Phipps et al v. Wal-Mart Stores, Inc.

Filing 214

ORDER granting #164 Motion to Quash. 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
NASHVILLE DIVISION

CHERYL PHIPPS and SHAWN GIBBONS,
Plaintiffs,
v.
WAL-MART STORES, INC.,
Defendant.

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Case No. 3:12-cv-01009
Judge Lawson/Frensley

ORDER
This matter is before the Court upon “Motion of Defendant Wal-Mart Stores, Inc. to
Quash the Subpoena to Hay Group, Inc.” Docket No. 164. Defendant has also filed a supporting
Memorandum of Law. Docket No. 165. Plaintiffs have filed a Response in Opposition. Docket
No. 174. For the reasons discussed below, Defendant’s Motion is GRANTED.
I. THE DISCOVERY MATTER 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.

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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,
p. 2.

The Hay Group is a third party consultant that worked with Defendant during the time of
the Dukes litigation. 2 Docket No. 153, p. 5; Docket No. 165, p. 5. The Parties have been
involved in a discovery dispute regarding documents related to the Hay Group’s work. See
Docket Nos. 152, 153, 163, 174. Those documents have been loosely termed “the Hay Group
documents.” Id. In addition to moving to compel production of the Hay Group documents from
Defendant, Plaintiffs also served document requests by subpoena on the Hay Group. Docket No.
149-1. The documents requested are:
1. All documents pertaining to the creation and implementation of
a new pay classification structure at Defendant’s stores, including
but not limited to:
a. All questionnaires and surveys conducted by you or
anyone acting at your direction or request, including
responses to those questionnaires and surveys, and any
analyses or summaries of same;
b. All documents related to focus groups, interviews, or
site visits conducted by you or anyone acting at your
direction or request, including but not limited to dates and
locations of those focus groups, interviews and site visits,
minutes, transcripts, agendas, notes, attendance records and
recordings;
c. All documents reflecting the methods and analyses you
used in formulating recommendations about Defendant’s
pay classification structure;
d. All documents related to a “neutralization adjustment”
made by Defendant, to adjust pay rates at the time of

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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.
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implementing the new hourly pay structure in a manner
which would reduce gender disparities; and
e. Any communications on the above listed topics.
2. All documents related to any recommendations or proposals
made by you to Defendant concerning Defendant’s evaluation of
or compensation for hourly or salaried employees working in
Defendant’s retail stores, including any communications with
Defendant regarding same.
3. All documents related to any recommendations or proposals
made by you to Defendant concerning Defendant’s policies or
procedures for considering and selecting individuals for promotion
to any position in Defendant’s retail stores, including any
communications with Defendant regarding same.
Docket No. 149-1, p. 7-8.
II. 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. Standing to Challenge Subpoenas
Defendant’s Motion is directed at a third party subpoena and implicates the question of
standing, which requires the Court to determine whether Defendant has alleged “such a personal

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stake in the outcome” of its Motion “as to warrant . . . invocation of federal court jurisdiction and
to justify exercise of the Court’s remedial powers.” Loren v. Blue Cross & Blue Shield of
Michigan, 505 F.3d 598, 607 (6th Cir. 2007), quoting Warth v. Seldin, 422 U.S. 490, 498-99, 95
S.Ct. 2197 (1975). Defendant contends that it does have such standing (Docket No. 165, p. 11),
and Plaintiffs do not contest the issue. See Docket No. 174. As the documents sought are
exclusively those related to the Hay Group’s work with Defendant, the Court finds that
Defendant has standing to challenge the subpoena to the Hay Group.
C. The Subpoena to the Hay Group
On timely motion, Rule 45 of the Federal Rules of Civil Procedure requires the court to
quash or modify a subpoena that: (1) does not allow reasonable time to comply; (2) requires a
nonparty to travel more than 100 miles from his or her residence; (3) requires disclosure of a
privileged or protected matter; or (4) subjects a person to an undue burden. Fed. R. Civ. P.
45(d)(3)(A). This Court has previously found that the documents sought by the subpoena to the
Hay Group are protected by the work product doctrine. See Docket No. 213. Because
compliance with the subpoena would require the Hay Group to disclose protected matter, for the
reasons explained in the Court’s prior Order, Defendant’s Motion (Docket No. 164) is
GRANTED and the subpoena to the Hay Group is QUASHED.

IT IS SO ORDERED.
___________________________________
Jeffery S. Frensley
United States Magistrate Judge

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