United States District Court, D. Maine
DAVID E. MURRAY, Plaintiff
WAL-MART STORES, INC., and WAL-MART STORES EAST, L.P., Defendants
MEMORANDUM DECISION AND ORDER ON DEFENDANTS'
MOTION FOR PROTECTIVE ORDER
H. Rich III United States Magistrate Judge
employment action, the defendants, Wal-Mart Stores, Inc., and
Wal-Mart Stores East, L.P. (together,
“Wal-Mart”), move for a protective order pursuant
to Federal Rule of Civil Procedure 26(c) narrowing the scope
of Request No. 28 of the Plaintiff's Third Request for
Production of Documents (“Plaintiff's Third
RFP”). See Defendants' Motion for
Protective Order (“Motion”) (ECF No. 164).
Because I agree that the request must be narrowed, but
disagree with Wal-Mart's suggested method of narrowing
it, I grant the motion in part, to the extent that I limit
its scope to market-level employees and above, and otherwise
Applicable Legal Standards
must be “proportional to the needs of the case,
considering the importance of the issues at stake in the
action, the amount in controversy, the parties' relative
access to relevant information, the parties' resources,
the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1).
“The court may, for good cause, issue an order to
protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including one or more
of the following: . . . limiting the scope of disclosure or
discovery to certain matters[.]” Fed.R.Civ.P.
a telephonic discovery hearing on September 27, 2018, I
ordered Wal-Mart to respond to Request No. 28 of plaintiff
David E. Murray's Third RFP, which seeks:
All documents, records, electronically stored information,
o[th]er types of information, tangible things, and all other
materials within the scope of Fed.R.Civ.P. 34 that refer to
or concern any current-reinstated or past Wal-Mart Associate
that was not paid within the requirements of 26 M.R.S. 626,
or other similar laws within the New England Division,
including any violations from 2006 to date (Management and
Motion ¶ 1; ECF No. 161. At the hearing, Murray agreed
to limit his request to management employees, and I ruled
that Wal-Mart need only produce information for the four-year
period commencing a year prior to the filing of his complaint
on August 26, 2015 (that is, commencing August 26, 2014),
rather than for the requested 12 years. See ECF No.
161. I did, however, acknowledge that Murray's request,
even as modified, might not be proportional under Rule 26,
and informed Wal-Mart that, if the request proved burdensome,
I would entertain a motion for protection. Wal-Mart has now
filed such a motion.
motion, Wal-Mart represents that, as modified during the
discovery hearing, Murray's request would return results
for roughly 12, 580 to 25, 160 employees at the approximately
1, 258 stores in the 15 states comprising the “New
England Division.” See Motion ¶ 11. It
argues that “even the narrowed scope of Request No. 28
remains disproportionate to the needs of the case.”
Id. ¶ 14. Wal-Mart proposes to limit the scope
of the request to the State of Maine and provide Murray with
a randomized sample of 20 percent of the search results.
See id. ¶ 15.
response, Murray reiterates a prior offer to narrow the
geographic scope of his request to “only the states of
Maine, New Hampshire, Vermont, Massachusetts and New
York[.]” Plaintiff's Opposition to Defendants'
Motion for Protective Order (“Opposition”) (ECF
No. 171) ¶ 2. Wal-Mart rejoins that even a limitation to
the five states Murray mentions would still involve
approximately 3, 000 employees. See Defendants'
Reply in Support of Their Motion for a Protective Order
(“Reply”) (ECF No. 176) at 4.
with Wal-Mart that the request, even as narrowed during the
discovery hearing, is unduly burdensome. However, I reject
Wal-Mart's randomized sample proposal. Wal-Mart neither
outlines the statistical modeling methods it would use nor
proposes to hire a third-party vendor to produce the
randomized sample. In these circumstances, nothing would
prevent Wal-Mart from selecting the most favorable 20 percent
of employees. Further, I decline to limit the geographic
scope of Murray's request, which is informed by
Wal-Mart's own organizational structure. To the extent
that Murray is alleging that executives senior to him
participated in retaliation against him, there is a logical
nexus between his claims and the geographic division in which
he served. Regardless, Wal-Mart has previously offered a
better solution for narrowing the scope of discovery.
originally proposed that Request No. 28 should be limited to
“market level associates and above for two
years.” Motion ¶ 2. At the hearing on September
24, 2018, Murray successfully argued that a two-year period
was too short to reflect any correction by Wal-Mart of
allegedly unlawful behavior, and I ruled that Wal-Mart should
produce material spanning the four-year period commencing one
year prior to the filing of this suit. See ECF No.
161. For the same reason, I remain persuaded that four years
is the correct temporal scope for this request.
I now order that Request No. 28 be limited in scope to
market-level employees and above. Wal-Mart has five levels of
management within its New England Division: assistant store
managers, co-managers, store managers, market managers, and
regional managers. See Motion ¶ 11. To the
extent that Murray is seeking a comparator, store-level
management employees are poor comparators for Murray, who was
a market-level executive. Moreover, a limitation to the top
two tiers of managers (first advocated by Wal-Mart, as noted
above) should resolve Wal-Mart's concern about
disproportionate discovery. According to Wal-Mart, there are
only 108 markets in the relevant New England Division.
See Id. Limiting the scope of discovery to
market-level employees and above would reduce the scope of
employees from five levels of management to two. See
Id. Since the upper levels of management likely contain
fewer employees per position, this should dramatically reduce
the number of employees at issue, addressing Wal-Mart's
concern that Request No. 28 is unduly burdensome.