MURRAY v. WAL-MART STORES INC et al

Filing 52

AMENDED MEMORANDUM DECISION AND ORDER ON DISCOVERY DISPUTE By MAGISTRATE JUDGE JOHN H. RICH III. (Attachments: # 1 "Exhibit A", # 2 "Exhibit C")(ccs)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DAVID E. MURRAY,
Plaintiff
v.
WAL-MART STORES, INC., et al.,
Defendants

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No. 2:15-cv-00484-DBH

AMENDED MEMORANDUM DECISION AND ORDER ON DISCOVERY DISPUTE1
Following a January 6, 2017, telephone hearing on the parties’ discovery dispute, the
parties have submitted simultaneous letter briefs and responses addressing whether a claim of
attorney-client or work product privilege can withstand a request by the plaintiff for substantially
verbatim notes taken during his interview, as part of an investigation predating this litigation.
Treating the instant discovery dispute as a motion to compel compliance with a request for
supplementation of the defendants’ responses to the plaintiff’s request for production of documents
(“RFPs”) Number 15, I GRANT the motion, and find that the privilege does not prevent the
disclosure of the interview notes.
I. Factual Background
David Murray, a former Market Manager for the defendant Wal-Mart2, alleges that the
defendant engaged in acts of discrimination and retaliation against him following his complaints
about the behavior of two of his fellow market managers. Specifically, the plaintiff alleges that
several of his colleagues made repeated racist and sexist comments and engaged in acts of

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This Amended Memorandum Decision attaches as exhibits the two excerpted deposition transcripts cited herein
and corrects a typographical error to the page number of the last cited excerpt at p.5, infra.
2
The defendants in this case are both Wal-Mart, Inc. and a subsidiary, Wal-Mart Stores, East, L.P. For the purposes
of this decision, the defendants will be referred to collectively as “Wal-Mart.”

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discrimination, see Complaint (ECF No. 1-1) ¶ 1. In response, the plaintiff states that he followed
the proper internal corporate procedure in reporting this behavior to Wal-Mart management, see
id. ¶ 2. The plaintiff alleges that, among other actions, Wal-Mart failed to properly investigate his
allegations, removed stores from his supervision, gave him poor performance reviews unsupported
by objective metrics and supported the other two market managers in their subsequent claims
against the plaintiff, see id. ¶¶ 2, 25-38. The plaintiff filed a formal discrimination complaint
within Wal-Mart in 2013 and a claim of discrimination and retaliation with the Maine Human
Rights Commission and the Equal Employment Opportunity Commission in 2014, see id. ¶¶ 26,
39-49. At various times, Wal-Mart legal staff and outside counsel were involved in investigations
related to both the plaintiff’s claims, and claims against the plaintiff made by the market managers
at issue, see id. ¶ 30. The plaintiff claims he was “constructively” discharged in 2015 and officially
terminated in 2016, see First Amended Complaint (ECF No. 36) ¶¶ 52-52A. He seeks back pay
and benefits, compensatory and punitive damages, injunctive relief and attorney fees.
In 2014, Alan Heinbaugh, one of the market managers the plaintiff complained of,
discussed with Wal-Mart officials what he thought to be improper “markdown” practices at stores
overseen by the plaintiff, see Deposition of Alan Heinbaugh, 91:1-92:16, attached hereto as
“Exhibit A.” Specifically, Heinbaugh alleged that those stores were not following Wal-Mart
procedure in marking down or eliminating old and damaged stock, resulting in a manipulation of
profit and loss statements, see id. In response, Wal-Mart hired outside counsel to conduct an
investigation, see Report of Hearing and Order Re: Discovery Dispute, at 2 (ECF No. 46). As part
of this investigation, Investigator Brandie Patton interviewed the plaintiff, and took notes of his
responses, see id. at 5. In her deposition, she stated that, in sum and substance, she attempted to
take verbatim notes of the plaintiff’s responses, and, when writing a subsequent report, relied on

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the notes of others present to fill in any information she may have missed about the plaintiff’s
responses, see Deposition of Brandie Patton, 45:1-49:17, attached hereto as “Exhibit C.” The
plaintiff now seeks the production of these notes.
II.

Discussion

The plaintiff argues that he is entitled to the notes of the interview because there exists an
exception to the traditional attorney-client privilege under Fed. R. Civ. P. 26(b)(3)(C) when a party
to the litigation requests their own previous statements3.
Rule 26(b)(3)(C) addresses previous statements of the parties found in trial preparation
materials. It provides, in pertinent part, that “[a]ny party or other person may, on request and
without the required showing, obtain the person’s own previous statement about the action or its
subject matter.”

In addition, Rule 26(b)(3)(C)(ii) defines a previous statement as “a

contemporaneous stenographic, mechanical, electrical, or other recording – or a transcription of it
- that recites substantially verbatim the person’s oral statement.”
For their position that the notes are protected by the attorney client-privilege, the
defendants cite the seminal 1980 Supreme Court case of Upjohn Co. v. U.S., 449 U.S. 383 (1981),
which held that attorney-client privilege extended to communications between counsel and
employees at every level of a corporation. This general holding in Upjohn, however, does not
displace the clear language of Fed. R. Civ. P. 26(b)(3)(C). The rule explicitly grants a party access
to its own previous statement in the hands of an opponent as a matter of right and without any

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The plaintiff preemptively argues, in the alternative, that the interview notes at issue are not covered by attorneyclient privilege or the work product doctrine, because Wal-Mart has not shown that the notes were created for the
purposes of providing legal assistance, nor that the investigation was conducted in anticipation of litigation. See,
e.g. Texaco Puerto Rico, Inc., v. Department of Consumer Affairs, 60 F.3d 867 (1st Cir. 1995); Allied Irish Banks v.
Bank of America, N.A., 240 F.R.D. 96 (S.D.N.Y. 2007); Litton Systems, Inc. v. American Telephone and Telegraph
Co., 1979 U.S. Dist. Lexis 13363 (S.D.N.Y. 1979). The defendants also raises the issues of attorney–client privilege
and work product, which I discuss below.

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particularized showing as to why it is entitled to what may otherwise be attorney work product.
The Rule was amended in 2007 to clarify that any party, even a party to the action, was entitled to
their previous statements. As the Advisory Committee Notes state: “Former Rule 26(b)(3)
expressly made the request procedure available to a nonparty witness, but did not describe the
procedure to be used by a party. This apparent gap is closed by adopting the request procedure,
which ensures that a party need not invoke Rule 34 to obtain a copy of the party's own statement.”
Fed. R. Civ. P. 26 Advisory Committee Note to 2007 Amendment. Even earlier, the Advisory
Committee Note to a 1970 amendment to Rule 26(b)(3) stated: “An exception to the requirement
of this subdivision [regarding trial preparation materials] enables a party to secure production of
his own statement without any special showing,” and that such a statement “may of course be that
of plaintiff or defendant…” Fed. R. Civ. P. 26 Advisory Committee Note to 1970 Amendment.
The reason for this rule is simple and based in fairness. The out-of-court statement of a
party-opponent can be admitted at trial for the truth of the matter asserted therein as non-hearsay
under F.R.E. 801(d)(2). At a minimum, the party should be entitled to examine a statement that
can be used at trial against her or him. The opponent possessing the statement should not be in a
position to shield it behind the attorney-client or work product privilege simply because the
statement was made to a lawyer or in furtherance of an investigation. That is especially the case
in a situation where, as here, the statement is made before ligation and given to a lawyer by a nonrepresented party.
The fact that outside counsel was retained by Wal-Mart to undertake the markdown
investigation involving the plaintiff is of no moment. The right of the party to see their own
statements related to the subject matter of the litigation, whether that statement was made before
or after a formal lawsuit had been filed, outweighs a claim of attorney-client privilege.

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There is no dispute that Mr. Murray is a party and that his previous statement was taken by
an investigator and attorneys from an outside firm in the course of the markdown investigation.
Under these facts, the plaintiff is entitled to Investigator Patton’s notes about his responses given
during the interview. There remains, however, the question of whether Investigator Patton’s notes
qualify as the proper form of the plaintiff’s statement.
As noted, Fed. R. Civ. P. 26(b)(3)(C)(ii) requires that the statement be “a contemporaneous
stenographic, mechanical, electrical, or other recording - or a transcription of it - that recites
substantially verbatim the person’s oral statement.”
Investigator Patton conducted the inquiry and took contemporaneous notes of the plaintiff’s
response. She stated in her deposition that she attempted to take a near verbatim transcription, and
that the only reason her notes would be lacking in that regard would be because “sometimes I am
not physically quick enough to get everything.” Deposition of Brandie Patton, 49:12-17, attached
hereto as “Exhibit C.” In that circumstance, she would supplement her final write-up of the
interviewee’s statement with the notes of others in the room, in the hopes they caught whatever
she missed. Id. On that record, I find that Investigator Patton’s notes of the plaintiff’s responses
during his markdown interview satisfy the requirement of Fed R. Civ. P. 26(b(3)(C)(ii). See also
Casella v. Hugh O’Kane Elec. Co. Inc., 2000 WL 1649513 (S.D.N.Y. 2000) (Notes of defendant’s
pre-litigation interview of plaintiff requested under 26(b)(3)(C) were substantially verbatim and
should thus be turned over).
The defendants argue that when an investigator hired by a company takes notes during the
course of a relevant interview, and the company’s attorney in turn relies on those notes, the
investigator’s notes function similar to those of an attorney. That is to say, revealing what is
contained in the notes, whether produced by an attorney, or an attorney’s agent, may also reveal

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the attorney’s thought processes and legal conclusions. See Baker v. General Motors Corp., 209
F.3d 1051, 1054 (8th Cir. 2000). The defendants then argue that if an investigator’s interview notes
constitute such work product, then they are as privileged as those generated by attorneys under the
same circumstances. See, e.g. Gerber v. Down East Community Hospital, 266 F.R.D. 29 (D. Me.
2010); Peterson v. Wallace Computer Services, Inc., 984 F.Supp. 821 (D. Vt. 1997); O’Connor v.
Boeing North American Inc., 216 F.R.D. 640 (C.D. Cal. 2003).

The interview notes here in

question, however, are not the type of work product that would reveal legal thought processes or
divulge legal strategies. They are, instead, a near-verbatim transcription of the questions asked
and the plaintiff’s responses. A transcription (or close approximation) does not raise the same
concerns that selected note-taking may, since the latter highlights what the note-taker, be they an
investigator or attorney, thinks is relevant and important. As such, as to the verbatim notes here
in dispute, no privilege applies.
Finally, the defendants argue that even if no privilege attaches, the interview notes should
be deemed work product and the plaintiff should be denied access to them because he has not made
the requisite showing that he has a “substantial need” for the information because he can obtain
the information from another source. See Gerber v. Down East Community Hospital, 266 F.R.D.
at 34. This argument presupposes that the verbatim interview notes here are work product, which
I have found they are not. Moreover, even assuming arguendo that they are work product, the
plaintiff is entitled to them under the plain meaning of Fed. R. Civ. P. 26(b)(3)(C), and need make
no further showing. It would be unreasonable to hold that a plaintiff’s recollection of questions
asked and answers given in an interview more than two years ago would allow him to sufficiently
inform his attorney as to the critical portions of the interview, or would approximate a substantially
verbatim transcription that exists in the defendant’s possession. This fact establishes that the

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plaintiff cannot obtain the information from another source, even if that other source in this case
is himself.
III. Conclusion
For the foregoing reasons, the Motion is GRANTED.

NOTICE
In accordance with Federal Rule of Civil Procedure 72(a), a party may serve and file
an objection to this order within fourteen (14) days after being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right to review by the
district court and to any further appeal of this order.

Dated this 13th day of March, 2017.

/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

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