18th Annual Workplace Class Action Report - 2022 Edition

576 Annual Workplace Class Action Litigation Report: 2022 Edition attorney-client privileged and excluded from discovery responses. The Court disagreed. It found that due to the companies’ work doing remediation, the attorney-privilege protection was lost, as the companies were essentially fact-witnesses. However, the Court opined that the documents that Defendant designated as privileged were correctly designated, as they were made in connection with consulting for the defense of the litigation, and communications regarding operational assistance motivated by "strategic litigation considerations." Id . at *13. The Court further ruled that some of the documents that Plaintiffs argued should remain part of discovery because of a claw-back request were also protected because they related to data collection the contractors had provided on behalf of defense counsel. Chabat, et al. v. Walgreens Boots Alliance, 2021 U.S. Dist. LEXIS 46546 (M.D. Penn. March 12, 2021). Plaintiffs, a group of investors, filed a class action alleging that Defendants made material misrepresentations regarding the likelihood that regulators would approve a merger between Rite Aid and Walgreens, which led to artificially inflated stock prices. During discovery, Plaintiffs requested to exceed the deposition limit in order to depose three individuals beyond those previously agreed upon. Defendants agreed to the deposition of one of the three individuals and contested Plaintiffs’ request as to the two others on grounds of duplicity. The parties also sought the Court’s assistance in resolving a dispute as to how the remote deposition expenses should be paid. Id . at *2. Plaintiffs sought to exceed the 16 depositions agreed to by the parties in order to depose Defendant’s Divisional Vice President – Planning & Performance, Senior Vice President, and Global Treasurer. Id . at *2-3. The Court explained that no depositions had yet been conducted, and parties should ordinarily exhaust their allowed number of depositions before making a request for additional depositions. Id. at *4. The Court reasoned that it was difficult to establish that additional depositions would not be cumulative or duplicative when no depositions had occurred. Id. at *7. Further, Plaintiffs conceded that there could be some overlap in testimony. The Court thus found that Plaintiffs’ request was premature, and failed to demonstrate that it would not be cumulative or duplicative of other testimony. As such, the Court overruled Plaintiffs request without prejudice to making their request again at a later date if necessary. The Court also held that when depositions were conducted in person, the costs of copying exhibits were borne by the noticing party, and that should stay consistent when the depositions were remote. Id . at *10. Frazier, et al. v. Morgan Stanley, 2021 U.S. Dist. LEXIS 123554 (S.D.N.Y. July 1, 2021). Plaintiffs, a group of African-American employees, filed a class action alleging that Defendant subjected them to disparate treatment and disparate impact employment discrimination on the basis of their race in violation of 42 U.S.C. § 1981 ("Section 1981") and Title VII of the Civil Rights Act of 1964 ("Title VII"). The Court dismissed all claims except the disparate treatment claims brought by Plaintiffs under § 1981. Id . at *2. During discovery, he Court issued a revised case management plan and scheduling order and set a deadline of February 22, 2021 for the completion of all fact discovery and depositions. Defendant thereafter moved for a protective order with respect to subpoenas duces tecum served by Plaintiffs on two non-parties who formerly served as Diversity Monitors (the "DMs") at the company as well as other written discovery requests of Plaintiffs. Plaintiffs moved to compel Defendant to respond to certain requests calling for the production of materials pertaining to its nationwide employment and compensation policies. Plaintiffs requested that Defendant produce "Plaintiffs’ complete email boxes" for the duration of their respective periods of employment, which Defendant refused to do on the grounds of burden, since that would entail review every email for relevance and confidentiality issues. Id . at *4. The Court determined that Plaintiffs provided no evidence to support their assertion that a "majority" of the hundreds of thousands of emails in their email boxes would be somehow relevant to their claims. Id . at *5. Accordingly, the Court denied Plaintiffs’ request for production of additional emails as overly burdensome and not proportional to the issues in the case. Plaintiffs also moved to production of "already-prepared studies and reports” analyzing Defendant’s firm-wide practices relating to teaming, account distribution and its training program. Id. at *6. The Court determined that Plaintiffs’ broad requests for all nationwide studies and reports analyzing Defendant’s teaming, account distribution, training programs, EEO-1, and affirmative action plans were largely irrelevant or disproportionate to Plaintiffs’ remaining disparate treatment claims. However, the Court reasoned that to the extent Defendant possessed company-wide policies regarding teaming, account distribution, affirmative action, and FA training or retention, those materials would be relevant to Plaintiffs’ disparate treatment claims and should be produced. Finally, the Court required production of documents in part relative to the requests for DM materials.