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Shirley Craig, et al v. Rite Aid Corporation and

March 30, 2012


The opinion of the court was delivered by: Martin C. Carlson United States Magistrate Judge

(Judge Jones)

(Magistrate Judge Carlson)



A. Overview of the Case

Shirley Craig and others (collectively, "Plaintiffs") initiated this action for overtime compensation under the Fair Labor Standards Act ("FLSA") with the filing of a collective action complaint on December 29, 2009. (Doc. 1) At bottom, the case concerns Plaintiffs' claims that Rite Aid misclassified Assistant Store Managers as exempt employees under the FLSA. The District Court in this case subsequently entered an order conditionally certifying the following collective class for purposes of providing notice of the action and an opportunity to opt-in: "All individuals classified as exempt from the FLSA's overtime pay provisions and employed as salaried Assistant Store Managers during any workweek within the previous three years in any of the 4,901 stores identified in Rite Aid Corporation's April 17, 2009 Annual Report as being operated by Rite Aid Corporation." (Doc. 72) Thus far, more than 1,000 individuals have identified themselves as putative opt-in plaintiffs in the course of this litigation.

B. Defendants' Motion for Partial Reconsideration of the Court's February 9, 2012 Memorandum Opinion (Doc. 508) Ruling on Defendants' Assertion of the Attorney-Client Privilege and Work-Product Doctrine as Grounds to Withhold Production of Certain Documents

On February 9, 2012, the Court entered a memorandum opinion in which we ruled upon Defendants' invocation of both the attorney-client privilege and the work-product doctrine as bases to withhold production of a number of corporate documents that Plaintiffs have sought in discovery. (Doc. 508) In a number of instances, we found that Defendants reliance upon either the attorney-client privilege or work-product protection was improper or unsubstantiated, and we ordered Defendants to produce the documents in question. (Id., at 29-43.) With respect to other categories of documents, we noted that although we could perceive how the documents might be covered by privilege or work-product protection, we found that the Defendants had not sufficiently demonstrated that the documents were privileged or protected. In these instances, we provided Defendants with an final opportunity to explain the basis for withholding the documents. (Id., at 44-52.)

On February 23, 2012, Defendants filed an in camera submission containing additional information regarding documents PRV 74-76, 216, 7291-7296, and 7308, which are those documents that the Court found could be privileged, but which we concluded Defendants had not sufficiently demonstrated should be withheld. (Doc. 514) (Notice of in camera submission.) In renewing their request that these documents be withheld as privileged or otherwise subject to work-product protection, Defendants have relied upon a second, and more detailed, declaration from Ron S. Chima, Senior Counsel to Rite Aid. ("Chima Decl. II.")

In addition to submitting this additional support for those documents that the Court expressly identified as potentially privileged or protected, Defendants have also requested that the Court narrowly reconsider its ruling that a limited number of additional documents must be produced because the attorney-client privilege or work-product doctrine did not shield them from production, at least in part. With respect to this request, Defendants' request is very narrowly tailored. The Defendants have asked only that the Court permit them to redact discrete information appearing in certain documents that Defendants contend reflects confidential advice from Rite Aid counsel about legal matters, as confirmed by their more detail declaration. In support of this request, Defendants have also relied upon Ron Chima's second sworn declaration in which he explains the nature of the documents in question, and the reasons for the company's assertion of the privilege.

We will consider these documents separately below, beginning with the documents for which the Court invited Defendants to submit additional information, before turning to those documents for which Defendants have urged the Court to reconsider its ruling to permit limited redaction.*fn1


A. Documents for Which the Court Permitted Defendants to Submit Additional Information

1. PRV 74-76

These documents consist of internal communications between and among members of Rite Aid's restructuring team, and include emails exchanged between Kristin Crandall, Rite Aid's Vice President of Field Human Relations, and Bradley Sapp, the then Director of Labor Relations for the West Coast. In the emails, Ms. Crandall solicits Mr. Sapp's input on certain proposed changes to the store leadership structure, and Mr. Sapp provides detailed guidance ...

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