Phipps et al v. Wal-Mart Stores, Inc.
ORDER: The Motion ( 152 ) is GRANTED IN PART and DENIED IN PART. Defendant is ORDERED to produce non-privileged, non-protected documents responsive to Plaintiffs' Requests for Production Nos. 5, 6, and 7, without regard to whether such documents were shared with the "core decisionmakers" of Region 43. Signed by Magistrate Judge Jeffery S. Frensley on 3/7/18. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
CHERYL PHIPPS and SHAWN GIBBONS,
WAL-MART STORES, INC.,
Case No. 3:12-cv-01009
This matter is before the Court upon Plaintiffs’ Motion to Compel Production of
Documents. Docket No. 152. Plaintiffs have also filed a Supporting Memorandum of Law.
Docket No. 153. Defendant has filed a Response in Opposition. Docket No. 163. Plaintiffs
have filed a Reply as an integrated part of a document titled “Opposition to Defendant WalMart’s Motion to Quash the Subpoena to the Hay Group, Inc. and Reply in Support of Plaintiffs’
Motion to Compel Production of Documents.” Docket No. 174. For the reasons discussed
below, Plaintiffs’ Motion is GRANTED IN PART and DENIED IN PART.
THE DISCOVERY MATTERS AT ISSUE
In this employment discrimination class action, Plaintiffs allege that Defendant
discriminated against them because of their gender. See Docket No. 1. Among other claims,
Plaintiffs claim that “[Defendant’s] compensation policies, including its failure to require
managers to base pay decisions for individual employees on job-related criteria, such as
experience or documented performance, have had an adverse impact upon its female employees
in Region 43.” 1 Id. at 12.
The instant Motion seeks to compel Defendant to produce:
[A]ll documents related to its analysis of and changes to the
job descriptions, compensation policies, and performance
evaluations used for [Defendant’s] retail positions, in
response to Plaintiff’s Requests for Production of
Documents 5, 6, and 7. [Defendant] worked closely with a
third party consultant called the Hay Group on this project,
and thus Plaintiffs refer to this collection of documents as
“Hay Group documents” although that is not intended to
limit the request to documents created by the Hay Group. 2
Docket No. 153, p. 5.
Defendant responded to Requests for Production Nos. 5, 6, and 7 by objecting on the
basis of the attorney-client privilege and attorney work product doctrine, among other, more
general objections. Docket No. 124-3, p. 9-11. Further, in response to Requests for Production
Nos. 5 and 7, Defendant stated that “[i]n addition, [Defendant] objects to this Request on the
grounds that it is overbroad, not proportionate to the needs of this case, and to the extent it seeks
documents that are not relevant to Plaintiffs’ allegations regarding the challenged practices or the
alleged ‘core group of decisionmakers’ in Region 43.” Id. at 9.
Plaintiffs contend that these documents are “highly relevant to Plaintiffs’ disparate
impact claims.” Id. at 5. Defendant has withheld some of the Hay Group documents from
production, and argues that Plaintiffs are not entitled to discover them because: 1) Plaintiffs are
attempting to circumvent the Court’s prior Order mandating production only of responsive
The Plaintiffs in this matter all allege gender discrimination by Defendant in Defendant’s stores
located in an area of the country defined as “Region 43,” which includes Middle and Western
Tennessee, as well as portions of Alabama, Arkansas, Georgia, and Mississippi. Docket No. 1,
For convenience, the Court will also refer to the documents as “the Hay Group documents,”
without implication that Plaintiffs’ request is limited to documents created by the Hay Group.
documents that were provided to the Region 43 decision makers; 2) the Hay Group documents
are protected by attorney-client privilege; and 3) the Hay Group documents are protected by the
work product doctrine. See Docket No. 163. Plaintiffs dispute that the documents are protected
by either privilege or the work product doctrine, but assert that even if they were, Defendant has
waived those protections by producing “some Hay Group documents but not similar, related
documents . . . .” Docket No. 153 at 13.
LAW AND ANALYSIS
A. Discovery Under the Federal Rules of Civil Procedure
Federal Rule of Civil Procedure 26(b) provides that parties may obtain discovery
regarding any matter, not privileged, that is relevant to the claim or defense of any party. Fed. R.
Civ. P. 26(b)(5) sets out the steps that a party must take if it withholds information otherwise
discoverable based upon a claim of privilege or a claim that the information is protected by the
work product doctrine. The party asserting the privilege or work product protection has the
burden of showing that those protections apply. United States v. Roxworthy, 457 F.3d 590, 593
(6th Cir. 2006); United States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999). Fed. R. Civ. P.
37(a) provides that the Court may compel the disclosure or discovery of documents improperly
withheld after a request has been made under Fed. R. Civ. P. 34.
B. The Attorney-Client Privilege
Plaintiffs contend that the Hay Group documents are not protected by the attorney-client
privilege because they were not created for the purpose of seeking legal advice, but rather for
business purposes: “to create a new compensation structure applicable to [Defendant’s] retail
store employees . . . .” Docket No. 153, p. 11. Plaintiffs point to categories on Defendant’s
privilege log as further proof that the Hay Group documents had a business purpose. Id.
Plaintiffs also assert that “there is, as of yet, no evidence that the Hay Group was retained at the
direction of counsel, or for litigation purposes . . . .” Id. at 12. Plaintiffs assert that Defendant
has withheld documents that “include facts, not mental impressions of counsel.” Id. at 12.
Defendant responds that it hired the Hay Group to “assist it in responding to the Dukes
allegations,” and that the documents that Plaintiffs seek “were compiled and created in
conjunction with Hay Group’s advising the company through its attorneys during the course of
the Dukes litigation.” 3 Docket No. 163, p. 18. According to Defendant, “[t]he Hay Group’s
work facilitated [Defendant’s] counsel’s ability to advise the company.” Id. at 20 (internal
quotation marks and citation omitted). Defendant claims that Plaintiffs have had notice that
Defendant was withholding some Hay Group documents on the grounds of privilege “at least
since April 29, 2013 when [Defendant] served its privilege log in Dukes II” yet never challenged
that withholding until now, and thus, “[t]he challenge has long since been waived or forfeited.”
The Sixth Circuit has established the following elements with regard to attorney-client
(1) Where legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in
confidence, (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or the
legal adviser, (8) except the protection be waived.
Dukes is a previous employment discrimination case brought against Defendant in California,
that sought to be a nation-wide class action. Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137
(N.D. Cal. 2004). After the Supreme Court failed to uphold class certification in Dukes, “[t]he
original Dukes plaintiffs amended their complaint in the Northern District of California,
narrowing the scope of the proposed class to gender discrimination within four Wal-Mart regions
covering mostly California.” Docket No. 111, p. 5, citing Dukes v. Wal-Mart Stores, Inc., 2012
WL 4329009, *2 (N.D. Cal. Sept. 21, 2012) (“Dukes II”). A full discussion of these two cases
and their relationship to the current litigation can be found at Docket No. 111.
Arkwright Mutual Ins. Co. v. National Union Fire Ins. Co., No. 93-3084, 1994 U.S. App. LEXIS
3828, at *17-18 (6th Cir. Feb. 25, 1994), quoting U.S. v. Goldfarb, 328 F.2d 280 (6th Cir. 1964).
The Sixth Circuit has further held that “[i]t is, of course, well established that attorneyclient communications related to areas other than legal counseling, such as business advice, are
not privileged.” In re Search Warrant Executed at Law Offices of Stephen Garea, No. 97-4112,
1999 U.S. App. LEXIS 3861, at *4-5 (6th Cir. Mar. 5, 1999), citing In re Grand Jury Subpoena
Duces Tecum, 731 F.2d 1032, 1037 (2d Cir. 1984).
As Defendant has asserted the attorney-client privilege, it has the burden of
demonstrating that the privilege applies. Fed. R. Civ. P. 26(b)(5); In re Grand Jury Investigation
No. 83-2-35, 723 F.2d 447, 450 (6th Cir. 1983). Defendant’s argument that each document
“compiled and created” by the Hay Group is privileged because the Hay Group was working in
conjunction, or even at the behest of, Defendant’s counsel is unavailing. Even if these
documents were compiled and created by counsel itself, they would not necessarily be
privileged; rather, they would only qualify for that protection if they met the criteria discussed
above. Arkwright, 1994 U.S. App. LEXIS at 17-18. In those cases, if any, where Defendant can
establish by reference to these criteria that a document is privileged, then Defendant may protect
the document from production. Otherwise, the Court finds that the Hay Group documents are
not, as a group, protected by the attorney-client privilege.
C. The Work Product Doctrine
The work product doctrine states that a party may obtain discovery of documents
otherwise discoverable, and prepared in anticipation of litigation or for trial by or for another
party, or by or for that other party’s representative, only upon a showing that the party seeking
discovery has substantial need of the materials in the preparation of the party’s case and that the
party is unable, without undue hardship, to obtain the substantial equivalent of the materials by
other means. Fed. R. Civ. P. 26(b)(3).
The Sixth Circuit has articulated the “because of” test as the standard for determining
whether documents were prepared “in anticipation of litigation.” United States v. Roxworthy,
457 F.3d 590, 593 (6th Cir. 2006). There is a subjective component to this inquiry. Id. at 59394. A document is not protected by the work product doctrine “if it would have been prepared in
substantially the same manner irrespective of the anticipated litigation.” Id.
The Court has further clarified that if a document has more than one purpose, “the fact
that it also serves an ordinary business purpose does not deprive it of protection, but the burden
is on the party claiming protection to show that anticipated litigation was the driving force
behind the preparation of each requested document.” In re Professionals Direct Ins. Co., 578
F.3d 432, 439 (6th Cir. 2009) (internal quotation marks and citation omitted). Such documents
do not lose work product protection unless the documents would have been created in essentially
similar form irrespective of the litigation. Id.
The Federal Rules make clear that work product protection can extend not only to
documents produced by a party’s attorney, but also to documents produced by a third party:
Ordinarily, a party may not discover documents and
tangible things that are prepared in anticipation of litigation
or for trial by or for another party or its representative
(including the other party’s attorney, consultant, surety,
indemnitor, insurer, or agent).
Fed. R. Civ. P. 26(b)(3) (emphasis added).
The Sixth Circuit employs a burden-shifting process in order to determine whether a
party may obtain documents that are claimed as attorney work product:
The party seeking discovery must show that the documents
are relevant. The resisting party then must show that it or
its agent prepared the document in anticipation of litigation.
The discovering party must then show that it (1) has a
substantial need for the information, but (2) is unable to
obtain the substantial equivalent of the materials without
Stampley v. State Farm Fire & Cas. Co., 23 F. App’x 467, 471 (6th Cir. 2001), citing Toledo
Edison Co. v. G A Technologies, Inc., 847 F.2d 335, 339-40 (6th Cir. 1988); In re Air Crash
Disaster at Detroit Metro Airport on August 16, 1987, 130 F.R.D. 641, 644 (E.D. Mich. 1989).
Plaintiffs contend that the Hay Group documents are relevant because:
[I]n response to a claim of disparate impact focused on this
specific compensation practice, [Defendant] may defend
the policy by showing it is justified by business necessity.
42 U.S.C. § 2000e-2(k). The documents sought are those
which would be central to evaluating any claims by
[Defendant] that its policy was job related, valid, and
consistent with business necessity. The documents would
also provide critical information about the implementation
of a “neutralization adjustment” that attempted to eliminate
racial and gender disparities in pay, but only if measured by
the new pay structure, not the prior pay structure.
Docket No. 153, p. 9.
Defendant vigorously disputes that the Hay Group documents are relevant. Docket No.
163, p. 13-16. Specifically, Defendant responds that:
Plaintiffs’ own formulation assumes that the restructuring
had an “adverse impact”; they would have to prove this fact
at trial, yet they do not even suggest that the requested Hay
Group documents are necessary to discharge their
evidentiary burden. Instead, they suggest that the Hay
Group documents would pertain to [Defendant’s] defense
of business necessity. But [Defendant] need not mount any
defense if Plaintiffs cannot prove a disparate impact, and
will not rely on documents withheld as privileged to defend
itself in any event.
Id. at 14.
Defendant asserts that Plaintiffs’ Complaint does not contain any factual allegations
related to “nationwide policies implemented in 2004 that could be alleged to have had a disparate
impact on women in Region 43,” and thus, documents related to any such nationwide policy are
not relevant. Id. (emphasis in original). Defendant argues that “[t]he complaint contains no
allegations based on [Defendant’s] 2004 pay system changes because any claim based on those
changes would clearly be time-barred.” Id. at 15. Further, Defendant contends that Plaintiffs
have not connected their claims to the 2004 nationwide pay policy changes. Id. at 16.
After considering the Parties’ arguments, the Court finds that the Hay Group documents
are relevant for the purposes of discovery in this matter. The Court finds that if, as Plaintiff
alleges, compensation system changes that affected the pay of employees within Region 43 were
the result of decisions were made above the level of the Region 43 decisionmakers, with no
discretion left to those decisionmakers to modify or otherwise deviate from the upper-level
decisions, then documents reflecting those decisions are relevant to Plaintiffs’ claims of disparate
impact, regardless of whether they were shared with Region 43 decisionmakers
2. Preparation in Anticipation of Litigation
Plaintiffs dispute that the Hay Group documents were created in anticipation of
litigation, arguing that they were created in the course of business for business purposes. Docket
No. 153, p. 11-13. Plaintiffs contend that they are “not seeking to obtain discovery of the
thought processes of [Defendant’s] counsel, but only factual information that purports to
underlay [Defendant’s] major change in compensation policies, and the analyses and
recommendations of human resources consulting professionals retained for normal business
purposes.” Id. at 12-13.
Defendant responds that the Hay Group documents were not prepared in the course of
business, but rather:
At the instruction of [Defendant’s] legal department, the
Hay Group was retained in July 2003 to consult in
connection with the nationwide Dukes litigation, including
providing advice on [Defendant’s] pay and promotion
practices. Throughout their engagement, the Hay Group
reported to, and worked in close collaboration with,
[Defendant’s] in-house legal department and outside
counsel. Plaintiffs’ contrary assertion is simply incorrect
The documents and communications created by the Hay
Group exist because [Defendant] retained the Hay Group to
assist in responding to the Dukes allegations and to provide
advice to [Defendant’s] counsel concerning the company’s
pay and promotion systems.
Docket No. 163, p. 21-22 (internal citations omitted).
The Sixth Circuit has identified two factors to consider when assessing whether a
document was prepared in anticipation of litigation: “(1) whether that document was prepared
‘because of’ a party’s subjective anticipation of litigation, as contrasted with ordinary business
purpose; and (2) whether that subjective anticipation was objectively reasonable.” In re
Professionals Direct Ins. Co., 578 F.3d 432, 439 (6th Cir. 2009), citing Roxworthy, 457 F.3d at
594. The party resisting discovery bears the burden of demonstrating that the document was
prepared “in anticipation of litigation or for trial.” Toledo Edison Co. & Cleveland Electric
Illuminating Co. v. G A Technologies, Inc., 847 F.2d 335, 339 (6th Cir. 1988). A party may
satisfy this burden “in any of the traditional ways in which proof is produced in pretrial
proceedings such as affidavits made on personal knowledge, depositions, or answers to
interrogatories,” and the proof can be “opposed or controverted in the same manner.” Id.
“Where an ‘undisputed affidavit . . . is specific and detailed to indicate that the documents were
prepared in anticipation of litigation or trial,’ then the party claiming work product protection has
met its burden.” Roxworthy, 457 F.3d at 597, quoting Toledo Edison Co., 847 F.2d at 341. This
burden is not met “where the ‘only basis’ for the claim is an affidavit containing ‘conclusory
statement[s].’” Id., quoting Guardsmark, Inc. v. Blue Cross and Blue Shield of Tenn., 206
F.R.D. 202, 210 (W.D. Tenn. 2002).
Defendant refers to two sworn Declarations in support of its contention that the Hay
Group documents are protected attorney work product. Docket No. 163, p. 21-22, citing Docket
No. 168 (Declaration of Craig Rowley) and Docket No. 169 (Declaration of Derek Scott). Mr.
Rowley declares that he is a Senior Client Partner employed by the Hay Group and has personal
knowledge about the Hay Group’s work for Defendant. Docket No. 168, p. 1. Mr. Scott
declares that he is Defendant’s Senior Associate General Counsel and has personal knowledge
“about the circumstances surrounding [Defendant’s] hiring of the Hay Group to assess the Dukes
lawsuit.” Docket No. 169, p. 1. Sworn Declarations are one of “the traditional ways in which
proof is produced in pretrial proceedings.” Taken together, they indicate that the Hay Group
documents were prepared “in anticipation of litigation or trial,” that litigation and potential trial
being the Dukes litigation.
Plaintiffs have filed the sworn Declaration of Christine Webber, who declares that she is
counsel for Plaintiffs in this action and was also Plaintiffs’ counsel in Dukes. Docket No. 175, p.
1. Ms. Webber’s Declaration discusses Plaintiffs’ review of documents produced by Defendant
that reference the Hay Group and its work, as well as correspondence between the Parties
regarding these documents; however, the Declaration does not controvert Defendant’s
Declarations in their assertions that the Hay Group documents were prepared in anticipation of
litigation or trial, save for Ms. Webber’s statement that “[i]n 2017 when I and my colleagues
reviewed these documents, none appeared to us to be privileged or work-product, and thus there
was nothing to which we believed we needed to alert [Defendant].” Docket No. 175, p. 3. This
document does not undermine Defendant’s contention that the Hay Group documents were
prepared in anticipation of litigation or trial.
In their Reply, Plaintiffs attach further support for their argument that the Hay Group
documents were not prepared in anticipation of litigation: the contract between Defendant and
the Hay Group (Docket No. 178); emails and memoranda (Docket Nos. 179, 180), and excerpts
from the deposition of Defendant’s former Board Vice Chairman, Thomas Coughlin (Docket No.
176-2). Docket No. 174, p. 14. While the first of these (Docket Nos. 178, 179, 180), perhaps
unsurprisingly, do not refer directly to the Dukes or any other litigation, because they show that
the Hay Group was involved with Defendant’s actions regarding pay and promotion decisions,
they tend to substantiate Defendant’s claim that the Hay Group was assisting Defendant in
assessing and responding to the allegations in Dukes; allegations relating to pay and promotion
decisions. See, e.g., Docket No. 180, p. 2.
Regarding Mr. Coughlin’s testimony, the Court has reviewed the excerpts attached as
Exhibit 5, and does not find that this testimony contradicts Defendant’s assertion that the Hay
Group documents were prepared in anticipation of litigation or trial. See Docket No. 176-2.
Based on the portions chosen and attached by Plaintiffs, Mr. Coughlin seems to have had only a
vague sense of the Hay Group’s role and no personal involvement. See i.d. at 4-5, 14 (“I didn’t
deal directly with the Hay Group, I don’t think, at all. I don’t ever recall dealing with them
myself.”) Although Mr. Coughlin agreed with an email he was shown stating that the driving
force for “employing the Hay Group [was] to develop a new job classification and pay structure
that was (sic) internal equity and external competitiveness,” this statement discusses the driving
force behind employing the Hay Group, not the driving force behind the creation of the particular
documents that are at issue in this dispute. It is that driving force that is relevant. Roxworthy,
457 F.3d at 595. Further, Defendant has not taken the position that all documents relating to the
Hay Group are protected work product; rather, “Defendant has already produced around 1,500
documents relevant to the Hay Group’s work.” Docket No. 174, p. 5.
3. Substantial Need and Undue Burden
Once the resisting party has established that the document in question was prepared in
anticipation of litigation, the burden then shifts to the party seeking discovery to prove that it has
a substantial need for the material and is unable to obtain the substantial equivalent of the
material by other means without undue hardship. Stampley, 23 F. App’x at 471. When deciding
this issue, “attention is directed at alternative means of acquiring the information that are less
intrusive to the lawyer’s work and whether or not the information might have been furnished in
other ways.” Toledo Edison, 847 F.2d at 340.
In the present case, Plaintiffs have already received from Defendant “around 1,500
documents relevant to the Hay Group’s work.” Docket No. 174, p. 5. Plaintiffs have not shown
that they have a substantial need for these particular documents; instead, they assert that “. . .
[Defendant] may defend the policy by showing it is justified by business necessity,” and if so,
“[t]he documents sought are those which would be central to evaluating any claims by
[Defendant] that its policy was job related, valid, and consistent with business necessity.”
Docket No. 153, p. 9 (emphasis added). Plaintiffs present a hypothetical, and although the Court
has found that the documents are relevant, in a general way, to Plaintiffs’ claims, Plaintiffs have
not made the more particular showing that would demonstrate substantial need of these specific
documents. Plaintiff contends that it faces undue hardship because “Plaintiffs cannot recreate or
otherwise obtain the documents used by the Hay Group and [Defendant] to set new pay scales
and promotion criteria,” but Plaintiffs do not need these documents, if such exist, to demonstrate
that Defendant developed new pay scales and promotion criteria; they are entitled to the new pay
scales and promotion criteria themselves. Further, to the extent that Plaintiffs seek information
regarding Defendant’s compensation structure, including changes to this structure over time,
Plaintiffs can depose the relevant employees of Defendant and ask those questions. Similarly,
while Plaintiffs contend that “[i]t is not possible, in 2018, to obtain appropriate samples of
[Defendant] hourly associates and managers who worked for [Defendant] in 2003, to ask them
about their job duties,” Plaintiffs have not established or even argued that they have no source of
evidence as to hourly associates’ and managers’ job duties, in 2003 or at any other time.
Plaintiffs’ argument that “[e]ven if there were enough people still working at [Defendant] with
knowledge of 2003, [Defendant] would not permit Plaintiffs access to them with focus groups
and questionnaires like the Hay Group used” is similarly unavailing. Docket No. 174, p. 23-24.
Plaintiffs have not shown that current document production and deposition testimony does not
provide “the substantial equivalent of the materials,” rather that Plaintiffs would prefer to have
such evidence in other formats. This is not a showing of undue hardship, and, particularly when
coupled with Plaintiffs’ failure to demonstrate substantial need for the materials, does not
overcome work product protection.
Plaintiffs argue that Defendant has waived the protection of attorney-client privilege and
work product (although Plaintiffs dispute that such protections apply) through production of a
small number of documents (some of which are attached as Exhibits to Plaintiffs’ Motion) that
Plaintiffs contend prove that the Hay Group documents were prepared in the course of business,
and not in anticipation of litigation. Docket No. 153, p. 10-13. Plaintiffs assert that they sent
Defendant a letter on August 31, 2017, “requesting that the parties meet and confer regarding
these documents,” and that the Parties “exchanged further letters and spoke by phone regarding
this dispute” during the fall of 2017. Docket No. 153, p. 7.
Defendant responds that it was unaware that these documents had been produced in the
Dukes litigation until Plaintiffs raised the issue in the course of correspondence between the
Parties in the fall of 2017, and that it was “[p]rompted by Plaintiffs’ disclosure of the
confidential documents filed under seal with their motion,” filed on December 27, 2017, to send
letters to Plaintiffs on January 6 and January 10, 2018, requesting return of the documents
pursuant to the “Stipulation Regarding Inadvertent Disclosure of Privileged Material, filed in
Dukes on February 25, 2013 . . . which governed the production from which those documents
came.” Docket No. 163, p. 9-12, citing Dukes, No. 01-cv-02252, Docket No. 856 (N.D. Cal.
Sept. Feb. [sic] 25, 2013).
Plaintiffs reply at length in a 30-page document that is designated as an opposition to
Defendant’s Motion to Quash the Subpoena to the Hay Group as well as a reply to the instant
Motion. Docket No. 174. Citing Federal Rule of Evidence 502(b), Plaintiffs argue that
Defendant did not take reasonable steps to prevent disclosure of Hay Group documents during
Dukes II because it produced “around 1,500 documents that reflect upon the Hay Group’s work.”
Id. at 18. Plaintiffs further argue that Defendant did not promptly take steps to rectify the error,
because it “did not take any steps to discover its inadvertent production or to claw any of these
documents back until years after they were produced, and only did so after Plaintiffs alerted them
to certain documents through their Motion to Compel.” Id. Plaintiffs further assert that
“[Defendant’s] counsel did not object to or seek to claw back similar documents used as
deposition exhibits during a Dukes I deposition of Thomas Coughlin,” and that “a brief, one-hour
search of [Defendant’s] production in the Dukes litigation yielded no fewer than fifteen
documents that are near duplicates of the documents [Defendant] now says are privileged and
has attempted to claw back.” Id. at 18-19.
Waiver of the attorney-client privilege has been defined as follows:
As a general rule, the “attorney-client privilege is waived
by voluntary disclosure of private communications by an
individual or corporation to third parties. In addition, a
client may waive the privilege by conduct which implies a
waiver of the privilege or a consent to disclosure.” The
prevailing view is that once a client waives the privilege to
one party, the privilege is waived en toto.
Tenn. Laborers Health & Welfare Fund v. Columbia/HCA Healthcare Corp., 293 F.3d 289, 294
(6th Cir. 2002) (internal quotation marks and citations omitted). Federal Rule of Evidence
502(b) further provides that:
When made in a federal proceeding or to a federal office or
agency, the disclosure does not operate as a waiver in a
federal or state proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable
steps to prevent the disclosure; and
(3) the holder promptly took reasonable steps to rectify the
error, including (if applicable) following Federal Rule
of Civil Procedure 26(b)(5)(B).
In this instance, Defendant asserts that the documents at issue were not voluntarily
disclosed to Plaintiffs; rather, they were inadvertently produced as part of a large production
associated with the Dukes litigation. Docket No. 163, p. 8-10. As is customarily done in such
actions, the Parties appear to have anticipated that inadvertent productions could occur and
stipulated that such productions would be governed by an agreement that allowed the producing
party to “claw back” the documents at issue. See Docket No. 174, p. 21 (“Plaintiffs recognize
that the parties entered into a stipulation regarding inadvertent disclosure of privilege[d] material
in the Dukes litigation, Stipulation with Proposed Order, Dukes et al. v. Wal-Mart Stores, Inc.,
No. 01-CV-2252 (N.D. Cal. Feb. 25, 2013), Dkt. 856, which governs the production of the Dukes
documents in this case and includes a clawback provision.”) Defendant contends that it followed
the protocol established by that agreement. Docket No. 163, p. 10. As to whether Defendant
took reasonable steps to prevent the disclosure, the Advisory Committee notes to Rule 502 state
The stated factors (none of which are dispositive) are the
reasonableness of precautions taken, the time taken to
rectify the error, the scope of discovery, the extent of
disclosure and the overriding issue of fairness.
Other considerations bearing on the reasonableness of a
producing party’s efforts include the number of documents
to be reviewed and the time constraints for production.
Depending on the circumstances, a party that uses
advanced analytical software applications and linguistic
tools in screening for privilege and work product may be
found to have taken “reasonable steps” to prevent
Fed. Rules Evid. R. 502, Advisory Committee Note, Subdivision (b).
The number of documents exchanged in discovery in the Dukes litigation is very high;
Defendant contends that “[d]uring a three-month period, a team of more than 300 contract
attorneys logged more than 55,000 hours to search approximately 26 million [Defendant]
documents (about 2.85 terabytes of data) and review about two million documents for
responsiveness, confidentiality, and privilege.” Docket No. 163, p. 9. Defendant appears to
have used analytical software applications and linguistic tools in screening documents for
production. See, e.g., i.d. at 11 (“[t]he parties discussed these documents during a September 28,
2017 telephonic meet and confer discussion about ESI search terms.”) 4 Plaintiff has only
pointed to a small number of documents that Defendant claims are protected by privilege or
work product but were nevertheless inadvertently produced. See, e.g., Docket Nos. 176-2, 178180. This represents only a tiny fraction of the overall production. The Court finds that under all
the circumstances, including the very high volume of documents involved and the use of analytic
software, Defendant took reasonable steps to prevent the disclosure of protected documents.
As to whether Defendant promptly took reasonable steps to rectify the error, the Court
finds that Defendant acted reasonably in engaging in dialogue with Plaintiffs regarding the
documents over the course of several months, before seeking to claw back the documents when
they were attached to Plaintiffs’ Motion to Compel. The Advisory Committee Notes further
state that “[t]he rule does not require the producing party to engage in a post-production review
to determine whether any protected communication or information has been produced by
mistake,” although the party must “follow up on any obvious indications that a protected
communication or information has been produced inadvertently.” Fed. Rules Evid. R. 502,
Advisory Committee Note, Subdivision (b). Plaintiffs argue that such obvious indications
existed in the past, such as when “similar documents” were used during the Coughlin deposition
during Dukes. Docket No. 174, p. 18. The Court finds that under all the circumstances, it is not
unreasonable that Defendant did not discover the small number of inadvertently-produced
documents at that time.
Plaintiffs’ argument that Defendant’s production also includes “no fewer than fifteen
documents that are near duplicates of the documents [Defendant] now says are privileged and
The term “ESI” stands for Electronically Stored Information, and a discussion about ESI search
terms in the context of discovery almost certainly implies the use of analytical software
applications and linguistic tools.
has attempted to claw back” is unpersuasive; fifteen “near duplicates” out of the voluminous
production in this case is de minimis, and does not convince the Court that Defendant failed to
exercise care in producing documents or in attempting to rectify the error of producing a small
number of protected documents. Docket No. 174, p. 18-19.
Given that the Parties were engaged in ongoing discussion regarding the documents, the
Court finds that Defendant proceeded reasonably in invoking the claw-back provision in early
January 2018. In light of that, the Court finds that disclosure of these documents does not
constitute a waiver of any protection to which the documents may be entitled.
E. Court’s Prior Ruling
Defendant argues that the Court’s prior Order, addressing another Motion to Compel
filed by Plaintiffs, restricts production to documents connected to the “Region 43
decisionmakers.” Docket No. 163, p. 13, citing Docket No. 136, p. 1-3. While the Court found
in that dispute that “in order for a document, policy or practice to be relevant the decision maker
has to be aware of that document, policy or practice” (Docket No. 136, p. 1-2), here, Plaintiffs
argue that the decisions regarding Defendant’s new compensation structure were not made by
Region 43 decisionmakers, “the new structure did not permit regional or local managers to
assign an individual or position to a different pay level than that dictated by the new
compensation structure,” and thus, “whether the core group of Region 43 decisionmakers saw
these documents is not determinative of their relevance to the claims here.” Docket No. 153, p.
5. To the extent that these decisions were made above the level of the Region 43 decision
makers, as Plaintiff asserts, the Court agrees that whether documents were provided to Region 43
decision makers is irrelevant, and therefore finds that its prior Order (Docket No. 136) does not
restrict Plaintiffs’ ability to discover Hay Group documents.
For the foregoing reasons, the instant Motion (Docket No. 152) is GRANTED IN PART
and DENIED IN PART. Defendant is ORDERED to produce non-privileged, non-protected
documents responsive to Plaintiffs’ Requests for Production Nos. 5, 6, and 7, without regard to
whether such documents were shared with the “core decisionmakers” of Region 43.
IT IS SO ORDERED.
Jeffery S. Frensley
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?