United States District Court, D. Maine
DAVID E. MURRAY, Plaintiff
WAI-MART STORES, INC., et at, Defendants
AMENDED MEMORANDUM DECISION AND ORDER ON DISCOVERY
H. Rich III United States Magistrate Judge
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.
Murray, a former Market Manager for the defendant
Wal-Mart, 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 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 plaintiffs 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.
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
plaintiffs responses, and, when writing a subsequent report,
relied on the notes of others present to fill in any
information she may have missed about the plaintiffs
responses, see Deposition of Brandie Patton,
45:1-49:17, attached hereto as "Exhibit C." The
plaintiff now seeks the production of these notes.
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
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."
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
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
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.
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
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 plaintiffs statement.
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."
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 plaintiffs responses during his
markdown interview satisfy the requirement of Fed R. Civ. P.
26(b(3)(C)(ii). See also Casellav. Hugh O'Kane Elec.