, and/or
Baldomera Silva to the extent that they had not already done so.
Plaintiffs seek the personnel or employee files and resumes for
these individuals and for John Leslie, John Oswald, Cleveland
Williams, Charles Constable, David Augustine1, and Lance Sovine.
At the August 18, 2014 discovery conference, plaintiffs
argued that the HPROs produced do not provide satisfactory
information. Defendants maintain their objection to producing
the documents sought. After hearing argument of counsel, the
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Plaintiffs claim that they supported the discrimination claims of
Leslie, Oswald, C. Williams, Constable, and Augustine. Plaintiffs
further contend that Phil Morris wanted to terminate the employment of
any African-American MHRM who supported claims of race discrimination.
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Court will not require defendants to produce the resumes or
personnel files sought. Defendants will, however, within thirty
(30) days of this ruling produce the performance evaluations and
coachings from 2008 through 2010 for the following individuals,
to the extent they exist and have not already been produced:
plaintiff Hannah, plaintiff Irving, plaintiff Barham, Sharon
Burns, Stan Golembewski, Fran St. Fleur, Brian West, Thom Burns,
Sergio Mendez, Lauri Canales, Alan Nasson, Phil Morris, Brian
Broadus, Baldomera Silva, Tony Restuccia, and Lance Sovine.
Request 3: Request 3 seeks the personnel or employee files
of all Market Level Human Resources Managers who have served
anywhere in Connecticut at any time since 2009. In response,
defendants produced the HPROs for Sharon Burns, Ardella Coleman,
Lise Gramolini, Lauri Canales, Fran St. Fleur, Ron Ealey, Sergio
Mendez, and Jackie Janesk. Plaintiffs challenge the sufficiency
of information provided on the documents produced. The Court
will not require defendants to produce the personnel files
sought. Defendants will, however, within thirty (30) days of
this ruling produce the performance evaluations and coachings
from 2008 through 2010 for the following individuals, to the
extent they exist and have not already been produced: Ardella
Coleman, Lise Gramolini, Ron Ealey, and Jackie Janesk.
Request 4: Plaintiffs seek the exit interview forms for
John Leslie, John Oswald, Cleveland Williams, Charles Constable,
and David Augustine. The Court declines this request in light of
the Redbooks produced, and tangential relationship of these
individuals to the pending litigation.
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Request 7: Request 7 seeks the personnel or employee files
of all Market Human Resources Managers and Market Asset
Protection Managers who have served anywhere in Connecticut at
any time since 2009. In response, defendants produced the HPROs
for Sharon Burns, Ardella Coleman, Lise Gramolini, Fran St.
Fleur, Ron Ealey, Sergio Mendez, and Jackie Janesk, Lauri
Canales, Thom Burns, Stan Golembewski, Joe Troy, Tiffany
Venditti, Salvatore Lupo, Brian Widmer, Mark Turner, Terriann
Abarzua, and Anthony Williams. Plaintiffs challenge the
sufficiency of information provided on the documents produced.
The Court will not require defendants to produce the personnel
files sought. Defendants will, however, within thirty (30) days
of this ruling produce the performance evaluations and coachings
from 2008 through 2010 for the following individuals, to the
extent they exist and have not already been produced: Joe Troy,
Tiffany Venditti, Salvatore Lupo, Brian Widmer, Mark Turner,
Terriann Abarzua, and Anthony Williams.
Request 18: Plaintiffs did not raise any issue with
documents produced in response to this request at the August 18,
2014 discovery conference. Therefore, the Court will not order
any additional production in response to this request.
Request 23: Request 23 is largely duplicative of requests 3
and 7. The Court will not order additional production in
response to this request, in light of the Court’s orders above.
Request 30: Plaintiffs did not raise any issues in response
to the ruling on request 30. Therefore, the Court will not order
any additional production in response to this request.
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Verification of Document Production: Once defendants have
completed their document production, defendants will provide
plaintiffs with a written verification that, after conducting a
diligent search, the defendants have produced all responsive
documents requested by plaintiff and/or ordered by the Court.
4. Fact Witness Depositions
Plaintiffs have yet to complete other fact witness
depositions.

As set forth in this Court’s June 6, 2014

Memorandum of Decision and Order [Doc. #153, 1-2], the Court
permitted the depositions of Anthony Restuccia and Brian
Broadus. Plaintiffs have completed Mr. Restuccia’s deposition,
but have yet to depose Mr. Broadus. Plaintiffs shall have until
October 8, 2014 to complete Mr. Broadus’s deposition. Although
the Court previously reserved ruling on whether plaintiffs could
depose Hank Mulaney pending Mr. Restuccia’s deposition [id. at
2], the Court now DENIES plaintiffs’ request to depose Mr.
Mulaney in light of the fact depositions completed to date,
plaintiffs’ failure to raise this issue in the August 18
discovery conference, and the need to close fact discovery.
B. Defendants’ Third Motion to Compel and for Sanctions
Defendants have filed a third motion to compel, which
relates to the Court’s June 4, 2014 ruling granting in part and
denying in part defendants’ second motion to compel. [Doc.
#154]. Defendants also seek the imposition of sanctions for
plaintiffs’ failure to comply with the Court’s June 4 ruling.
The Court ordered in the June 4 ruling that, “If a
plaintiff does not have any documents responsive to a request,
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that plaintiff shall provide a sworn statement that despite a
diligent search, all responsive documents have been produced.”
[Id. at 5]. The Court further ordered that plaintiffs serve
amended discovery responses identifying by bates number which
documents are responsive to each request. [Id.]. Defendants
contend in their motion that plaintiffs have failed to provide
verifications that comply with the Court’s June 4 ruling.
Defendants also request that plaintiffs remove their objections
from the consolidated responses in light of the Court’s
overruling them in the June 4 ruling. At the August 18, 2014
discovery conference, plaintiffs’ counsel indicated that she had
served declarations verifying plaintiffs’ responses to
defendants’ discovery requests. Plaintiffs’ counsel further
represented that plaintiffs have no other documents to produce.
Defense counsel responded that the verifications provided are
“close”, but that defendants seek verifications complying with
the Court’s June 4 ruling. The Court GRANTS defendants’ request.
Within ten (10) days of this ruling, plaintiffs will provide
defendants with a verification that fully complies with the
Court’s June 4 ruling. Plaintiffs additionally will amend their
discovery responses to remove any objections overruled by the
Court in the June 4 ruling, as well as clarify which plaintiffs
produced which responsive documents, to the extent this has not
already been completed.
Defendants next contend that, “there appear to be large
numbers of documents missing from what the plaintiffs have
produced,” and request that the Court compel plaintiffs to
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produce the missing pages or explain why they have not been
produced. [Doc. #164, 5-6]. During the August 18, 2014 discovery
conference, the Court addressed the gaps in document production,
which counsel for plaintiffs and defendants represented have
since been resolved. Therefore, the Court denies this request as
moot.
The discovery agenda submitted in advance of the August 18
conference further lists defendants’ concerns regarding
plaintiffs’ tax returns and medical authorizations. With respect
to the medical authorizations, defense counsel represented that
there is no issue, so long as plaintiffs have “looked for
everything”, which plaintiffs’ counsel confirmed. As to the tax
returns, defense counsel stated that plaintiffs Hannah and
Irving’s tax returns are incomplete, and plaintiff Barham did
not file tax returns for the time frame at issue. Plaintiffs’
counsel represented that if tax returns have not been provided,
it is because plaintiffs have yet to file. Plaintiffs’ counsel
further represented that should plaintiffs file taxes for the
applicable time period, they will supplement their production.
Accordingly, the Court also finds this issue moot. Finally,
defendants raised an issue with the organization and labeling of
plaintiffs’ exhibits, but waived this issue at the August 18,
2014 discovery conference.
Defendants also seek the imposition of sanctions and/or to
hold plaintiffs in contempt as a result of their non-compliance
with the Court’s June 4 ruling. Specifically, defendants request
that Court enter a default judgment against plaintiffs or,
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alternatively, “to award such other sanctions as it deems fit,
such as taking adverse inferences against Plaintiffs due to
their non-compliance; prohibiting Plaintiffs from supporting
their claims with documents that have not been produced to date;
and/or treating Plaintiffs in contempt of court.” [Doc. #164,
8]. In light of the fact that the parties resolved the majority
of defendants’ motion to compel at the August 18, 2014 discovery
conference, the Court declines to enter the relief requested on
the current record.
C. Status and Scheduling of Expert Discovery
At the August 18, 2014 discovery conference, the parties
discussed the entry of a revised scheduling order, including the
status and scheduling of expert discovery. The Court will issue
a Second Amended Scheduling Order memorializing the dates
discussed with respect to expert discovery. This matter is
nearly two years old and has been plagued with delays and
extensive discovery disputes. It is time for fact discovery to
close and to advance this matter to trial. Accordingly, the
Court will also enter a fact discovery deadline and dispositive
motions deadline.
III.

Conclusion
Therefore, for the reasons stated, defendants’ third motion

to compel and for sanctions [Doc. #163] is GRANTED in part and
DENIED in part. Plaintiffs’ requests as to certain outstanding
discovery items are also 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
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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 4th day of September 2014.

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

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