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Edwin M. Dewitt v. Walgreen Co.

September 4, 2012

EDWIN M. DEWITT, PLAINTIFF,
v.
WALGREEN CO., AN ILLINOIS CORPORATION D/B/A WALGREENS, AND JOHN OR JANE DOE I-V, UNKNOWN INDIVIDUALS, DEFENDANTS.



The opinion of the court was delivered by: B. Lynn Winmill Chief Judge United States District Court

MEMORANDUM DECISION AND ORDER

Before the Court is Plaintiff Edwin M. Dewitt's Motion to Compel (Dkt. 29). Defendant Walgreen Co. d/b/a Walgreens maintains that communications regarding the creation and revision of a corporate policy, as well as documents referencing those topics, are protected by the attorney-client privilege and work-product doctrine. The Court ordered an accelerated briefing schedule, with which the parties have complied. Having thoroughly reviewed the pleadings and being familiar with the record, the Court will grant in part and deny in part the Motion as more fully expressed below.

BACKGROUND

Plaintiff Edwin Dewitt worked for Walgreens as the pharmacy manager of its Ontario, Oregon store. DeWitt Dep. 24:1-9, Ex. A to Warberg Decl., Dkt. 32-3. Dewitt follows Kriya Yoga, which teaches that harming another person will engender bad karma upon reincarnation. Dewitt Dep. 75:18-78:25.

In approximately August 2009, Walgreens charged Sherrise Trotz, Walgreens' Executive Pharmacy Director for Midwest Pharmacy Operations, with drafting a new Immunizer Policy requiring all Walgreens pharmacists to become certified immunizers. Trotz Decl. ¶ 2, Dkt. 32-1. According to Ms. Trotz, "the adoption and implementation of the Immunizer Policy was a top priority for Walgreens and was part of a larger initiative to transform Walgreens from an entity that customers viewed as a place to get their prescriptions filled, to a partner in their overall health care." Id.

Ms. Trotz worked primarily with Marty Szostak, a senior in-house attorney in Walgreens' Employee Relations department, on the drafting, revision and implementation of the Immunizer Policy. Id. ¶ 3. Mr. Szostak and Ms. Trotz also worked with other lawyers in Employee Relations, the Vice President of Pharmacy Operations, five other corporate Vice Presidents, and the four other Executive Pharmacy Directors in formulating the policy. Id.

The original policy became effective on September 1, 2010. Id. ¶ 4. Shortly after the original policy went into effect, Ms. Trotz began working with Mr. Szostak and the other corporate executives to revise the policy. That revised policy became effective on March 1, 2011. Mr. Szostak then revised the revised policy, which became effective on June 21, 2011. Id.

When Walgreens first implemented the policy in September 2010, Dewitt refused to become a certified immunizer. He claims that administering an immunization constitutes doing harm to that person, which his religion prohibits. See Complaint. Because Dewitt refused to become a certified immunizer, Walgreens demoted Dewitt from a full-time pharmacy manager to a floating pharmacist in December 2010. A month or so later, Dewitt quit working for Walgreens because, he says, he did not get enough hours as a floating pharmacist. After resigning, Dewitt filed this action against Walgreens, alleging discrimination based on religion in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. He alleges that Walgreens failed to accommodate his Kriya Yoga belief by demoting him to a floating pharmacist when he refused to become a certified immunizer.

On May 30, 2012, Dewitt served a Rule 30(b)(6) deposition notice on Walgreens. The Rule 30(b)(6) deposition notice requested that Walgreens designate and prepare a corporate representative to testify about:

1. the drafting of the immunizer policy and its exceptions, including possible exceptions that were considered but not included in the final policy; and

2. any exceptions and/or accommodations made under the immunizer policy company-wide.

In addition, the Rule 30(b)(6) deposition notice requested that Walgreens produce certain categories of documents at the deposition, including the following:

1. A copy of any and all drafts of the immunizer policy which were created as part of the drafting process.

2. A copy of any documents referencing, considering or discussing potential exceptions to the immunizer policy or analyzing potential ...


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