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Murphy v. Kmart Corp.

January 9, 2009


The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge



This matter is before the court pursuant to defendant's motion to compel plaintiff to produce third-party witness affidavits. [Docket 86]. Defendant has represented to the court that it has made a good-faith effort to resolve this discovery dispute without the court's intervention. See Docket 87. Defendant's motion to compel was referred to this magistrate judge for resolution pursuant to Chief Judge Karen E. Schreier's order dated November 3, 2008. [Docket 94].


The court will limit the following recitation to those facts relevant to this discovery dispute. Mr. Murphy brought suit in this court against Kmart Corporation ("Kmart"),*fn1 alleging one count of age discrimination and one count of intentional infliction of emotional distress stemming from the loss of his employment as a Kmart store manager on November 15, 2005.*fn2 Id.

Mr. Murphy had been employed at Kmart for approximately thirty years, from May 1975 to October or November 2005,*fn3 and, at the time his employment was terminated, was a store manager at the Rapid City Kmart location. Id.

Mr. Murphy alleges that his supervisor, Kmart district manager Jerry Rudrude, constructively discharged Mr. Murphy by creating intolerable working conditions designed to force Mr. Murphy to resign. Id. Mr. Murphy alleges that Mr. Rudrude subjected him "to open criticism and verbal abuse before subordinates," gave him "poor-performance appraisals that were unwarranted," subjected him "to a disciplinary proceeding which was unwarranted," and required him "to meet heightened performance standards." Id. Mr. Murphy claims that Kmart knew or should have known of the harassment, yet failed to take prompt remedial action, and that Kmart willfully and intentionally discriminated against Mr. Murphy on the basis of age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. Id. Mr. Murphy also claims that he suffered severe emotional distress as a result of the deliberate actions of Kmart and Mr. Rudrude. Id. Mr. Murphy seeks to recover liquidated damages, compensatory damages, punitive damages, attorney's fees, costs, and front pay or, if appropriate, reinstatement of employment with retroactive restoration of benefits. Id.

Kmart denies Mr. Murphy's claims in their entirety and asserts numerous defenses. See Docket 8. Kmart moves to dismiss the complaint on the ground that Mr. Murphy failed to state a claim upon which relief may be granted and failed to comply with the applicable statute of limitations. Id. Kmart also argues that Mr. Murphy's claims are barred or limited by the doctrines of waiver, estoppel, accord and satisfaction, ratification, laches and/or presumption and by the exclusivity provisions of the South Dakota Worker's Compensation Act. Id. Kmart alleges that it acted in good faith based upon reasonably necessary business concerns and that Mr. Murphy's misconduct would have resulted in his termination. Id. Kmart maintains that, if Mr. Murphy suffered damages, those damages were the result of his own intentional or negligent acts or omissions. Id. Kmart also charges Mr. Murphy with failing to mitigate his damages, failing to pursue the preventative and corrective opportunities offered by Kmart, and failing to comply with jurisdictional, procedural, and administrative prerequisites for filing his complaint. Id.

On December 17, 2007, Kmart served Mr. Murphy with its first set of requests for production of documents and its first set of interrogatories. See Docket 88, Exh. 1 & 2. Request for production number eight sought "[a]ll statements from any person that refer or relate to the claims alleged in the Complaint in this matter." See Docket 88, Exh.1. Interrogatory number five asked Mr. Murphy to "[i]dentify each person known or believed by you to have personal knowledge of any of the facts at issue or involved in the above-captioned lawsuit or any of the events underlying the allegations in the Complaint, Answer, or any other pleading, and separately state the facts and observations within each such person's knowledge." See Docket 88, Exh. 2. Interrogatory number six asked Mr. Murphy to "[i]dentify each person from whom written and signed (or otherwise adopted or approved), recorded or transcribed statements or reports have been secured with respect to any of the matters relating to the allegations in the Complaint, or Answer and for each person identified, identify each document that evidences such statements or reports." Id.

On February 15, 2008, Mr. Murphy served his response to Kmart's first set of requests for production of documents and first set of interrogatories. See Docket 88, Exh. 4; Docket 115, Exh. 1. In response to interrogatory number five, Mr. Murphy identified approximately 82 individuals with personal knowledge of the subject matter of this litigation. See Docket 115, Exh. 1. In response to interrogatory number six, Mr. Murphy stated that there was no such person from whom written statements have been obtained other than various witness depositions from other Kmart litigation. Id. In response to request for production number eight, Mr. Murphy referenced a note written by one of the individuals identified in his response to interrogatory number five. See Docket 88, Exh. 4.

On October 24, 2008, Mr. Murphy served supplemental answers to Kmart's first set of interrogatories.*fn4 See Docket 88, Exh. 5. Mr. Murphy identified three additional individuals with respect to interrogatory number five. Id. With respect to interrogatory number six, Mr. Murphy acknowledged that he had obtained affidavits from certain individuals during the course of his investigation,*fn5 but objected to the discovery of the such material on the basis of the attorney work-product doctrine. Id. Mr. Murphy also provided a privilege log, identifying four affidavits,*fn6 the dates the affidavits were executed,*fn7 the basis of the privilege (attorney work product), and a document description. See Docket 88, Exh. 10. Mr. Murphy described each affidavit as a "[s]tatement of witness, given to Plaintiff's law firm regarding facts and opinions in this case." Id.

On October 30, 2008, Kmart filed a motion to compel Mr. Murphy to produce the disputed third-party witness affidavits. See Docket 86. Kmart also moves the court to award its reasonable attorneys' fees and expenses incurred in making the motion and to afford Kmart the opportunity to depose the affiants who signed the affidavits. Id. Kmart argues that the attorney work-product doctrine does not protect from disclosure signed third-party witness statements, even if such documents were drafted by Mr. Murphy's counsel. See Docket 87. Kmart contends that the affidavits set forth the facts relating to the case and reflect the opinions of the affiants, not that of counsel. Id. Kmart further asserts that any privilege, if applicable, was waived when the affidavits were shared with the third-party witnesses. Id. Kmart states that it has substantial need of these affidavits as Mr. Murphy has identified over 80 individuals with knowledge of the facts and circumstances relating to this case. Id. In the alternative, Kmart argues that, even if the work-product doctrine applies to the affidavits, the facts contained in the affidavits are discoverable. Finally, Kmart argues that Mr. Murphy failed to provide an adequate privilege log that identified the affiants and described that nature of the affidavits in such a way as to allow Kmart to assess the claim of privilege. Id.

Mr. Murphy resists Kmart's motion to compel in its entirety on the basis that the affidavits are both opinion work product and ordinary work product and should be protected from discovery. See Docket 114. Mr. Murphy argues that the affidavits, drafted based on conversations between his attorney and the affiants, reflect his attorney's mental impressions because the affidavits reflect those facts that the attorney deemed legally significant and those witnesses considered important to this litigation. Id. Mr. Murphy also argues that the affidavits constitute ordinary work product because his counsel drafted them in anticipation of litigation and Kmart has failed to show a substantial need for the affidavits. Id. Finally, Mr. Murphy maintains that the act of providing a copy of the affidavit to the affiant does not constitute a waiver of the work-product privilege. Id.


A. The Work Product Privilege

Federal Rule of Civil Procedure 26(b)(1) sets forth the standard governing the scope of discovery in civil cases:

(b) Discovery Scope and Limits

(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense--including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

See Fed. R. Civ. P. 26(b)(1).

In a diversity case such as this, questions regarding the work product doctrine are resolved according to federal law. Baker v. General Motors Corp., 209 F.3d 1051, 1054 (8th Cir. 2000). The federal work product doctrine, first established in Hickman v. ...

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