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Murray v. Wal-Mart Stores Inc.

United States District Court, D. Maine

October 9, 2017

DAVID E. MURRAY, Plaintiff
v.
WAL-MART STORES, INC., et al., Defendants

          MEMORANDUM DECISION ON REQUEST TO RECONSIDER DISCOVERY RULING

          John H. Rich III United States Magistrate Judge.

         The plaintiff in this employment action seeks reconsideration, or clarification, of my earlier discovery ruling, see Report of Hearing and Order re: Discovery Dispute, January 11, 2017 (“January Order”) (ECF No. 46), protecting the defendants from disclosing the details of an investigation by outside counsel into the plaintiff's markdown practices[1] at the time that he was a Market Manager for the defendants. For the reasons that follow, I grant in part the plaintiff's request, as amended, and otherwise deny it.

         I. Procedural Background

         The procedural history of the plaintiff's request is a long one. Its genesis is corporate deposition Topic 21, included in the plaintiff's Rule 30(b)(6) corporate deposition notice of the defendants, which read as follows:

21. The investigation of Plaintiff regarding markdown practices, including his interview by investigator Matt Yoes, an Investigator in Wal-Mart's Global Investigations unit, and outside counsel Kelly Foss and Pietra Lettieri, on or about September 5, 2014.

         By way of background, the defendants conducted the investigation at issue with a team that included both a staff investigator and outside counsel from the law firm of Harris Beach, PLLC. The defendants had retained the services of Harris Beach a year earlier, in October 2013, in response to allegations of similar inventory manipulation at stores throughout the Wal-Mart nationwide chain. The investigation into the allegations against the plaintiff were treated as part of the same larger investigation, and Wal-Mart investigator Matt Yoes and Harris Beach outside counsel, Attorneys Kelly Foss and Pietra Lettieri, interviewed the plaintiff on September 5, 2014.

         The defendants objected to corporate deposition Topic 21 on the following grounds:

Objection(s): Defendants object to this topic on the grounds that it seeks information that is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Specifically, testimony regarding Defendant[s]' investigation regarding markdown practices … has nothing to do with the facts or issues in this suit. Defendants further object to this topic to the extent it seeks disclosure of information or testimony subject to the attorney-client privilege, work product doctrine, protected by statute or policy as confidential, private and personal records and/or documents, or other privileges and immunities.

         At a telephonic discovery hearing on January 6, 2017, I construed the defendants' objections as a motion for a protective order, and I granted that motion in part and denied it in part, providing the following detailed explanation:

Corporate Deposition Topic 21 (Wal-Mart's investigation into the plaintiff's “markdown” practices while a Market Manager which was conducted by outside counsel): The defendants' motion is GRANTED in part, and DENIED in part. The defense is protected from disclosing details of the investigation by outside counsel into the plaintiff's “markdown” practices while employed at Wal-Mart. Further, the defense is protected from inquiries about the work of Investigator Yoes, because he was acting at the direction of Wal-Mart's retained outside counsel. The protection further extends to any internal documents or conclusions generated as a result of the investigation. I find these areas are protected by attorney-client privilege.
However, events leading up to the investigation by outside counsel are not protected and are therefore the proper subject of inquiry. This includes information about when, and by whom, the complaint about plaintiff's “markdown” practices was made, the contents of the complaint, and the internal process by which Wal-Mart decided to refer the matter to outside counsel for further investigation. Because outside counsel had not yet been retained at that stage, no attorney-client privilege attaches.
It is noted that this ruling is premised on an understanding that if Wal-Mart seeks to introduce evidence of alleged malfeasance by the plaintiff uncovered during the “markdown” investigation conducted by outside counsel, the attorney-client privilege protections may no longer apply, and the plaintiff may be entitled to discovery materials related to the investigation by outside counsel.

         January Order at 2-3 (emphasis in original).

         Following the January Order, the plaintiff pressed for the production of any substantially verbatim notes taken during the plaintiff's interview on September 5, 2014, under the exception to the attorney client privilege and work product doctrine contained in Fed.R.Civ.P. 26(b)(3)(C), which entitles a party to his or her previous statement if contained in a recording or transcript that is a substantially verbatim recitation. Relying on that rule, I granted the plaintiff the relief requested. S ...


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