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)

Murray v. Wal-Mart Stores

Deposition of: Brandie Patton 30(b)(6)

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EXHIBIT

C

UNITED STATES DISTRICT COURT
District of Maine

Case No. 2:15-cv-00484-DBH

DAVID E. MURRAY,

]

Plaintiff

]

vs.

]

WAL-MART STORES,

]

Defendant

]

TELECONFERENCE DEPOSITION OF:

BRANDIE PATTON
30(b)(6)

Taken before Melinda Gay Simon, Notary Public, in
and for the State of Maine, on December 6, 2016, at the
offices of Bernstein Shur, 100 Middle Street, Portland,
Maine, commencing at 10:41 a.m., pursuant to notice
given.
APPEARANCES:

FOR THE PLAINTIFF:

MAX I. BROOKS, ESQ.

FOR THE DEFENDANT:

RONALD W. SCHNEIDER, JR., ESQ.
AMY SELLARS, ESQ.

Also present:

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David Murray

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Deposition of: Brandie Patton 30(b)(6)

Murray v. Wal-Mart Stores

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for one second.
(Discussion off the record.)
BY MR. BROOKS:
Q. So I'm directing you to Exhibit 61, and I'm going to
direct you to the second page of that. So what
we're looking at is an e-mail from Deltrinae Tucker
to David Murray.
A. Deltrinae.
Q. How do you pronounce it?
A. Deltrinae.
Q. And for the court reporter, that's spelled D-E as in
elephant L-T-R-I-N-A-E. This is an e-mail where
she's telling Mr. Murray that she feels, "as if your
concerns should be best addressed by your divisional
human resource director. I have already spoken to
him this morning and provided him with your initial
concerns and the notes from our conversation
yesterday". So what she is saying is that without
asking Mr. Murray she has brought the details of his
complaint to someone in the divisional level. Is
that how you understand this e-mail as well?
MR. SCHNEIDER: Objection.
A. Yes.
BY MR. BROOKS:
Q. Now -40
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A. Sorry.
Q. So that is a breach of the confidentiality policy
for open-door communications, correct?
MR. SCHNEIDER: Objection.
A. I don't know that it's a breach of confidentiality,
but I would say that it is a misstep and probably
not how I would have proceeded.
Q. Okay. So it did not follow Wal-Mart policy to send
this e-mail, is that correct?
MR. SCHNEIDER: Objection.
A. That's not what I said. I said that according to
this e-mail it went to somebody within his division,
which is not what he would have preferred, but it
was still sent to someone who's in HR, and that
wouldn't have necessarily been a breach of
confidentiality in as much as a misstep in the best
possible way to handle it.
MR. SCHNEIDER: Max, I don't want to stop you
too soon.
MR. BROOKS: Do you need -MR. SCHNEIDER: Can we take a quick break?
MR. BROOKS: Sure.
MR. SCHNEIDER: Are you guys okay with a
quick break?
MS. SELLARS: Yeah, yeah.

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(A recess was taken.)
BY MR. BROOKS:
Q. So I'm going to -- we actually broke at a good point
because I wanted to also ask some questions about
kind of the investigations and investigators,
generally. Now some of the documents related to the
investigation, Brandie, list you as Brandie Patton,
CFI global investigator II, and I was wondering if
you could tell me what CFI means first.
A. It means certified forensic interviewer.
Q. Got it. So what does that mean, you are certified
by who?
A. By the CFI organization, which is ran by Wicklander
and Zulawski.
Q. So is that some sort of -- what do you have to do to
get the certification?
A. Take a course and then pass a test.
Q. Okay. And what does it mean that you're a global
investigator II?
A. In global investigations we have three levels of
investigator, investigator I, investigator II and
senior investigator.
Q. And can you explain how you moved from global
investigator to global investigator II?
A. Your supervisor has to recommend you for a promotion
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and then it goes through a committee and they have
to determine whether or not they feel like you are
at the level to be progressed from a I to a II.
That's how it worked in 2013.
Q. So how long have you been -- how long have you been
an investigator at Wal-Mart?
A. About six years.
Q. About six years. And what other kind of
qualifications do you have, do you have a B.A.?
A. I do.
Q. And do you have any post-baccalaureate -- I don't
know how you say that -- do you have any advanced
degree beyond a B.A.?
A. I do, I have a juris doctor.
Q. Okay. Got it. Now on some of the documents that
were provided related to your investigation there is
an entry that says "date of interview" and then
there will be a date, and then there will be an
entry that says "date of transcription" and then
there will be a date, and in most of those documents
I will represent to you it's a different date. Can
you -- is there a recording made and then later it's
transcribed?
A. No, sir, it's hand-typed or handwritten notes that
are later put into a report of interview.

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Murray v. Wal-Mart Stores

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Deposition of: Brandie Patton 30(b)(6)

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Q. So there's no recording made of any of these
interviews?
A. That is correct.
Q. Now is it important to have a witness when you're
doing an interview?
A. Our protocol is to have a witness present for
anybody who is a reporter or who is the subject of
an investigation.
Q. So a reporter would be the person who made the
complaint?
A. Yes, sir.
Q. And the subject of the investigation would be not
somebody who's going to support it with some
evidence but somebody who actually might be
implicated as a so-called wrongdoer. Is that fair
to say?
A. Yes.
Q. Okay. And the protocol otherwise does not call for
a witness to be present?
A. Correct.
Q. Why would you not tape record these interviews, can
you just explain that?
A. Because our protocol within global investigations is
that we do not record interviews.
Q. And do you know why that's the protocol?
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A. I do not.
Q. Does it seem strange to you?
MR. SCHNEIDER: Objection.
A. No, because -- sorry.
MR. SCHNEIDER: That's okay.
A. No, because it's been that way since I started
within global investigations.
BY MR. BROOKS:
Q. Have you ever done investigations for any other
company?
A. I have not.
Q. So you don't know if any other company has a policy
where they don't make recordings of important
interviews?
A. I do not.
Q. All right. There are a couple of different kinds of
documents that seem to come out of an interview, as
I understand the documents that were provided to us.
There's a document that seems to be created called a
report of interview and then there is a separate
document that seems to come out of the same
interview that's generally titled Investigating
Manager Interview Notes. Can you describe why those
two separate documents are created and what the
difference is between them?

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A. The interview notes are taken during the interview.
Q. Okay.
A. The report of interview -- we call them different
things now so bear with me. The report of interview
is transcribed later into a paragraph-like
transcription.
Q. Now you said that the interview notes are hand -well, maybe you didn't. Strike that. Are the
interview notes, the investigating manager interview
notes, are they typed or handwritten?
A. They can be both.
Q. They can be both.
A. I believe the ones for this investigation I typed.
Q. So you typed, and then this word transcribing or
transcription in this case, it's not what I would
think of necessarily as transcribing audio to an
exact transcript, instead it's, if I understand you
correctly, a process of kind of consolidating and
making a narrative out of raw notes. Is that a fair
characterization?
MR. SCHNEIDER: Objection.
A. I would say that, yes, it is.
Q. Okay. Now there are -- when a document is created
that's called investigating manager interview notes,
can you say with confidence that that would record
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the entirety of the conversation or are there cases
where you go off the record or there might be
conversations at the beginning and the end that are
not captured in the document titled Investigating
Manager Interview Notes?
A. That is correct.
Q. So which -- sorry, why don't you read back my
question again and maybe instead of saying that's
correct, if you could explain what you mean. She
will ask the question again.
(Pending question read back.)
MR. SCHNEIDER: And I'm going to object to
the question.
BY MR. BROOKS:
Q. So my question now is you said that's correct. It
was an either or question. If you could just
explain what you meant by yes, correct.
A. So, sorry, I forgot the first half of your question
and just answered the second half. Yes, there are
conversations before and after that aren't
necessarily recorded in the interview notes.
Q. Now are there times when you might go off the record
in the middle of the interview that wouldn't be
reflected in the notes?
A. Yes, yes, there are.

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Murray v. Wal-Mart Stores

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Q. Are there cases where things that are said off the
record -- strike that. So the report of interview,
which is I think -- I'm going to start over one more
time, sorry. The report of interview would reflect
only what's in the investigating manager interview
notes, not what would be said off the record before,
after or during the interview, is that correct?
A. No, that is not correct.
Q. So can you explain that -- why that is not correct?
A. Because we would also use the investigator -- or the
witnessing manager's notes as well.
Q. But is it fair to say -- okay, strike that. You
would not consider, however, things that were not
taken down in notes but were said off the record
before, after or during the interview, is that
correct?
A. That is not correct. I would consider everything
that occurred during the interview.
Q. And when you're saying you would consider that, you
say you would consider that when you create the
report of interview or you would consider it when
reaching your conclusions at the end of the
investigation?
A. I would consider it whenever I'm writing up the
report of interview.
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Q. So why do you go off the record?
A. I don't understand what you mean by off the record.
Q. Okay. That's a fair point. So why are there things
that happen before, after and in the middle of an
interview that in this otherwise very comprehensive
looking document you would not put down in your
investigating manager interview notes?
A. So in the beginning I give a preamble to everybody
that we talk with and we talk about confidentiality,
we talk about our retaliation policy and we talk
about the importance of keeping our conversation
confidential. Then in the end I normally thank them
for their time, that sort of thing. I don't write
those things down. In the middle, I'm hoping that
I'm able to capture everything. It's not always
possible. The other hope is that if I don't
actually write it down that I have remembered it
between the time that I did the interview and wrote
the report of interview or that it's in my
witnessing manager's notes.
Q. And this problem would go away, this memory problem,
if the protocol allowed you to record the interview,
is that correct?
MR. SCHNEIDER: Objection.
BY MR. BROOKS:

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I'm not sure what memory problem you're referring
to. Well, you were saying that you may sometimes
leave things out accidentally and you hope you
remember them later or maybe they're captured in the
other person's notes. From where I stand, that
sounds like a big workaround for just recording the
whole thing, so I'm saying none of these things
would exist as far as accurately capturing what was
said if you just recorded the interview, is that
correct?
MR. SCHNEIDER: Objection.
I don't recall saying that there was a big memory
issue. What I recall saying was that as I am typing
it down sometimes I am not physically quick enough
to get everything and that if I don't get it, our
hope is that it's in our witnessing manager's
interview notes.
Now what did you do other than conduct interviews to
gather information for this investigation? When I
say you, I don't mean you personally, but what did
Wal-Mart do other than conduct interviews to
investigate this issue?
I also requested some ESI, which is electronically
stored information, through our ISD department, and
what I requested was Paul Busby's e-mails. I
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believe I also requested his text messages from his
work-issued phone.
And you said something about ISD.
MS. SELLARS: Information.
Our Information System Services Division, ISD.
Information Services Division. Okay. Now did you
just request all of Paul Busby's e-mails and text
messages or did you request a certain subset of his
e-mails and text messages?
I requested a time period of his e-mails and text
messages.
And you requested all e-mails and text messages
within that time period?
I did.
And what was that time period?
I don't remember what the time period was listed on
the request.
Is that something you would be able to follow up on
and find out?
Yes, that will be recorded on the request.
So there's some sort of ESI request that you made to
ISD on some sort of form?
I believe that's what we were doing at the time,
yes.
Okay.
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